Opinion
No. 27204.
June 11, 1928.
1. MASTER AND SERVANT. Person under contract to make crop for another is "laborer" within law forbidding interference with employment ( Hemingway's Code 1927, section 917).
Person under a contract to make a crop for another is "laborer" within the meaning of Laws 1924, chapter 160 (Hemingway's Code 1927, section 917), imposing a penalty for wilfully interfering with, enticing away, or knowingly employing laborer or renter who had contracted with another person, whether or not compensation therefor is to be money or part of crop.
2. MASTER AND SERVANT. In determining status of person under contract to make crop under law forbidding interference with employment, date of expiration of contract is implied as that necessary to making crop ( Hemingway's Code 1927, section 917).
In determining whether person under a contract to make a crop was laborer within meaning of Laws 1924, chapter 160 (Hemingway's Code 1927, section 917), forbidding interference with employment, date of expiration of contract is necessarily implied as that necessary to make crop, including harvesting thereof, notwithstanding contract did not fix exact date it would expire by limitation.
3. MASTER AND SERVANT. Understanding that former employer had released employee held insufficient within law requiring employer's consent in writing before another can employ ( Hemingway's Code 1927, sec. 917).
Employer's understanding that former employer had released employee from obligation of her contract to make a crop held not sufficient within Hemingway's Code 1927, sec. 917, requiring employer's consent in writing before another can knowingly employ his employee.
4. MASTER AND SERVANT. Negro woman negotiating with another before harvesting crops had not left employment within law forbidding interference therewith ( Hemingway's Code 1927, section 917).
Where negro woman, who had contracted to make a crop, before harvesting thereof negotiated with another for employment and thereafter sent a message to prospective employer stating present employer had consented to her leaving and that she wished him to pay her account and give her employment, she had not left original employment within meaning of Laws 1924, chapter 160 (Hemingway's Code, 1927, section 917), imposing penalty for interfering with, enticing away, or knowingly employing laborer or renter.
APPEAL from circuit court of Bolivar county, Second district; HON.W.A. ALCORN, JR., Judge.
Somerville Somerville, Howorth Howorth and Fulton Bell, for appellant.
The contention of our adversaries is that this case is controlled by Thompson v. Box, 147 Miss. 1, 112 So. 597. The very obvious difference in the two cases is that in the Thompson-Box case the laborers (tenants) refused to pay the accounts they owed their former landlords. In this case Nancy agreed that she owed Mr. Armstrong the sixty-seven dollars and appellee agreed that it was due and agreed to pay it, and evidenced this agreement in writing (the check).
The vice of the situation is well pointed out by Judge SMITH in the dissenting opinion in Thompson v. Box. In that case the evidence showed that the tenants had broken their contract, filed a suit in replevin for their things, and the circuit judge and the majority of the court were satisfied that the contract had been breached. Judge SMITH was not so satisfied. He so stated in the dissenting opinion. But the present case lacks a great deal of measuring up to the Box case. In this case the woman had not broken her contract. She had not moved off the place. Her family and all of her belongings were there. She had been there for several years and had just drawn her April "furnish" which was advanced to her to live on for the first two weeks of April while she worked her crop. To take that money and not do the work was of course obtaining money under false pretenses. She had not moved off the place. She does not testify in the case at all. The only evidence we have at all is the hearsay evidence of Mr. Bishop who undertakes to testify as to what Nancy told him. This is all so different from the case of Thompson v. Box, that we cannot think this case should be controlled by said decision.
Roberts Hallam, for appellee.
The sum and substance of the plaintiff's evidence, insofar as it in any way related to the appellee or her husband, is that a truck driver brought a check for sixty-seven dollars signed D.B. Bishop, payable to plaintiff, reciting that it was for the account of Nancy Davis; that the truck driver drove right up to his, Armstrong's side yard, got off the truck and knocked on Mr. Armstrong's door, and when the cook opened the door he asked for Mr. Armstrong, and then handed the check to the cook and told her to give it to Mr. Armstrong; that the plaintiff took the check, went to the house of Nancy and found it empty and then endorsed his name on the check, and then on reflection took the check to his attorney for the purpose of suing Mrs. Bishop for damages. This evidence fails utterly to show that Mrs Bishop, either personally or through her agent, wilfully interfered with, or enticed away or employed Nancy Davis having knowledge that Nancy Davis had a contract with Mr. Armstrong for a specified time. It shows conclusively that the statute was not violated in any respect, and brings the case squarely under the decision of this court in Thompson v. Box, 147 Miss. 1, 112 So. 597.
We submit that under the authority of Jackson v. State (Miss.), 16 So. 299; Beale v. Yazoo Yarn Mills, 125 Miss. 807, 88 So. 415; Shilling v. State, 143 Miss. 709, 109 So. 737; and Thompson v. Box, 147 Miss. 1, 112 So. 597, it was error for the court below to overrule the motion of the defendant to exclude the evidence offered by the plaintiff and direct the jury to return a verdict for the defendant, and in refusing the peremptory instruction asked by the defendant.
The appellant recovered a judgment against the appellee for damages alleged to have been sustained by him because of the employment by the appellee, without his consent, of a laborer who was under contract with him for a specified time.
On motion of the appellee this judgment was set aside by the court below, and a judgment in favor of the appellee was rendered, dismissing the suit, on the theory that the court erred in not granting the appellee's request for a directed verdict.
Chapter 160, Laws of 1924 (Hemingway's 1927 Code, section 917), provides that:
"If any person shall willfully interfere with, entice away, or who shall knowingly employ, or who shall in any manner induce a laborer or renter who has contracted with another person for a specified time to leave his employer or the leased premises, before the expiration of his contract without the consent of the employer or landlord in writing signed by said landlord or employer under or with whom said laborer had first contracted, he shall . . . be liable to the employer or landlord for all advances made by him to said renter or laborer by virtue of his contract with said renter or laborer, and for all damages which he may have sustained by reason thereof."
According to the evidence for the appellant, Nancy Davis contracted with him in the early part of the year 1926 to make a crop on land owned by him, she to receive one-half of the crop as compensation for her labor in making it. She entered upon the performance of this contract and planted the crop. About the 1st of April she advised the appellant that she intended to go to the town of Durant for a few days, and would like to know what the amount of her indebtedness to him then was. The appellant gave her a signed statement, showing that the amount then due him by her was sixty-seven dollars. About two days thereafter the driver of a truck left with the cook at the appellant's residence a check signed by the appellee for the amount due the appellant by Nancy Davis. The truck driver, without the appellant's knowledge, moved Nancy, her family, and household effects from the land she was cultivating to land owned by the appellee, by whom she was then employed.
The appellee did not herself employ Nancy, but Nancy was employed for her by her husband and agent, J.W. Bishop, who testified as follows:
"She (meaning Nancy Davis) came to me, on the 31st day of March I think it was, said she was hunting a home, and asked me if I had a place for her, and I told her that I thought I did. I then asked her where she lived. She told me she lived with Mr. Reuben Armstrong, and that she was going to move from Mr. Armstrong; that she wanted a home; and I asked her then what she owed Mr. Armstrong, and she told me she didn't know. Then I asked her what was her trouble, and she said she was dissatisfied, and I advised her, then, to go back and see Mr. Armstrong, and see what she owed, and if it was all right with Mr. Armstrong I would pay her account, and move her. . . . I advised her, though, to go back and make the crop with Mr. Armstrong, and not to move, if she could make it all right with him, and she told me she was not going to make the crop with Mr. Armstrong, that she was going to move, and I asked her, then, if she had told Mr. Armstrong that she was going to move, and she said she had not; but she went away. I never expected to see her any more. I had never seen her before, and the next day she sent her boy with a written statement of the account, and said Mr. Armstrong said it was all right."
Bishop then sent Armstrong a check for the amount due him by Nancy, and instructed the bearer to move Nancy and her household effects to land owned by the appellee, which was done, and Nancy was thereafter employed by him to make a crop for Mrs. Bishop. Other testimony of Bishop's makes it clear that he knew that Nancy was under a contract with the appellant to make a crop for him.
On cross-examination Bishop was asked, "A written statement of her account you took to mean consent for them to move?" To which he replied, "That was the general rule; we farmers do."
Armstrong was thereafter called as a witness in his own behalf, and was asked, "What if any custom existed as to giving authority for a negro to remove from a plantation?" but, on objection by the appellant, was not permitted to answer. The court then sustained a motion by the appellant to exclude Bishop's evidence as to the existence of such a custom.
As we understand the appellee's contentions, they are that when J.W. Bishop, her agent, employed Nancy Davis (1) he did not know that she had contracted with Armstrong for a specified time; (2) he understood that Armstrong had released Nancy from the obligation of her contract; (3) Nancy had already broken her contract with, and left the employment of Armstrong.
As hereinbefore set forth, Bishop knew when he employed Nancy that she was under a contract with Armstrong to make a crop for him; and one under a contract to make a crop for another is a laborer within the meaning of the statute, whether his compensation therefor is to be money or a part of the crop, Ward v. State, 70 Miss. 245. It is true that Nancy's contract with Armstrong did not fix the exact date when it would expire by limitation, but the time therefor is necessarily implied, being that which was necessary to make the crop, which includes the harvesting thereof. Compare Goolsby v. State, 98 Miss. 702, 54 So. 155.
Under the statute, the consent which an employer must give before another can knowingly employ his employee must be in writing, and the consent which Nancy advised Bishop that Armstrong had given to her leaving his employment was not so manifested.
When Nancy approached Bishop, she told him she intended to leave Armstrong, and was evidently seeking some one who would pay her account with Armstrong and give her employment, and her later message to Bishop could have meant only that Armstrong had consented to her leaving him; that she intended to do so, and wished Bishop to pay her account with Armstrong and give her employment. She had not, therefore, left Armstrong's employment when Bishop moved her from Armstrong's land to that of the appellee.
Beale v. Yazoo Yarn Mill, 125 Miss. 807, 88 So. 411, and Thompson v. Box, 147 Miss. 1, 112 So. 597, relied on in this connection by the appellee, are not in point. In the Beale case the appellant, in employing the laborer, acted on information to the effect that the laborer's first employer had broken his contract with the laborer, and thereby released the laborer from further obligation to him. The Thompson case was decided on the theory that the laborers had broken their contract with, and left, their first employer before they were again employed.
The appellee has filed a cross-assignment of errors, and requested that, in event the judgment dismissing the appellant's suit be reversed, the original judgment entered on the jury's verdict be also reversed. The cross-assignment of errors are all to the effect that the evidence discloses no liability of the appellee to the appellant, and therefore what we have hereinbefore said applies thereto.
The judgment of the court below will be reversed, and the original judgment entered on the verdict of the jury will be reinstated.
Reversed, and judgment here for the appellant.
Reversed.