132 Ark. 84 | Ark. | 1918
(after stating tbe facts). When appellants discharged tbe appellee on tbe 15th day of January there was due him tbe sum of $25.14. On tbe 31st day of January thereafter tbe appellants tendered to tbe appellee this sum, without including tbe amount of tbe interest thereon due to that date. Tbe amount of tbe interest on tbe date of tbe tender, excluding tbe seven days allowed by law for tbe appellants to bave made payment, at tbe rate of 6 per cent, per annum, would be between three and one-half and four cents.
(1) For tbe purpose of this case it may be conceded, without deciding tbe question, that in order to stop tbe running of tbe penalty it was necessary for tbe appellants to tender to appellee, not only tbe wages that were due him at tbe time of his discharge, but also tbe interest that bad accrued on tbe amount of sucb wages from tbe time of his discharge to the date that tbe tender was made. Nevertheless, even if such were the law, under the undisputed facts of this record the appellee was not entitled to recover any penalty for a failure to make such tender of interest for the reason that the amount of the interest was so small as to come within the maxim de minimis non curat lex. Broom’s Legal Maxims, page 118. The amount of interest was so small that the law will not take notice thereof, and the tender on January 31 of the amount of the wages that was due appellee on the 15th of January prevented the accrual of any penalty after the date of the tender. St. L., I. M. & S. Ry. Co. v. Paul, 64 Ark. 83; St. L., I. M. & S. Ry. Co. v. Bryant, 92 Ark. 425.
(2) Conceding that the law requires not only the Avages past due, but also the interest due up to the date of the tender, in order to stop the running of the penalty, the undisputed facts of this record make it manifest that if the appellee had made it known to the appellants that he was refusing the amount tendered because the interest was not included, that appellants would have at once included such interest. If the appellee intended to predicate his right to a penalty upon the ground that the appellants had not tendered him the interest as well as the principal at the time the tender was made, then good faith on his part required that he notify appellants of that fact. This is especially true where the item of interest was so insignificant as to make it manifest that the appellants would have included the same if their attention had been drawn to the appellee’s insistence in that respect; Hall v. C., R. I. & P. Ry. Co., 96 Ark. 634.
(3) Furthermore, the pleadings and the undisputed evidence show that the appellee would not have accepted the tender even if it had included the trifling sum of three or four cents interest that was due, in addition to the principal, on the date the tender was made. The only reasonable conclusion that can be draAvn from the pleadings and the proof is that appellee refused the tender, not because it did not include interest due, but because he claimed that the appellants were due him an additional sum for wages as a penalty that had already accrued at the time the tender was made, which additional sums were not embraced in the tender.
A tender is not required where it is evident that it will not be accepted. The law never requires “a vain thing to be done.” Read’s Drug Store v. Hessig-Ellis Drug Co., 93 Ark. 497; Thompson v. Baxter, 76 Ark. 326.
Therefore, the court erred in its instructions telling' the jury that the penalty would run until the date of the judgment, unless the appellants had tendered the wages actually earned with legal interest.
The jury might have found, under the pleadings and the evidence, that the appellee was entitled to recover the amount of his wages, $25.14, and interest thereon to the day of the trial, and $27.36 penalty up to the date the tender of his wages was made, making a total sum of $52.71.
The judgment of the trial court will be modified and reduced to this sum, and as so modified affirmed, but without costs.
II. The appellee predicates his right to recover on the second count on the provisions of section 6651 of Kirby’s Digest, as follows: “Any such servant or employee whose employment is for a definite period of time, and who is discharged without cause before the expiration of such time, may, in addition to the penalties prescribed by this act, have an action against any such employer for any damage he may have sustained by reason of such wrongful discharge, and such action may be joined with an action for unpaid wages and penalty.”
(4) The purpose of this statute was not to create an independent cause of action, ex delicto, sounding in damages as for a tort growing out of a discharge without cause, but the design of the Legislature was to give to the employee who was discharged without cause the right to recover, in addition to the penalty prescribed by section 6649 for a failure to- pay the wages due the servant or employee at the time of his discharge without cause, such damages as he may have sustained by reason of discharging him without cause before his contract had expired, where he was employed for a definite period of time. For instance, if a servant or employee, under the statute, was employed for a definite period of time, say six months or a year, and at the end of one month such servant should be discharged without cause, then, in such case, if the wages due at the time of such discharge were not paid according to the terms prescribed by such section the railway company or corporation would incur the penalties therein prescribed for a failure to pay the wages according to the provisions of that section, and in addition to the penalty thus provided the servant or employee, if his contract was for a definite period of time, and if he were discharged without cause, would have the right to recover such damages as he had sustained by reason of the breach of his contract in discharging him without cause before his contract had expired. The measure of damages in such case would be the amount of wages that he would have earned had he been permitted to work for the full period of his contract, less such sums as he might, by reasonable diligence, have earned in a similar business, making allowance for the expense of obtaining other employment. Van Winkle v. Satterfield, 58 Ark. 617.
The appellee was allowed to recover upon his second count, under an erroneous construction of the law and erroneous instructions, the sum of $500.
The pleadings and the proof do not warrant any recovery on this count, and the judgment on this count is reversed and the cause of action as set forth in the second count is dismissed.
