Batesville-Southwestern R. v. Vick

Anderson, J., delivered the opinion of the court. Appellee, P. T. Vick, sued appellant, Batesville-Southwestern Railroad Company, in the circuit court of Panola county, and recovered a judgment for sixty-two dollars and fifty cents and costs, from which judgment appellant prosecutes this appeal. Appellee was employed by appellant as a conductor in charge of its train running from Batesville to Crowder. Appellee’s evidence tended to show that appellant violated said contract of employment by discharging him in the middle of the month. Appellee contended, and his [484] evidence tended to show, that he was employed by the month. The court refused an instruction asked by appellant to the effect that if appellee by the exercise of reasonable diligence could have earned as much during the remainder of the month in which he was discharged as appellant was'paying him then, he was not entitled to recover anything; and also refused another instruction requested by appellant to the effect that unless appellee used due diligence to obtain employment for the remainder of the month in which he was discharged, he- was not entitled to recover. And the court gave an instruction for appellant which said to the jury, in substance, that if they believed from the evidence appellee was employed by appellant by the month and was discharged in the middle of the month, they should return a verdict for appellee for half month’s .salary at one hundred twenty-five dollars per month. If a servant employed for a specified time is wrongfully discharged before the expiration of his term, he is entitled to such damages, not to exceed his full wages for the whole time provided for by the contract, as he may sustain on account of being so discharged. But in ■such case the servant is required to make reasonable exertion to prevent loss by obtaining other employment, and his recovery is limited to the actual damages he sustained, which is the amount he would have received if he had been permitted to complete the contract less what he has earned in the meantime or what he might have earned by due diligence in seeking employment. If a servant either willfully or negligently remains out of employment after he is discharged, and thereby enhances his damages, the increased loss must fall upon him. “If of his own choice he eats the bread of idleness, he cannot compel his employer to pay for it.” Birdsong v. Ellis, 62 Miss. 418. [485] Only tbe one instruction was given for appellee. Under the evidence, that amounted to practically a peremptory instruction for appellee. The requested instructions for appellant refused by the court should have been given. Reversed and remanded.