267 S.W. 564 | Ark. | 1925
STATEMENT OF FACTS.
This was an action by D. O. Chaney to recover the sum of $25, alleged to be due him for wages, and the penalty provided by 7125 of Crawford Moses' Digest. Chaney recovered judgment before a justice of the peace, and the Missouri Pacific Railroad Company appealed to the circuit court.
D. O. Chaney was a witness for himself. According to his testimony, he was hired to work as night guard *173 for the Missouri Pacific Railroad Company in North Little Rock, Arkansas. He was to receive $5 per day, and worked from the 27th day of August to the 9th day of September in 1922. He was discharged by the agent of the company who employed him, and his wages were not paid to him. He directed his wages to be sent to him at Delight, Arkansas, which was the station on the defendant's line of railroad nearest to him. About the first of October, 1922, Chaney went back to Little Rock with some prisoners. He again applied to the railroad company for his wages, and was told that a check for the amount had been sent to the station agent at Delight, Arkansas. On the 23rd day of September, 1922, Chaney went to the station agent at Delight and demanded payment of his wages. He again requested them to send his wages to Delight, Arkansas, and, after his return home, again made demand of the station agent for his wages, and was refused payment. The present suit was filed before a justice of the peace on October 26, 1922.
Other witnesses corroborated the testimony of Chaney, and it was proved by them that the check for his wages was not received by the station agent at Delight until the 27th day of November, 1922.
According to the evidence for the defendant, the check for the wages of the plaintiff was received by the agent at Little Rock on September 11, 1922, and, if the plaintiff had called at the office, it would have been delivered to him. The plaintiff did not request that the check be sent to Delight, Arkansas, until October 2, 1922.
The jury returned a verdict for the plaintiff in the sum of $50, and judgment was entered upon the verdict. Thereupon the plaintiff filed a motion for judgment in the sum of $300, notwithstanding the verdict. The circuit court denied the motion, and the case is here on appeal.
Upon his discharge and the failure to pay his wages until seven days appellant was entitled to recover as penalty, wages at the rate specified up to the time he was *174
finally paid. Section 7125, C. M. Digest. Such recovery is also allowed by
Reliance is placed by counsel for the plaintiff upon 6275 of C. M. Digest, providing that, where special damages are given by statute, and it appears by the verdict of the jury that such special damages are recoverable, the court shall render judgment for them. We do *175 not deem it necessary to decide whether or not this statute is applicable to cases of this sort. Even if it should be held applicable, the statutory damages must have been asked for before judgment was entered upon the verdict of the jury. In the instant case the motion was not made until after judgment was entered upon the verdict of the jury, and it was therefore too late, even if the statute is applicable.
We now come to the question of whether a new trial should have been granted under the general rules of practice. This cannot be done by the appellate court unless the evidence is practically conclusive against the verdict. It is the duty of the circuit court to grant a new trial where it is of the opinion that the verdict of the jury is contrary to the weight of the evidence.
On the other hand, it is the duty of this court to uphold the verdict if there is any evidence to sustain the verdict under any view of the law applicable to the case. St. L. S.W. Ry. Co. v. Ellenwood,
The circuit court denied the plaintiff's motion for a new trial, and, for aught we know, may have done so on the ground that the weight of the evidence showed that the plaintiff was not entitled to recover anything except the amount of the wages due him. In this view of the matter it could not have made any difference that the jury returned a verdict for the plaintiff in an amount greater than his wages; for this was a matter which did not work to his prejudice and of which he could not complain.
It follows that the judgment of the circuit court must be affirmed.