Opinion
September 27, 1948.
1. Trial — disputed issues of fact.
Upon disputed issues of fact whether the oral employment of a plantation manager was for a year or only from month to month, and whether his discharge was for good cause, the issues were properly submitted to the jury and the verdict, being substantially supported by the evidence, will not be reversed.
2. Actions — statute of limitations.
When an action has been brought within the time allowed by the statute of limitations and has been dismissed for want of jurisdiction, another action for the same cause may be brought within one year after the dismissal. Sec. 744, Code 1942.
3. Action — commencement of — service of process.
An action was commenced against a domesticated foreign corporation by filing a declaration and the issuance of a summons but the service of the summons was upon an unauthorized agent rather than upon the corporation's designated agent: Held that, nevertheless, the action was pending from the time of the filing of the declaration.
4. Damages — burden of proof — net profits.
A plantation manager who alleges that he was wrongfully discharged and who claims that he was to receive as a part of his compensation a commission or bonus of five per cent of the net earnings of the year has, in his action therefor, the burden of proof to show with reasonable certainty the amount of the said net profits.
5. Damages — breach of contract of employment.
In an action for breach of contract of employment, the plaintiff employee has the burden of proof to show that each of the items for which he sues was within the obligatory terms of the contract.
Headnotes as revised by Montgomery, J.
APPEAL from the circuit court of Coahoma County; ED. H. GREEN, J.
Brewer Brewer, for appellant.
We are familiar with the decisions of this court to the effect that when a suit is filed, as a rule, the running of the statute stops. But these cases, if we properly construe them, apply when the plaintiff or his attorney takes no hand in the issuance of the summons or gives no direction to the sheriff or other officer as to its service. In this case plaintiff, appellee here, in effect instructed the clerk of the court to have process issued to be served upon an individual not an agent for service of process, and the instructions of plaintiff were carried out; and more than one year had elapsed from the date of the dismissal of the suit in United States Court and the entry of appearance by appellant by motion to quash in the Circuit Court of Coahoma County on January 13, 1947.
The Frederick Smith Enterprise Company, a corporation, qualified to do business in Mississippi effective as of June 29, 1942, and had named an agent for service of process who was at all times subject to the processes of the court during the years 1945, 1946 and 1947.
With a duly appointed resident agent for the service of process, appellee, through his counsel, knew or should have known that service of process upon Jim Turner, a plantation manager, was not of any force and effect in this particular case.
Notwithstanding this knowledge on his part he, in effect, instructed the clerk that process should be issued for Jim Turner, and instructed the sheriff that process should be served upon him. There was no dereliction of duty on the part of the clerk or on the part of the sheriff, but these two officials did as they were instructed to do, the result being that there was never any valid service of process and no entries of appearance by the defendant until January 13, 1947, more than three years after the cause of action accrued, all due to instructions of appellee.
Instruction No. 1 for the plaintiff almost in so many words told the jury that appellant had employed appellee as plantation manager for the year 1943 and that a contract had been entered into by and between the two. If appellee's version is to be taken as true, there was a contract for a year's employment. If the testimony of Mr. Smith and Mr. Moss is to be given any consideration then there was no contract except that Mr. Lucas, the appellee, was to go on the plantation and while he was there was to be paid at the rate of $250.00 a month, and that if he proved satisfactory he would be retained, and if not he would be permitted to seek other employment. If the testimony of Mr. Smith and Mr. Moss is to be taken as true then there could not have been any arbitrary discharge of appellee. The instructions assume that appellee's testimony was true and that of witnesses for appellant untrue, and further assume, as appellee testified, that there was a contract for the entire year 1943. The granting of this instruction together with others hereinabove complained of certainly warrants a reversal of this cause.
It is alleged in the declaration and the verdict of the jury must have been based upon net profits of $8000.00 for the year 1943. There is no testimony that proves or tends to prove that the net profits amounted to any such figure. Appellee propounded interrogatories to appellant. These interrogatories were answered. In addition appellant, at the request of appellee, filed a condensed statement of revenue and expenses of the plantation for the year ending December 31, 1943. The answers to the interrogatories and the above referred to statement were offered in evidence by appellee. At no time was objection made to the answers or to the statement. In addition to being furnished with the answers and statement, counsel for appellee was given access to the books of account of appellant. At no time, either before or during the trial of the case, was any motion made by appellee to exclude from the statement any item therein contained.
There is no proof in the record that the net earnings were $8000.00 or is there any evidence that the interest amounted to $400.00; but, nevertheless, appellee sued for both items.
Again we say, how can it be argued that the jury awarded 5% of $8000.00 when there is not the slightest reference in any of the testimony to net earnings in the amount of $8000.00. As above stated, if the court was correct in excluding the $18,000.00 item and the $3000.00 item, the net earnings were more than $25,000.00. On the other hand, if it was not proper to exclude these items then the only proof as to the net earnings is that furnished by appellant, which shows earnings to be slightly more than $4400.00.
V.J. Brocato and Stovall Lowrey, for appellee.
First, we shall answer appellant's contention that although the suit was filed December 6, 1946, it cannot be considered to have been commenced until January 13, 1947, on which latter date appellant entered an appearance with a motion to quash the process.
Appellant has admitted in his brief the existence of a line of cases where this Court has consistently held that Section 520 of the Code of 1930, now Section 1463 of the Code of 1942, which is plain in its language, means exactly what it says.
Appellant seeks to graft an exception onto the statute by charging that appellee gave instructions as to the manner of service of process which proved to be ill-advised; that appellee in effect directed that the process be served on Jim Turner, General Manager of the defendant corporation, and that since the corporation had appointed a process agent, such service on the General Manager was not actually service at all. And that therefore, the appellee in effect directed that process not be served. Our answer to that proposition is that when this suit was filed in the Federal Court the summons was served on Jim Turner, General Manager, and the defendant corporation appeared and answered without any objection or motion to quash.
It is respectfully submitted that the instructions granted for the appellant were liberal to the extreme and considered and taken together with the instructions for the appellee, fairly, completely and adequately presented the case of appellant in its strongest and most favorable light. That the issue of fact as thus made, was peculiarly one for the jury, and with substantial and preponderant proof to support it, the verdict of the jury will not be disturbed. Cox v. Tucker, 133 Miss. 378, 97 So. 721; Brown v. Forbes, 16 Miss. 498; Whitescarver v. Mississippi Power Light, 68 F.2d 928; Faulkner v. Middleton, 186 Miss. 355, 190 So. 310; Shelton v. Underwood, 174 Miss. 169, 163 So. 828.
Appellant urges that there was no proof of Eight Thousand ($8,000.00) Dollars net profits. The appellant's president himself testified that the plantation made 782 bales of cotton; that the cotton brought $87,777.18; that the tenants' share of that cotton was $24,137.40, leaving a net amount to the Company for cotton sold of $63,639.78. Mr. Smith also testified that the total revenue from all sources excluding the tenants' share of the cotton, was $108,301.95. According to the rule of evidence announced in the case of Sharpe v. McBride, 63 So. (La.) 892, after the proceeds of the crop had been shown, it was incumbent upon the owner, who had knowledge of the expenditures, to show what the expenses were, and the burden of proving them was on him. The appellant's president was cross-examined with reference to the condensed statement of revenue and expenses filed by appellant in the Federal Court but the cross-examination covered only some of these items and at least two of the items, land rent $18,000.00 and honorarium to the president, $3,000.00, were shown by this cross-examination to be improper items of deduction in computing the net profits for the purpose of determining the compensation due the appellee. The appellant admitted $4,411.72 net profits and admitted that this figure was arrived at by deducting the $21,000.00 which the Circuit Judge held it was not proper to deduct. Other lump sum items such as "administrative expenses, $13,488.54" and "labor, $36,005.99" and "material $12,568.17" and "depreciation $2,537.94" and in fact all of the other items deducted from the gross profits according to the condensed statement of revenue and expense were unproven. We submit that the jury would have been justified in returning a verdict for Five (5%) Per Cent of $108,301.95 and such a verdict would have been supported by the evidence, except for the fact that the appellee in his declaration, although asserting that the net earnings were in excess of $8,000.00, had only demanded judgment for $1,985.00 plus interest. After the testimony was concluded the appellee filed a written motion for leave to amend his declaration, by alleging that the net earnings were $25,411.72 and by demanding Five (5%) per cent of that amount, or $1,270.58 plus the differential in salary in the amount of $1,585.00 for a total sum of $2,855.58. The trial court overruled the motion to amend on the ground that it was filed too late, after both sides had rested their cases. Accordingly, the jury was instructed that in arriving at the amount of damages they should compute the same by taking the gross income of the plantation and deducting therefrom all lawful items of expense which they believed were proven by the evidence and that in arriving at the net profits they should disregard the rent item of $18,000.00 and the Frederick Smith salary item of $3,000.00 but that they should not return a verdict in excess of the amount sued for.
The declaration filed by appellee in the trial court alleged in substance that on or about December 10, 1942, he was employed by the appellant corporation as farm manager to manage their "Matagorda Plantation" at Jonestown, Coahoma County, for the year 1943, and for his services was to be paid a salary of $250.00 per month and a bonus of five per cent on all profits and net earnings from the operation of the aforesaid plantation for the year 1943 and was to be furnished living quarters, heat, light and water; that he was paid his salary for January and February, but on March 16th, 1943, the defendant without legal reason, justification, cause or excuse attempted to discharge him, and, except as aforesaid, no payments have been made to him under the terms of his contract; that in order to minimize his damages he sought other employment whereby he earned $100.00 in May, $125.00 in July and a like amount each month through September, and that in each of the remaining months he earned $150.00; that from July 1st on he was provided, by the terms of his employment, with living quarters, and that the rental value of the house furnished him under the employment by appellant was $45.00 per month. He sued for $295.00 for March, $295.00 for April, $195.00 for May, $125.00 for June, $125.00 for July, $125.00 for August and September, and $100.00 for each of the months of October, November and December, amounting to a total of $1,585.00 plus interest at six per cent from the date of each item. He also charged that the net earnings of the plantation were more than $8,000.00, and he sued for five per cent thereof, or $400.00, with interest thereon at six per cent from December 31, 1943.
The defendant below, appellant here, filed a plea of general issue with special notice that (1) the claim was barred by the three year statute of limitations; (2) that the employment was not for the year but from month to month; (3) that the services were not satisfactory and appellee failed and refused to carry out instructions of his employer and was wholly incapable of properly managing the plantation; (4) that he was addicted to drink and thereby rendered incompetent to handle the farming operations; (5) that in addition to the $500.00 admittedly paid him the appellant paid $100.00 advanced him through one Turner and furnished him groceries in the amount of $15.38. The jury returned a verdict in favor of plaintiff below, appellee here, in the sum of $1,835.00, to which the Court added $390.19 as interest at six per cent from January 1, 1944, and rendered judgment for the total amount of $2,275.19. There was a motion for a new trial, which was overruled.
(Hn 1) The first matter to be considered is the oral contract of employment. It was contended by appellant that the employment was from month to month, while appellee contended it was for the full year. This issue was properly submitted to the jury and the jury found the employment was for the full year 1943. We cannot say from this record that the jury was not justified in so finding from the evidence.
We call attention to the fact that we are not here dealing with the right of an employer to discharge an employee at will where the only consideration for the employment is the giving and receiving of services for a stipulated monthly wage, but here we have a contract of employment where the employment was for the full year 1943 and the discharge was for alleged cause. The question of the discharge of appellee and its justification was also properly submitted to the jury on the conflicting evidence, and the jury found the appellee was discharged by appellant and that his discharge was unjustified. We cannot say this finding was not warranted by the evidence.
Appellant assigned as error the refusal of the court to grant the peremptory instruction requested by defendant, and argues that Lucas was discharged on March 16, 1943, and that this suit was barred by the three year statute of limitations when it was filed on December 6, 1946, in the Circuit Court of Coahoma County. However, (Hn 2) it appears from the record here that Lucas filed suit against Frederick Smith Enterprise Company in the Federal Court for Delta Division of the Northern District of Mississippi on May 2, 1945, within the three year limitation, and that this suit was dismissed for lack of jurisdiction on November 13, 1946. Less than a month later this suit was filed.
Section 744, Code 1942, provides: "If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein; and his executor or administrator may, in case of his death, commence such new action, within the said one year."
In Hawkins v. Scottish Union Nat. Ins. Co., 110 Miss. 23, 69 So. 710, this Court held that a dismissal of a suit because of want of jurisdiction of the subject matter is a dismissal for matter of form within the purview of Section 744.
Hence this suit being filed within a month of the dismissal of the suit in the Federal Court it is within the one year saving provision of Section 744.
But appellant argues further that Frederick Smith Enterprise Company, a corporation qualified to do business in Mississippi effective as of June 29, 1942, and named E.C. Brewer as agent for service of process; that the declaration herein stated that Jim Turner was agent of the corporation on whom process could be served and thereby in effect instructed the clerk to issue process to be served on Jim Turner and not on E.C. Brewer, the agent named for the service of process. Appellant made a motion to quash the process on January 13, 1947, and the process was quashed, but by Section 1881, Code 1942, this operated to enter defendant's appearance at the succeeding term of court. The appellant argues from this that since the Federal suit was dismissed on November 13, 1946, and process was not served on one legally authorized to receive it because of Lucas' fault until appearance was entered by defendant on January 13, 1947, more than one year elapsed before the new suit was commenced and hence the suit is beyond the saving clause of Section 744, Code 1942.
Section 1463, Code 1942, says: "Except in cases in which it is otherwise provided, the manner of commencing an action in the circuit court, shall be by filing in the office of the clerk of such court a declaration, on which a summons for the defendant shall be immediately issued; and an action shall, for all purposes, be considered to have commenced and to be pending from the time of the filing of the declaration, if a summons shall be issued thereon for the defendant, and, if not executed, other like process, in succession, may be issued, in good faith, for the defendant."
In Bacon v. Gardner, 23 Miss. 60, it was held that the filing of the bill and not the issuance of the process, is so far the commencement of a suit in the Chancery Court, as to stop the running of the statute of limitations.
In Kelly v. Harrison, 69 Miss. 856, 12 So. 261, it was held that if a declaration is filed and a summons issued, the action will be deemed begun and pending, although the summons is, by clerical error, made returnable to a date long past and is in fact not served on the defendant and no alias summons is issued, and where a judgment is vacated because of no service of summons, it is proper for the court to treat the suit as still pending.
In Swalm v. Sauls, 141 Miss. 515, 106 So. 775, the bill was filed and summons was issued by the clerk on the same day, as shown by the docket, but was never delivered to the sheriff for service nor was it served on the defendant, but the court held this was a commencement of the suit and stopped the running of the statute of limitations.
In Wood v. Peerey, 179 Miss. 727, 176 So. 721, the filing of a declaration on November 14, 1936, with request to the clerk to issue summons at once, constituted the beginning of a suit and stopped the running of the statute of limitations though the clerk delayed the issuance of the summons four days, until November 18, 1936, and it was not served on defendant until December 3, 1936, after the bar would have otherwise been complete on November 15, 1936.
In Shackelford v. New York Underwriters Ins. Co., 189 Miss. 396, 198 So. 31, it was held that a suit in circuit court was begun when the declaration was filed and summons was issued by the clerk, though the summons was void because it was not issued under the seal of the court.
(Hn 3) The suit here having been filed and the clerk having promptly issued process for defendant, it was a pending suit and tolled the running of the statute of limitations though it was served on the plantation manager of the appellant and not on its designated agent for the receiving of service of process.
We think, therefore, the motion for the peremptory instruction was properly overruled, since there was an issue of fact for the jury to determine on the question of employment, the question of rate of pay, and the question of right to discharge.
The appellant assigns as error the giving of instructions numbers 5, 6 and 7.
Appellee, in his declaration, had sued for his salary, less his earnings during the remainder of the year, and five per cent of the net earnings of the plantation for 1943, which were alleged in the declaration to be in excess of $8,000.00, and on which his five per cent commissions were alleged to be $400.00, and he also sued for the value of any other benefits due under his contract of employment.
Appellant produced a statement taken from its books showing a net earnings for said year in the amount of $4,411.72, but in this statement there was contained a charge of $18,000.00 for rent on the plantation which was owned by appellant and a charge of $13,488.54 for administrative expense in which was included the sum of $3,000.00 for salary for the president and general manager of the corporation. The Court below by instruction number 5 told the jury that the $18,000 00 was not a proper reduction and by instruction number 6 that the $3,000.00 was not a proper reduction and could not be considered by the jury in arriving at the net earnings of the plantation for 1943.
The testimony is undisputed that the appellant corporation had set up this plan for the payment of $18,000.00 "rent" to the appellant owner as a method for providing a fund for the payment of taxes, annual repairs on the real and personal property, insurance and other items of expense, all of which were paid by the appellant owner by the application of said fund and that this fund was largely consumed by those expenditures which it is alleged were chargeable as costs in producing the crop on the plantation, and, if not paid as rent as aforesaid, would have to be paid as a direct item of expense in producing the crops and charged as such. It may be that some of the items included in this $18,000.00 were not properly chargeable as an item of expense in the making of the crop, but at least a goodly portion of them were apparently so chargeable.
The same may be said of the $3,000.00 paid as salary to the general manager, though a part of this may have been payment for services to other properties owned by the appellant. On this the record is not clear.
However this may be, (Hn 4) the burden of proof was on the appellee as plaintiff in the lower court to prove the damages resulting from the breach of his contract of employment and prove them to a reasonable certainty. The burden was on the plaintiff to show with reasonable certainty the gross value of the crop and the cost of its production and thereby fix the amount of the net profits of the plantation for the year 1943. Beach v. Johnson, 102 Miss. 419, 59 So. 800, Ann. Cas. 1914D, 33; Studdard v. Carter, 120 Miss. 246, 82 So. 70; Ammons v. Wilson Co., 176 Miss. 645, 170 So. 227. The decision of the Louisiana Court in Sharp v. McBride, 134 La. 249, 63 So. 892, cited by appellee, is not in accord with the rule in this State. The Court was in error in arbitrarily excluding the entire $18,000.00 and the $3,000.00 charges against the gross receipts of the plantation in arriving at the net profits for 1943, for it is clear the jury in rendering their verdict, after crediting the $100.00 advanced Lucas by Jim Turner and repaid by appellee, allowed as damages five per cent on at least a portion of these items.
(Hn 5) The giving of instructions 8 and 9 is also assigned as error by appellant. Under these instructions the appellee was, by the jury, awarded as rent on the plantation manager's residence which he was required to vacate, the sum of $45.00 per month for March, April and May, 1943. There is no proof in the record that the contract of employment provided for the furnishing of a residence by his employer. In addition Lucas testified he moved into the manager's residence on the plantation on February 10th and lived there until April 10th or 12th. Consequently he was living in the house all during March and approximately half of April. Surely he should not recover for the loss of the reasonable rental value of the house while he was residing in it Nor should he recover the reasonable rental value of the house at all in the absence of a contract obligating his employer to furnish a residence, and he did not establish such a contract by his proof.
For the reasons assigned the case is reversed and remanded.
Reversed and remanded.