King v. . R. R. , 140 N.C. 433 ( 1906 )

This was an action to recover damages for breach of contract of hiring. The following issues were submitted to the jury without objection, and answered as follows: 1. Was the contract of employment for the balance of the year? Yes. 2. Was the contract of employment for an indefinite period, leaving to the parties the right to sever their connection at will? No. 3. Is defendant indebted to plaintiff, if so, in what amount? $440, with interest from January, 1904, to date, 14 March, 1905. The plaintiff's action is founded on the following telegram sent by H. T. Elmore, general roadmaster for the defendant: "Henderson, N.C. 2 April, 1903. J. W. King: Can offer you extra force at $65 per month. Will want you at once to ditch D. N. Road and R. G. Answer quick. Job will last all the year. J. T. Elmore."

There was evidence tending to prove that the plaintiff accepted the offer at once; that he was placed in charge of the work and at the end of eleven days discharged. From the judgment rendered, the defendant appealed. There are a large number of exceptions presented in the record, but since the defendant deems only one worthy of notice, in the brief, we deem it unnecessary to discuss the others, although we have carefully considered them and find them to be without merit. The defendant contends that, first, the telegram to King did not constitute an offer of employment that would become binding upon acceptance; second, it was not an offer of employment for a definite time; and third, if it was a binding offer, the court should have (435) read into it the rules of defendant company that employees are engaged to work by the month, subject to discharge at will.

The argument of counsel that by using the potential "can offer," Elmore did not make a positive offer of employment, but only intended to open negotiations, is entirely destroyed by the undisputed evidence that the plaintiff accepted the offer by wire, reported for duty, and was placed in charge of the work and prosecuted it for eleven days until discharged. The reasons for his discharge are given in the answer, as well as Elmore's letter to the plaintiff of 23 April, 1903. There is evidence for the defendant tending to prove a different contract after the plaintiff reported for duty, but that evidence seems to have been discredited by the finding of the jury. The question was submitted to them to determine the duration of the employment and they have said it was for the remainder of the year, the burden being properly placed on the plaintiff to prove it.

A general or indefinite hiring is prima facie a hiring at will, and if the servant seek to make it out a yearly hiring, the burden is upon him to establish it by proof. Wood Master and Servant (2 Ed.), sec. 136. In his charge upon this issue, his Honor instructed the jury that the language of the telegram indicated a contract for the remainder of the year, and that if they should find it was accepted by the plaintiff and no other agreement was afterwards substituted for it, they should answer the first issue "Yes." We are unable to place any other construction upon the written words of the telegram, unless it be that the contract was to ditch the D. N. Road, and that the employment was to last until that job was completed. That construction would not help the defendant, as there is no evidence that the work was completed before the expiration of the year. Counsel for the defendant rely upon Edwards v. R. R., 121 N.C. 490, to sustain their construction of the words (436) of the telegram, as indicating a clear intent to hire by the month. We are unable to see that the case supports their contention. The letter, in the latter case, advised Edwards of his appointment as general storekeeper — "your salary will be $1,800 a year." Edwards accepted and at once, about 10 July, 1894, entered upon the performance of his duties, and was paid $150 per month until he was discharged, 1 January, 1896. The court held that the contract was not specific as to the term of service; that there was nothing on its face to justify the construction that the employment was for a year, and that the sum mentioned was merely the measure of compensation, leaving the parties to sever their relations at will.

In the case before us, the compensation and term of service are both plainly indicated, the one to be paid monthly, the other to endure for the current year. The language is sufficiently clear to justify a prudent man in so interpreting it before accepting the offer. Mining Co. v. Harris,24 Mich. 115. It is contended that according to the rules of the defendant its servants are employed by the month, subject to be discharged at its will, and that the plaintiff knew this. There is abundant evidence tending to prove the existence of such a general rule in relation to the hiring of its regular employees. But this transaction does not appear on its face to be the ordinary taking of a servant into the regular service of the company and placing him upon its pay roll. It appears to be more in the nature of a special contract to supervise a certain piece of work until completed, accompanied by a statement as to how long the service will be required. The plaintiff had been section master and knew of the general rule and custom of the defendant, but he also testified that he had known the company before to make yearly contracts of hire.

Prima facie, Elmore had the right to make the contract with the plaintiff, and there is nothing in the evidence to rebut it. No rule book is in evidence containing any rule denying such authority to a general roadmaster. Elmore's (437) jurisdiction was extensive, extending from Portsmouth to Raleigh and over the D. N. and other branch roads, so that he seems to be "one in authority" among the defendant's employees. There is evidence upon the part of the defendant which, if believed, fully justified the discharge of the plaintiff. All of it was contradicted by him. The contentions of both parties upon this feature of the case were fully presented by the judge below to the jury under the third issue. We find no vice in the instructions.

Upon review of the entire record the judgment must be

Affirmed.