Bernstein v. Lipper Manufacturing Co.
| Decision Date | 11 January 1932 |
| Docket Number | 297 |
| Citation | 160 A. 770,307 Pa. 36 |
| Parties | Bernstein v. Lipper Manufacturing Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued November 30, 1931
Appeal, No. 297, Jan. T., 1931, by defendant, from judgment of C.P. No. 4, Phila. Co., June T., 1926, No. 1522, on verdict for plaintiff, in case of Eugene Bernstein v. Lipper Manufacturing Company. Affirmed.
Assumpsit for breach of contract of employment. Before BROWN, J.
The opinion of the Supreme Court states the facts.
Judgment on verdict for plaintiff for $3,398.97. Defendant appealed.
Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.
Judgment of the court below is affirmed.
A. L Levi, of Levi & Mandel, for appellant. -- A servant owes a duty of loyalty to his master, and a servant's right to wages or salary terminates as soon as the servant fails in the duty to his master: Singer v. M'Cormick, 4 W. & S. 265; Hibbard v. Wood, 49 Pa.Super. 513; Waugh v. Shunk, 20 Pa. 130; Ulrich v. Hower, 156 Pa. 410; O'Neil v. Schneller, 63 Pa.Super. 196, 199.
The following Pennsylvania cases are submitted for the proposition that whether it is proper for an employer to discharge an employee under undisputed or admitted facts, it is a question of law for the court and not a question of fact for a jury: Peniston v. Huber Co., 196 Pa. 580; O'Neil v. Schneller, 63 Pa.Super. 196; Carson v. Hosiery Co., 15 Pa.Super. 476; Gallagher v. Steam Co., 188 Pa. 95; Lovett v. Goodman, 88 Pa.Super. 258; Elliott v. Wanamaker, 155 Pa. 67; Batchelder v. Elevator Co., 227 Pa. 201; Hyatt v. Johnston, 91 Pa. 196.
There was a question of fact for the jury, which defendant most vigorously contends it is not, a finding by the jury for plaintiff in the light of these admissions by plaintiff and the uncontradicted testimony of defendant's witnesses, is so capricious that defendant is entitled to a new trial and it was error to refuse it: Maloy v. Rosenbaum Co., 260 Pa. 467; Clemson v. Davidson, 5 Binney 399; Douds v. Traction Co., 51 Pa.Super. 24; Haltz v. Printzel, 267 Pa. 156; Petrowski v. Ry., 263 Pa. 531.
Where a contract is made in Pennsylvania, to be performed principally in New York, the law of the State of New York governs its validity, particularly as to whether it should be in writing: Zenatello v. Hammerstein, 231 Pa. 56.
Cecil P. Harvey, of Horenstein, Feldman & Harvey, for appellee. -- The contract of employment entered into between the parties in Pennsylvania is enforcible in the courts of this jurisdiction: Hughes v. R.R., 202 Pa. 222; Producers Coke Co. v. Hoover, 268 Pa. 104; Scudder v. Bank, 91 U.S. 406; Allshouse v. Ramsay, 6 Wharton 331.
The alleged breach of contract was a question of fact to be decided by the jury: Pope v. Reading Co., 304 Pa. 326; Hecht v. Transit Co., 100 Pa.Super. 298; Sulkin v. Gilbert, 218 Pa. 255.
Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.
There is an implied obligation in contracts of employment that, as part of the consideration, the employee will be loyal, diligent, faithful, and obedient. His right to compensation depends upon the observance or performance of these duties. If he fails in due fidelity, he forfeits his right to his employment (Hibbard v. Wood, 49 Pa.Super. 513, 515); if he fails in diligence by shirking his work or otherwise conducting himself inconsistently with the proper discharge of his duties, he may be dismissed: Waugh v. Shunk, 20 Pa. 130, 133; Singer v. M'Cormack, 4 Watts & Sergeant 265, 266. Where his conduct with his fellow employees or towards others with whom he is brought in contact has a tendency to interfere with his master's business or with plant or business discipline, the master is warranted in discharging the employee: O'Neil v. Schneller, 63 Pa.Super. 196, 199.
The above rules apply to all contracts of employment, whether for a given time or indeterminate. If, however, the dismissal be without cause, where the servant has a contract for a definite period of time, he may be entitled to receive compensation not only for services rendered, but also for the wages he would have earned if the contract had continued in force: Singer v. M'Cormick, supra; Waugh v. Shunk, supra; Hibbard v. Wood, supra. What constitutes a sufficient cause for the discharge of a servant is a question of law, and where the facts are undisputed or admitted it is for the court, but where the evidence to sustain the justification for discharge is disputed, the jury must pass on it: O'Neil v. Schneller, supra.
Plaintiff was engaged in Philadelphia under an oral contract for one year as a salesman in New York, and, to some extent, in the south and middle west. He was dismissed, and, as justification, it is asserted that he failed to devote himself exclusively to his employer's business during the hours of employment. Defendant charges that the plaintiff was interested in a rayon company in which his father had an interest, and that he tried to and did sell stock of this company during normal business hours. Plaintiff admits his father was interested in such company; but explains that rayon was then a new and interesting subject of conversation to defendant's customers in the millinery trade, and that often, in discussing defendant's business, "rayon" would naturally come up. He claims he spoke of it to his friends and acquaintances as he might discuss any ordinary topic of the day. While naturally interested in his father's welfare, he denies working for the rayon company or for his father, and that either he or his father were interested in the sale of stock, as another concern sold it. A careful review of the evidence convinces us that there was a real dispute as to the times, places, manner and purpose of plaintiff's acts. Many of them were merely incidental occurrences that might arise with a salesman in the performance of the duties of his master; at least the evidence is not so clear that we could say as a matter of law he was guilty of such dereliction of duty as entitled him to dismissal. The court below submitted the question to the jury in a clear and explicit charge, and instructed them that if they believed plaintiff was not devoting his entire time exclusively to the interests of his employer, they should find for the defendant. The jury evidently believed plaintiff, and as this was the second trial with the same result, there ought to be no doubt their conclusion was correct.
The acts of an employee which will justify dismissal need not be such as injure the employer; the latter need not show that the employee's conduct caused him to suffer loss. A master is not compelled to keep an employee for a given term in service until his business has suffered pecuniary loss; if the employee is unfaithful, disobedient, disloyal, or does not properly perform his duties, he may be discharged.
Where an employee engages for a period of time to give exclusive services to his master, he cannot use such employment as a subterfuge to exploit other business; but whether he does so depends on the nature and character of his acts in connection with his employment, and also on the character of the master's business.
In the present case, the man was engaged as a salesman. To successfully pursue this...
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