Louis de Saulles & Co. v. Leake

Bleckley, Judge. This was a suit by a mercantile clerk against his employers for wages and for money loaned. The money item was admitted. The item for wages was resisted, on the ground that the clerk had withdrawn from the service for which he was hired before the expiration of the term, without just cause and without the consent of his employers. The service commenced in January, 1874, without any definite contract. Subsequently a contract was entered into for service during that year, at the rate of $1,000 00 per annum. Under that contract the plaintiff remained until the 13th of October, when he withdrew. He justified his withdrawal in two ways: First, he said that it was stipulated in the contract itself that either party might put an end to the engagement at will; and, second, he said that his employers had given him j ust cause to leave them by refusing to allow him reasonable [367] time for meals, or rather for breakfast. He claimed pay only for the time he served, and his suit was brought for a balance, after deducting certain admitted payments. Both parties testified in the case. It was a disputed point whether the plaintiff had a right to withdraw at pleasure by the terms of the contract; and it was also a disputed point whether the restriction he complained of in reference to his meals was unusual or unreasonable. It was likewise a question, supposing his withdrawal justified, how his wages for the time he served should be apportioned. Would he be entitled to what his services were worth, irrespective of the contract rate, or would the contract rate govern; and if the latter, would the apportionment depend simply on the number of months served out, or partly on the comparative importance of these months as falling in or out of the business season ? There was evidence tending to show that some months were dull and some more active, and that the fall months especially were business months. Other evidence tended to show that the spring months were nearly equal to those of the fall, and that the plaintiff’s services, even in the drill months of summer, were worth the average rate of the contract. 1. The court charged the jury that the proof showed that the plaintiff left about the commencement of the business season, while the defendants admit that he served during the spring months, when, according to the proof, the business was nearly as good as during the fall months. It is not in accordance with, the system of charging a jury known to our law, for the judge to express himself thus in reference to the evidence. What the proof shows, and what is according to the proof, must be determined by the jury entirely. The statute prohibits the judge from even intimating an opinion; and for this error we are required by the statute itself to order a new trial: Code, section 3248; Phillips vs. Williams, 39 Georgia Reports, 597. 2. It is not error for the judge to say to the jury that a fact is admitted: 16 Georgia Reports, 368. Of course, it would be otherwise if the fact were not admitted. But where [368] there is such a statement in the charge, and there is no contradiction of it by the judge himself in the bill of exceptions, it will be taken as true. In the charge we have just recited, the judge told the jury that the defendants admitted that the plaintiff served during the spring months. Unless it were otherwise alleged in the bill of exceptions, and certified by the judge, we must suppose that this related to some admission made by the defendants in open court. We do not, therefore, include this part of the charge in pronouncing the charge erroneous. The error lies in saying that the proof showed the defendant left about the commencement of the business season, and that, according to the proof, the business was nearly as good in the spring months as during the fall months. 3. The charge is further complained of, as respects the item for loaned money, because the jury were told that the evidence was conflicting, and that if they could not harmonize it, they should find in favor of that which was most clear. Perhaps the judge ought not to say to the jury that the evidence is conflicting; but whether so or not, is of no consequence in the present case — the money item was not disputed except as to the way the loan was made, and that was of no moment. It did not vary the rights of the parties in the least. The evidence to which the charge applied was quite irrelevant to any real issue in the case: 12 Georgia Reports, 213. We will add, that in granting a new trial at all in this case, we carry our obedience to the statutory mandate up to the highest notch. It is more than probable that the defendants were not the least injured by the manner in which the judge instructed the jury; but still, the charge was improper, and we think it best to abide by the words of the statute where there is a possibility that the impropriety may have had the slightest influence on any material point. Judgment reversed.