Carter White Lead Co. v. Kinlin

• Decision Date: 04 March 1896
• Docket Number: 6287
• Citation: 66 N.W. 536,47 Neb. 409
• Parties: CARTER WHITE LEAD COMPANY v. PETER KINLIN
• Court: Nebraska Supreme Court

66 N.W. 536

47 Neb. 409

CARTER WHITE LEAD COMPANY v. PETER KINLIN

No. 6287

Supreme Court of Nebraska

March 4, 1896

ERROR from the district court of Douglas county. Tried below before DAVIS, J.

AFFIRMED.

E. J Cornish and W. T. Nelson, for plaintiff in error:

In instructing the jury the court erred in omitting essential elements of the case. (Hale v. Sheehan, 36 Neb. 439; City of Plattsmouth v. Boeck, 32 Neb. 297; City of York v. Spellman, 19 Neb. 385; Nelson v Johansen, 18 Neb. 183; Gilbert v. Merriam & Roberson Saddlery Co., 26 Neb. 194; Bowie v. Spaids, 26 Neb. 635; Runge v. Brown, 23 Neb. 817.)

The contract is void for want of mutuality. (Stiles v McClellan, 6 Colo., 89; Townsend v. Fisher, 2 Hilton [N.Y.] 47; Ewins v. Gordon, 49 N.H. 444; Boyce v. Berger, 11 Neb. 399; Pennsylvania Co. v. Dolan, 32 N.E. 802 [Ind.].)

Smith & Sheean, contra:

If any instruction is vague or indefinite, plaintiff in error waived the right to object thereto by failing to request a more specific charge. (Klosterman v. Olcott, 25 Neb. 383; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578; Burlington & M. R. R. Co. v. Schluntz, 14 Neb. 425; Dunbar v. Briggs, 13 Neb. 332.)

The contract relied on is a legal one and binding on both parties. (Hobbs v. Brush Electric Light Co., 75 Mich. 550; Pennsylvania Co. v. Dolan, 6 Ind.App. 109.)

OPINION

The facts are stated by the commissioner.

IRVINE, C. J.

The assignments of error relied on by the plaintiff in error relate to the giving of instructions and to the sufficiency of the evidence. It is not contended that any of the instructions misstated the law, but the complaint is that they omitted certain features of the case upon which the jury should have been instructed, both in stating the issues and the law applicable thereto. For the most part these assignments clearly fall within the rule that a failure to fully instruct the jury upon the issues and law of the case is not open to review, unless the party complaining requested instructions on the omitted topics. (Barr v. City of Omaha, 42 Neb. 341, 60 N.W. 591; Carleton v State, 43 Neb. 373, 61 N.W. 699; Post v. Garrow, 18 Neb. 682, 26 N.W. 580.) It is, however, claimed that by two instructions the court endeavored to cover all the facts essential to a recovery; and that omissions of essential facts in these instructions rendered them erroneous, without such request. We do not think that the instructions referred to severally or jointly were of the character which renders that rule applicable. The action was by Kinlin against the Carter White Lead Company, which we shall hereafter term the "company," the petition alleging that on the 23d of November, 1891, a contract had been made between the parties whereby the company agreed to employ plaintiff, and pay him $ 2.50 per day while working in the smelting department, and $ 2 per day while elsewhere employed, and to so give him employment as long as the works were kept running, or until the plaintiff saw fit to quit, in consideration whereof Kinlin agreed to so work for the company, and to release a claim for damages against the company, which was then in litigation between them. Kinlin, in the first count of his petition, alleged that he had been wrongfully discharged, in violation of such contract, and prayed damages therefor. In another count he alleged that the company had not paid him as much as it had agreed during the time he was employed, and judgment was sought for the deficiency. The answer, among other things, denied the material allegations of the petition, alleging that Kinlin's employment had been a hiring at will at the wages paid other men for similar work. The instructions particularly complained of were as follows:

"5. Before the plaintiff can recover he must prove by a preponderance or greater weight of the testimony that the contract alleged was made, that he and the defendant by its president, Carter, did agree that defendant would give plaintiff employment as long as defendant's works were kept running, at the rate of $ 2.50 per day for work in the smelting department and $ 2 per day while otherwise employed."

"9. If you believe from a preponderance of the evidence that the contract alleged by plaintiff was made, and that defendant was discharged without adequate and reasonable cause, then he would be entitled to recover for the time he was unable to procure work as shown by the evidence. If he could procure work it would be his duty to accept work, and for the time he was able to get work, with reasonable diligence, he could not recover. For such time as he could not, with reasonable diligence, get work, and was obliged to be idle, he would be entitled to recover at the agreed rate. The amount of plaintiff's claim under this cause of action is $ 180."

As we said, the complaint is that these instructions were not complete. The fifth instruction related solely to the promise on which Kinlin founded his claim, impressing upon the jury that, in order to recover, Kinlin must establish the contract as alleged. The object of the ninth instruction was to state the measure of damages, and especially the law of avoidable consequences. Standing alone, we do not see that either or both could be taken as summarizing all the particular elements essential to a recovery; and taken in connection with the other instructions, each one of which related to a particular issue, it is quite clear that the jury could not have understood them in that sense; so that the first rule stated is applicable to these instructions as well as to the others.

The assignment that the verdict is not sustained by the evidence suggests questions both of law and of fact. So far as the question of fact is concerned, the case is one of those in which counsel very reasonably believe that they have suffered an adverse verdict while the evidence preponderated in their favor, and therefore seek in this court a modification of the rule generally observed in ascertaining the sufficiency of the evidence, in order to correct a verdict which they feel to be wrong. The wisdom of the rule here established by which this court declines to weigh conflicting evidence in cases within its appellate jurisdiction is daily justified by experience. On the written transcript, it seems to the writer that the verdict was against the weight of the evidence; but the opportunities of the jury on the trial and the district judge on the motion for a new trial, for correctly estimating the effect of the...