Magarahan v. Wright & Lamkin , 83 Ga. 773 ( 1889 )

Simmons, Justice.

It seems from the record in this case that the plaintiff in error was employed as a clerk by the defendants in error. On November 15th, 1888, he was discharged. Subsequently he brought a suit against the defendants in a justice’s court on the following account: “To wages as clerk from November, 15th, 1888, to December 15th, 1888, $50.00.” On the trial in the justice’s court, a judgment was rendered in his favor against the defendants for the sum of fifty dollars, the principal debt,, and interest from November 15th, 1888, and costs of court. The judgment was rendered January 25th, 1889. Defendants took the case by appeal to the superior court. When the case came on for hearing in the superior court, plaintiff moved to dismiss the appeal on the ground that the amount claimed in said suit did not exceed fifty dollars. The motion was overruled, and plaintiff’ excepted. On the trial of the case in the superior court-, under the charge of the judge, the jury found a verdict for the defendants. The plaintiff excepted to the decision refusing to dismiss the appeal, and excepted also to the refusal of the court to charge a certain request asked by the plaintiff, and excepted further to certain charges given the court, which were requested by the defendants, all of which will be seen in the official report.

1. There was no error committed by the court in refusing to dismiss the appeal on the motion of the plaintiff in the court below. The sum sued for was fifty dollars, for wages as clerk from the 15th of November to the 15th of December, 1888. If the action was well-founded, the account bore interest from the time it was due up to the date of judgment. Code, §4157, declares that if the amount claimed in said suit is over fifty dollars, either party may, as a matter of right, enter an appeal from said judgment. The amount sued for in this case being fifty dollars, and it bearing interest from the time it was 'due, the amount of principal and interest claimed at the time of the judgment would therefore be more than fifty dollars, and according to the above section of the code the plaintiff would be entitled, .as a matter of right, to enter an appeal. See upon this point Ansley v. Jordan, 61 Ga. 482; and Dykes v. Woolsey, 62 Ga. 608, where this court says: “Where the sum claifhed, including principal and interest, exceeds fifty dollars, there may be an appeal from the justice court to the superior court.” See also Bell v. Morton, 68 Ga. 831.

2. We do not think that either the request to charge made by the plaintiff and refused by the court, or the request to charge made by the defendants and given by the court, was a correct exposition of the law upon this subject. The request of the plaintiff was, in substance, that when there was a hiring, and no particular length of time specified, the inflexible rule was that the hiring was for a year. The request of the defendants as given by the court was, that if the plaintiff was employed at so much per month, without any statement as to time, then this would be termed in law an indefinite hiring, and would not extend beyond a month. We think that the true rule is that lhid down by the Supreme Court of Kentucky in the case of Smith v. Theobald, 5 S. W. Rep. 394. That rule is as follows : “Where a person is hired to serve another without any agreement as to the duration of service, there is no inflexible rule of law as to the length of time the hiring is to continue. The question as to the length of time the hiring is to continue will be governed by the circumstances of each particular case. If one is hired to work in a crop being raised, the presumption is, in the absence of circumstances showing a contrary intention, that his term of service is to continue during the crop season. If one is hired to do general service on a farm, the presumption is, in the absence of an agreement to the contrary, or circumstances showing a contrary intention, that the term of service is to continue for a year; The same rule applies to the hiring of persons to do service in any business that requires constant labor. As this rule is not inflexible, and may be controlled by circumstances, the circumstance of agreeing on weekly, monthly, quarterly dr half-yearly payment of wages may be sufficient of itself to create the presumption of a hiring for the corresponding periods. But the circumstances of the hiring, though no time is expressly agreed upon, may show that it was to continue for a year, although the payment of wages was to occur monthly,” etc. Story in his work on Contracts, 2d vol. §1291, lays the rule down as follows : “Where wages are payable at a stipulated period, as per week or month, or half-year, such circumstance, standing alone, indicates that the hiring is for such period. But if there be anything in the contract showing that the hiring was intended to be for a longer term, as for a year, the mere reservation of wages for a lesser term, as per week or month, will not control the hiring. Thus, where a farm servant was hired for a year at three shillings a week, with liberty to go at a fortnight’s notice, it was held to be a hiring for a year, the fortnight’s notice plainly showing that it was not a weekly hiring. So, also, where the plaintiff was engaged as editor of a review at three guineas a week, with a progressive increase of salary according to the sale of the review, and a custom was made out by which the engagements of editors to newspapers were considered as annual engagements unless otherwise expressed, the question was left to the jury, and they having found a verdict that the engagement was not for a year’s service, but only for a weekly service, the court refused to disturb the verdict, on the ground that the general rule that contracts of hiring were for a year when no definite arrangement of time was made, only created a presumption which could be rebutted by the circumstances of the case.” See also Schouler’s Domestic Relations, 4th edition, §458; Smith’s law of Master and Servant. Text-Book Series, side-page 78 ; 1 Taylor on Evidence, Text-Book Series, §177. The testimony showing in this case that the hiring was for fifty dollars per month, nothing being said by either party that the hiring, was intended to he for a longer term, such a circumstance stauding alone would indicate that it was for the period of a month. If the plaintiff had shown any other circumstance, such as the custom in Augusta in hiring clerks, or anything else tending to show that it was the intention of the parties at the time the contract was made that the employment was for a longer term than a month, it ought to have been submitted to the jury to say what the intention of the parties was ; but as he showed no other circumstances except the hiring and payment per month, this of itself, as we have seen, indicates that it was for that period; and although the judge erred in the charges given, the verdict was right, and we will not disturb it. Judgment affirmed.