Wilson v. Smith, 111 Ala. 170

Wilson v. Smith

111 Ala. 170 | Ala. | 1895

HEAD,.J.

The first and second assignments of error cannot be sustained. Whilst there is conflict in the evidence of the terms of the contract, there is no ambiguity in them from the standpoint of either party, and hence, no room for evidence of custom. There is no claim, nor proof to support such, of damages sustained by the defendant by reason of the plaintiff’s ill health. By mutual consent, the entire term of service was settled and paid for, except for August and the first half of September, and one day in May. The sole controversy is whether plaintiff ought to be paid for that time, it being admitted that she was then absent from the business, and rendered the defendant no service. Her position is that she was entitled,.by the contract of employment in the first instance, and in the next, by the assent of the defendant at the time she absented herself, to the vacation, -without deduction from her salary. The defendant’s position is to the contrary. The burden of proof was upon her, for in the absence of such contract or assent, the law entitled the defendant to recoup damages for material lost time. — Hunter v. Waldron, 7 Ala. 753; Jones v. Deyer, 16 Ala. 221; 1 Lawson’s Rights, R. & P. 458, § 259, and authorities cited; 1 Suth. Dam. 279, 280; Wood Mas. & Serv. 185, § 93. The evidence was in conflict.

The first proposition of the first charge given ex mero motu was c >rreci, but the instruction was rendered injuriously faxxlty by the qualification which assimilated the case to the supposed employment, by the people, of the President of the United States, and his right to absent himself, for the purpose of fishing, without deduction, *176for tbe time consumed, from his official salary; and the affirmation that a deduction by the employer could not be made unless there was a contract by which he could do it, the practical effect of which w¡as to induce the jury to believe that it was necessary for the defendant to show ■ that he was only entitled to the deduction by virtue of an express contract to that effect.

For the latter reason the second chirgo given was erroneous.

The third charge given was abstract. The evidence does not make a case of readiness of plaintiff to perform and refusal on the part of defendant to permit it. The evidence tends to show that it was by the desire and consent of both that the vacation was taken. It was so presented, however, that it became a question for the jury whether the vacation andmonsequent lost time were to be at the expense of the plaintiff or defendant.

Under the first count of the complaint, there might have been a recovery by the plaintiff on the special contract, upon showing that it had been fully performed by her, and that nothing remained for the defendant to do, but to pay the money due. The first charge requested by the defendant was, therefore, properly refused. The same as to the general charge on the second count.

The contract, under all the evidence, was entire, for the year 1893, at a salary of $1,000. The only question is whether defendant may recoup for lost time. The 3d charge requested by defendant was, therefore, properly refused.

An exact correspondence of allegation and proof is not required. It is enough that the one substantially corresponds with the other. The 4th charge requested was too exacting in this respect.

Reversed and remanded.