80 Fla. 832 | Fla. | 1920
In an action upon a contract of employment there was a verdict and judgment for plaintiff. Motion
The declaration contains several common counts in assumpsit and a special count on the contract in which it is alleged in substance that the defendant employed the plaintiff as manager of a cigar store in the city of Miami for a fixed period of time at a given salary per month; that plaintiff performed the duties assigned him as such manager and in all respects complied with the contract of employment; that defendant, without notice and disregarding his obligations under the contract, discharged the plaintiff, and although demand has been made therefor payment of the salary drie under the contract has not been made except in part, leaving a balance due plaintiff for which he sues.
Pleas of the general issue to the common counts were filed and a special plea was filed in which it is averred that defendant did not discharge the plaintiff, but, on the contrary, plaintiff of his own accord quit the employment of defendant.
The overruling of defendant’s motion for a new trial is assigned as error. Among the grounds of this motion is one that the verdict is contrary to the evidence and another that the verdict is unsupported by a preponderance of the evidence.
It appears from the testimony that the position given to plaintiff by defendant had been formerly held by one who was then in the military service of the United States Government; that during the period for which plaintiff alleges he was employed this former employee returned to Miami; that upon his return plaintiff received a communication from the defendant, which, omitting the formal commencement and conclusion, is as follows:
At the trial the only proof offered was the evidence of the plaintiff and the evidence of the defendant. The material portions of plaintiff’s evidence is as follows: “I am the plaintiff in this case. I live at Buena Vista. I am presently engaged in the Eetail Fish Business. I worked for Mr. C. W. Hill, who does business as Hill Brothers. He first offered me the position of manager at the 12th street store for a period of one year at a salary of $125.00 per month, payable $100.00 at the end of each month; he to hold back $25.00 each month for a period of six months. I told Mr. Hill I would consider the matter and talk it over with my wife, also my employer, The Bowers Southern Dredging Company. I talked the matter over with the Bowers Southern Dredging Company, and after a few days’ illness I concluded it would be better to accept employment for night work than to continue outside in all kinds of weather during the coming winter months. I sent a message to him that I would see him as soon as I got up out of bed, and in about ten days after our first conversation, he wanted to change the contract to six months, which was agreeable to me. The terms were $125.00 per month, of which $100100 would be paid in cash and the balance of $25.00 per month at the end of'the contract. I left him with the understanding that I was to work for him for six months and he would let me know
So much of the testimony of the defendant as is material for a proper understanding of the case is as follows: “My name is C. W. Hill and I am the defendant in this cause. I have no partners in my busness, but use the firm name of Hill Brothers merely as a trade name. I am engaged in the tobacco business, wholesale and retail, in Miami, Florida, and also operate cold drink stands in connection with the cigar and tobacco business. I own and operate three cigar stores in Miami, Florida; one on Avenue D, one on Twelfth Street, and one on the corner of Avenue C and Eleventh Street. During th.e year 1918 I became short of help on account of several of my employees going into the military service of the United States and I found it difficult to get competent men to replace them, in the fall of 1918, I don’t remember the exact time, I talked with Mr. Peddy, the plaintiff, about taking a position at the Twelfth Street store. I don’t remember whether I approached him or he approached me, but we talked the matter over and I told him if he wanted to work for me I would give him $100.00 per month and if he would stay six months with me, I would give him $25.00 per month additional, payable at the expiration of the six months period. I made the proposition in this way because he had quit me once before and I offered the $25.00 per month additional provided he remained six months. I don’t know anything about his contract with the Bowers Dredging Company, but I believe he reported for duty on the 11th of November, 1918; the day the armistice was signed. I did not employ him as manager of the Twelfth Street store. I manage my own business and do not have managers for any of my stores. I have never had a manager for any of the
This evidence is not sufficient to support a verdict of recovery by plaintiff. He mistakenly, we think, interpreted as a discharge the communication addressed to and received by him from defendant. A more reasonable interpretation would be that it was intended as a suggestion for an amicable adjustment of the hours of service between plaintiff and another employee of defendant in the store in which they were both employed, and the testimony of the parties tends to confirm this view. The rule here is that where a verdict in plaintiff’s favor is unsupported by the evidence and is against the weight and preponderance of the-evidence, it is the duty of the trial court to set it aside upon motion, and a failure to do so is error for which the judgment will be reversed. Silcox v. Corsa, decided this term; Dickerson et al v. Lankford, 69 Fla. 127, 67 South. Rep. 807; C. H. & N. R. R. Co. v. Burwell & Hillyer, 56 Fla. 217, 48 South. Rep. 213.
The question is not presented by the pleadings, but it appears from the evidence that after the termination of the employment of plaintiff by defendant a settlement was made with and accepted by the plaintiff in which he received payment for the service rendered by him. to defendant.
The judgment will be reversed.