Evans v. St. Louis

• Citation: 24 Mo.App. 114
• Court: Missouri Court of Appeals
• Decision Date: 04 January 1887
• Parties: AUSTIN M. EVANS, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

24 Mo.App. 114

AUSTIN M. EVANS, Respondent,

v.ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 4, 1887.

APPEAL from the St. Louis Circuit Court, W. H. HORNER, Judge.

Reversed and judgment.

H. G. HERBEL, for the appellant: A hiring at so much a day, month, or year, no time being specified, is an indefinite hiring terminable at the will of either party. Finger v. Brewing Co., 13 Mo. App. 311; Boogher v. Maryland Ins. Co., 8 Mo. App. 533; De Briar v. Minturn, 1 Cal. 450; Wood on Master and Servant, 262-3. A servant's remedy for wrongful discharge before the expiration of his term, where he seeks a recovery for the full term, is an action for damages for breach of contract and not for wages earned, the doctrine of constructive service not being recognized in this country. Stone v. Vimont, 7 Mo. App. 277; Moody v. Leverich, 4 Daly, 401; Willoughby v. Thomas, 24 Grattan [Va.] 524; Wood on Master and Servant, 246; Ricks v. Yates, 5 Ind. 115; Wood v. Mayes, 1 W. & R. 166.

E. A. B. GARESCHÉ, for the respondent: Under the evidence in this case the hiring of the plaintiff was by the month, and not at will. Bleeker v. Johnson, 51 How. Pr. 380; Beach v. Mullen, 34 N. J. Law, 343.

ROMBAUER, J., delivered the opinion of the court.

This cause was heretofore before us and is reported in 16 Mo. App. 522, 527. The judgment obtained by the plaintiff on the former trial was reversed, owing to the misdirection of the jury by instructions given on behalf of the plaintiff. The cause was re-tried with the same result.

The defendant again appealing now assigns for error, that there was not on the last trial of the cause any substantial testimony on the part of the plaintiff, in support of his claim that he was hired for any definite period, and that the court erred in submitting the case to the jury on the basis of a claim for services performed during a stated period for a compensation agreed upon, when it appeared by the plaintiff's own evidence, that he had been paid for all the services he had actually performed, and could at best only recover damages caused to him by a wrongful discharge.

The main facts of the case are stated in our former opinion. On the trial, resulting in the judgment from which the present appeal is taken, the only evidence bearing on the terms of the hiring was given by the plaintiff himself, whose evidence on that subject was as follows:

That, having been in the defendant's employ for some time as an engineer, running an engine on mileage terms, and the defendant receiving some large engines, the plaintiff on or about the seventh or eighth of January applied for the position of engineer on one of these engines, and received on the tenth of January a letter from the defendant, stating “Mr. Evans, Engineer. Take engine one hundred and forty-three as regular.” That next day he met the master mechanic of the defendant, and asked him what the company was going to pay for these engines, and was told one hundred and fifteen dollars a month, twelve hours rest at each end of the road, and a regular crew, and for each man to stay with his own engine. That other men drew the same amount, as monthly men, as he did.

In answer to certain questions on cross-examination touching the nature and duration of the contract, which he claimed to have made, the plaintiff gave the following evidence:

Q. “Now I would like to know, Mr. Evans, how long this contract was to last? Did Mr. Harris say that it was to be for a day or for any length of time? A. He did not say whether it was for a day, or month, or year, or what time.”

Q. “He did not? A, No, sir; one hundred and fifteen dollars a month.”

Q. “Well, then, if there was a contract of that kind made on the tenth, it would only run up to the first of next month? A. When the contract was made he did not say from when it ran, from the first, may be, or from the tenth, or otherwise. I agreed to work my month out.”

Q. “There was never any distinct agreement between you and Mr. Harris as to the length of time you were to be employed, nor as to when your employment began, or when it was to end? A. No, sir.”

Q. By the court. “What is your recollection of that occurrence? A. All the contract as made by Mr. Harris was one hundred and fifteen dollars a month; did not say when it started or when it was to end.”

It was said in Beach v. Mullen (34 N. J. Law 345), that if the payment of monthly or weekly wages is the only...