Durr v. Clear Lake Park Co.

• Decision Date: 14 February 1928
• Docket Number: 38442
• Citation: 218 N.W. 54,205 Iowa 279
• Parties: O. S. DURR, Appellee, v. CLEAR LAKE PARK COMPANY, Appellant
• Court: Iowa Supreme Court

218 N.W. 54

205 Iowa 279

O. S. DURR, Appellee, v. CLEAR LAKE PARK COMPANY, Appellant

No. 38442

Supreme Court of Iowa, Des Moines

February 14, 1928

Appeal from Cerro Gordo District Court.--M. F. EDWARDS, Judge.

Action to recover damages, predicated on the alleged wrongful discharge of plaintiff as manager of the defendant company. Defendant answered by a general denial, and alleged that plaintiff did not devote his time and best efforts to the interests of the defendant, and did not act with fidelity toward the defendant, and that plaintiff breached his contract prior to the time that any alleged cause of action arose. The cause was submitted to a jury, and a verdict was returned in favor of the plaintiff in the sum of $ 2,000. The defendant appeals.

Reversed.

Senneff Bliss, Witwer & Senneff, for appellant.

Blythe Markley, Rule & Clough, for appellee.

EVANS J. STEVENS, C. J., and FAVILLE, ALBERT, MORLING, and WAGNER, JJ., concur.

OPINION

EVANS, J.

The court construed the pleadings to put upon the defendant the burden of proving cause for the discharge of the plaintiff. The defendant introduced evidence tending to show that the plaintiff was guilty of keeping intoxicating liquors upon the defendant's premises, and to some extent of dispensing the same to others; and that the plaintiff himself used such intoxicating liquors, and as a result was frequently intoxicated, and unfit to transact business. Evidence was introduced, also, which tended to show other breaches of the contract, which we shall have no occasion to consider. Instructions 6 and 7 given by the court to the jury were as follows:

"6. You are instructed that, in cases of this kind,--that of master and servant,--the servant owes to his employer fidelity and such conduct as is reasonably calculated to promote the best interests of the company he represents, and to so act as to promote the confidence of the employer. And if the use of intoxicating liquor by the plaintiff at the time in question unfitted the plaintiff to the extent that, in performing his duties as general manager, his conduct and doings were such as reasonably to have led to loss or injury to the business of the defendant corporation, it was the right of the defendant corporation to discharge the plaintiff. Also, if it is established by the evidence that, at the time in question, the plaintiff did acts that were hostile or adverse to the interests of the defendant corporation, or if the plaintiff used the funds of said corporation wrongfully, or without right, and thus exposed the interests of the defendant corporation to danger of loss, even though none is in fact sustained, this would be a violation of an implied condition of the contract on his part, and, in such case, the plaintiff could rightfully be discharged by the defendant, and could not recover herein.

"7. You are instructed, however, as to the performance of a contract, that any breach of contract on the part of the employee may be waived by his employer, and that, if so waived by the employer, it cannot then be asserted against the employee, to prevent a recovery on his part under such contract, or to justify a breach of such contract on the part of the employer, if any. So that, if you find from the evidence that, at or near the close of the season of 1923 charges were made and preferred against the plaintiff, and that such charges were taken up by and before the board of directors of the defendant corporation, and that the same were then discussed and passed upon by the said board of directors, and the said board of directors voted, and decided that said charges should not be sustained, and that the plaintiff thereafter continued as general manager of the defendant company, under rules then adopted for the future conduct of the plaintiff as such manager in the employ of the defendant corporation, then, in that event, such action on the part of the board of directors of the defendant company should be considered by you in determining whether or not such action on their part constituted or was intended by them to...