Mondon v. Western Union Telegraph Co.

Lumpkin, Justice. The facts appear in the reporter’s statement. 1. We will first look at the case upon the assumption that all of the evidence introduced by the plaintiff was legally admitted; and from this standpoint, we think it clear that he was entitled to a verdict against the defendant. The plaintiff’s telegram, which the defendant negligently failed to duly transmit and deliver, was in reply to a letter which contained a distinct offer of employment; and we think, in view of the contents of that letter, that the plaintiff’s message amounted to an acceptance of the employment offered. These two documents together, in connection with the extrinsic facts, constituted a contract binding upon the railroad company in Alabama to give the plaintiff employment in case he could “stand the examination on time-card,” and binding the latter to accept such employment; and' the testimony of the plaintiff to the effect that he could have stood the requisite examination being uncontradicted, we think the contract was legally complete. The main evidence upon which the plaintiff relied for the purpose of showing that the defendant’s negligence deprived him of the benefits he would have received from this contract, was hearsay; but conceding, for the [504] moment, that it was otherwise and .was properly admitted, a case for a recovery was substantially made out. The verdict, however, for several hundred dollars was too large. The letter tendering employment to the plaintiff contained an offer to pay him $90.00 per month, but it specified no length of time during which the employment was to continue. The contract, therefore, after the expiration of a month, could have been terminated at the will of either of the contracting parties. How, then, could damages for a greater period than one month be measured with any degree of certainty or accuracy? If the engagement to employ the plaintiff’had been for any stipulated period greater than one month, he would have had a right to recover damages accordingly, and they could have been definitely measured and assessed; but as it was, he was liable to be dismissed from his employment as soon as the first mouth expired, and therefore it could not be known what damages he sustained because of his loss of employment for any greater period than one month. See Merrill v. W. U. Tel. Co., 78 Me. 97. It was doubtless in the contemplation of the parties that the period of the plaintiff’s ■employment would in fact extend beyond one month; but the point we stress is, that there was no contract under which he could, as a legal right, have demanded that he be retained in the service of the railroad company a single day after the month expired. In the case just cited, which was one somewhat similar to the case at bar, the contract was that the plaintiff’ should labor for a manufacturer at $2.25 per day, but for no stipulated period; and the Supreme Court of Maine held that he could recover nominal damages only. Referring to this case, Judge Thompson says: “But, with due respect to this court, it would seem that the plaintiff’ was ■entitled to recover at least what he would have obtained for one day’s work.” Thompson on Electricity, §326. [505] In this same section the author lays down the rule substantially as has been held by this court in Baldwin v. W. U. Tel. Co., 93 Get. 692. In that case there was an offer of employment at a specified compensation per month, and we held that, prima fade, such an offer of employment would cover the term of at least one month; but we quite agree with Judge Thompson that in such a case, beyond that period it is well to hold that everything was speculative or contingent. In Magarahan v. Wright & Lamkin, 83 Ga. 778, it was said, that where one is hired to serve another without any agreement as to the duration of service, there is no universal rule of law as to the length of time the hiring is to continue, but this question will be governed by the circumstances of each particular c'ase. The English rule seems to be that a general hiring, or a hiring by the terms of which no time is fixed, is a hiring for a year. "Wood’s Master & Servant (2d ed.), §136. But that rule certainly is not universally applicable to all contracts of hiring in this country. We think the doctrine of the Magarahan case, supra, is better suited to the conditions prevailing here. Certainly there was not, in the present case, any evidence whatever that it was the custom of railroad companies to employ conductors by the year’, nor was there any evidence from which it could be reasonably inferred that the railroad company would in any manner have been bound to have retained the plaintiff in its service for this length of time. We therefore think his recovery should have been upon the basis of a loss of one month’s wages only. 2. As already remarked, the main evidence upon which the plaintiff relied for the purpose of showing that he lost the situation tendered him because of delay in the delivery of Ms message, was hearsay. This evidence consisted of proof of declarations made by the supervisor of the railroad company in Alabama, after [506] the situation tendered to the plaintiff had been actually given to another person, to the effect that the plaintiff' would have been employed if his message had been duly received. As between the parties to the present controversy, this was hearsay only. Whether, in a controversy between the plaintiff and the railroad company arising upon this state of facts, this evidence would have been admissible as admissions of the company, is not now the question. If the declarations of the supervisor are admissions binding upon the company he represented, they would not be binding upon the telegraph company in any sense. The supervisor was a competent witness, and no reason was suggested why he was not called to testify to the facts sought to be established by his declarations to the plaintiff. 8. The court granted anew trial, which was right for at least two reasons: first, that the verdict was for an amount too large; and second, that the court erred in admitting illegal evidence. Judgment affirmed.