Sams Automatic Car Coupler Co. v. League

Mr. Justice Goddaed delivered the opinion of the court. The first question presented, as to the jurisdiction of the comity court, must be determined by an inspection of the [133] original complaint. We agree with, counsel for plaintiff in error that if, under the allegations of that complaint, the county court was without jurisdiction of the subject-matter, this defect could not be cured by amendment; as in that event, any order of the court except that of dismissal would be wholly void and ineffectual. But if, on the other hand, it appears from the face of the complaint itself that the amount sued for was within the jurisdiction of the county court, the amendment was permissible, although unnecessary, since the ad damnum clause, under our system of pleading, is entirely superfluous, and the amount of recovery is to be ascertained from the facts alleged in the body of the complaint. Prom ah inspection of the complaint itself, it will be seen that even if the aggregate of the amounts recoverable on both causes of action is the criterion by which the jurisdiction of the county court is determined, the amount involved does not exceed the sum of $2,000. Upon the facts alleged in the second cause of action, the ' measure of the plaintiff’s damages would be the amount of salary that he would have received under his contract of employment from November 21, 1894, to July 1, 1895, a period of seven months and twenty days. At the rate of $250 per month this would amount to $1,825. There is no allegation that entitles him to any special damages; and in no event could his recovery upon this count exceed this sum, which, together with the unpaid salary claimed in the first cause of action, would amount to $2,000. It follows, therefore, that the county court had jurisdiction to try the cause. The objection to the overruling of the demurrers for misjoinder of parties defendant and causes of action, is not available to the plaintiffs in error upon this review. By pleading over and going to trial upon the merits, they waived their right to question the correctness of this ruling. Nor was this result avoided by the attempt on the part of the individual defendants to raise the same question by answer. The objection, if it were one, appeared upon the face of the complaint, and could be taken advantage of only by demurrer. [134] Sec. 50, Code of Civil Procedure, 1887. And, furthermore, having been so presented, it was definitely determined in disposing of the demurrer. In Bliss on Code Pleading, sec. 417, the rule upon this subject is stated as follows: “ If the demurrant wishes to take advantage of any supposed error in overruling the demurrer, he must let final judgment be entered upon it; for if he shall answer after such ruling, he waives any objection to the pleading, except for the two radical defects, and the question cannot be afterwards raised, either by answer or by objecting to testimony.” Sec. 55, Code of Civil Procedure, 1887; Green v. Taney, 7 Colo. 278; Schoelkopf v. Leonard, 8 Colo. 159; Webb v. Smith, 6 Colo. 365; Fillmore v. Wells, 10 Colo. 228 ; Tenant v. Pfister, 45 Cal. 270; 6 Ency. of Pleading and Practice, page 363, and cases cited. We deem it unnecessary to notice in detail the numerous specifications of error based upon the admission and rejection of testimony. We have given careful attention to the various suggestions of counsel, and while there may be some ground for criticism as to the order of its introduction, we think that under the issues the admission of the evidence complained of could not have prejudiced defendant, and that the error, if any, is not sufficient to justify reversal. The first instruction consists of a statement of the case by the court orally. Upon this ground, and for the further reason that the court stated that in the second cause of action the plaintiff sued to recover the full amount of his salary, whereas it was for damages for an alleged wrongful and unlawful discharge; and further stated that the contract entered into between the plaintiff and defendant was guaranteed by the other defendants, instead of stating that the guarantee was for the payment of such salary “ as might become due and payable to him under said contract,” it is contended that this instruction constitutes reversible error. If this statement may be regarded as an instruction which, the statute requires to be in writing, suffice it to say that no exception to the giving of it orally appears of record. In preparing the record, [135] plaintiffs in error inserted, as one of the grounds of exception, that it was given orally. But this statement was stricken out by the court for the reason that no such exception was taken. On this record, it must be assumed that such an exception was not taken, and that the error was waived by consent or acquiescence. ■ As we have seen, the amount of damages was the salary plaintiff might have received under the contract, and the expression that the individual defendants guaranteed the “ contract ” instead of its performance by the company, amounts at most to a mere verbal inaccuracy, that could not have misled the jury. The third instruction is challenged because the court told the jury that the burden of proof was upon the defendants to satisfy them, by a preponderance of testimony, that the plaintiff was guilty of some one or more of the acts assigned in the answer as reasons for his discharge. It is said that the error consists in using the word “ satisfy,” and in limiting the proof to the acts assigned in the answer as reasons for the discharge. Counsel concede that the judge used “satisfy” as synonymous with “believe,” and we have no doubt that the jury understood it in that sense, and were not misled thereby. The court was clearly correct in limiting the proof to the reasons alleged in the answer as the justification for the plaintiff’s discharge. While it is true, as counsel have clearly demonstrated by an extended citation of authorities, that an employer, when he discharges his employee, is not bound to assign any cause for so doing, and further, that if he does state reasons or causes for the discharge, he is not estopped by, nor limited to, the causes so assigned, but may show in justification of the discharge the existence of any other sufficient cause, whether such cause was assigned at the time of the discharge or not, or was not known even to the employer at that time; yet it by no means follows that when sued for the wrongful discharge of an employee he sets forth in his an [136] swer certain specific canses in justification, of such, discharge, that he is not limited in his proof to the causes so alleged. We think this instruction, while subject to the verbal criticism mentioned, correctly announces the law, and is not in conflict with instruction No. 8, wherein counsel concede the law upon this subject is correctly stated. We have carefully considered the objections urged against the other instructions given, and find them equally untenable ; nor can we perceive wherein the court committed any error in refusing the instructions prayed for by defendants. We are of the opinion that the court correctly announced the law applicable to the facts of the case, and that no error is disclosed in the record that would justify a reversal. The judgment of the court below is accordingly affirmed. Affirmed.