Ansley v. Jordan

Bleckley, Justice. 1. As to the proper measure of damages, generally, in a case like the present, see 8 Ga., 190 ; 21 Ib., 157 ; 54 Ib., 266 ; 56 Ib., 497; Wood on Master & Servant, 247. If there are mitigating facts, such as that earnings were realized, or might have been, between the wrongful dismissal and the end of the term, this is matter of defense, and, under the system of practice in this state, should be pleaded. Unless pleaded, evidence on the subject may be rejected. Here the appropriate plea was wanting. 2. The action was for the value of the employee’s board, as well as for his money wages. It appeared in evidence that he accepted other employment immediately after he was dismissed by the defendant, and that he was boarded by his new employers as compensation for his services. There was no suggestion that the board thus obtained was inferior to that which the defendant was obligated to furnish. The new employers, it would seem, continued to supply board until the term expired for which the defendant had engaged to furnish it; and the labor which would have paid for it to the defendant did pay for it to the others. In respect to board, then, the employee, or his mother, sustained no damage by the wrongful discharge. From the amount of the verdict, the set-off pleaded being admitted, it is evident that the jury augmented their tinding by the value of the board. To this extent the recovery was excessive. 3. The amount of the money wages was liquidated by the contract, and would bear interest from the time payment ought to have been made. Code, §2056. Damages may, in a proper case, be increased by the addition of interest. Code, §2945. As to there being no express claim for, or mention of interest in the declaration, we think that imma [487] terial. The declaration states the contract, the terms of it, and the breach, and lays the damages at a much larger amount than the jury found, including interest. 4. If the court had been requested to specify in its charge to the jury, what particular acts and omissions would justify discharging an employee, it would most probably have done so, in so far as was practicable without trenching upon the province of the jury. But no request of the sort was made, and the court was excusable for not entering 'into such details unasked. 58 Ga., 157. A liberal trust in the capacity of the jury to cope with such matters without over-minute instructions, should be encouraged rather than discouraged. There is more danger of overcharging than of undercharging, where so plain a transaction as turning off a hired man before his time is out, is under investigation. 5. One or more “holdings” of the court are complained of in the motion for a new trial, as that the court erred in holding that the defendant had not the right of appeal, and that it was not competent for the defendant to show that the discharged employee procured employment at once elsewhere,etc. At what stage of the proceedings, or under what circumstances, these holdings took plaqe is not explained. It is not stated that the defendant offered evidence, and that some of the obnoxious holdings were made in excluding it. Besides, as we have seen, the pleadings were not such as to entitle the defendant to get in more evidence than was admitted. In point of fact, it came before the jury in the testimony that the employee did find employment from others, and that he was boarded by way of compensation. 6. The motion for a non-suit was predicated upon the alledged failure of the evidence to connect the plaintiff with the contract. The employee was the minor son of the plaintiff, and he testified that he- made for his mother the contract, and then set out its terms. “ For his mother,” may be understood to mean as her agent, or on her behalf, or as her representative. Apart from the question of legal right in her to his services during his minority, on which [488] nothing need be laid down, it was certainly competent for him to consent to be hired out by her, and to represent her in making the contract. If she had not previously authorized him to make the contract for her, or in her stead, she could, and, as may be inferred from her position in this suit, did ratify his act. A non-suit was properly refused. 7. A suit commenced by an infant is not void. Code, §3263. The substitution of the mother by amendment, unless she had come into the suit to prosecute the infant’s right rather than her own right, was out of order; but it seems not to have been objected to in proper time, and now it is too late. 47 Ga., 596. 8. It seems superfluous to say that the question of the right to appeal does not arise upon a motion for a new trial. The evidence was conflicting, and the jury took it most strongly in favor of the plaintiff below. So taken, it would warrant the verdict except as to the part of it dependent upon the item of board. No new trial is necessary to eliminate this excess, as the evidence in the record is distinct touching amounts, dates, etc. Let the judgment be reversed as to all of the recovery except $107.50, with interest thereon from October 1st, 1876. As to this amount, when the excess is remitted, let it stand. Judgment affirmed.