Fay v. Missouri Power & Light Co.
| Decision Date | 01 December 1930 |
| Docket Number | 17026 |
| Citation | 33 S.W.2d 1056 |
| Parties | FAY v. MISSOURI POWER & LIGHT CO. et al. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Cole County; Henry J. Westhues, Judge.
“ Not to be officially published.”
Action by Richard D. Fay against Missouri Power & Light Company and another. Judgment for plaintiff, and defendants appeal.
Reversed and remanded.
Irwin & Bushman, of Jefferson City, for appellants.
H. P Lauf and Ira H. Lohman, both of Jefferson City, for respondent.
This is an action for wrongful discharge. There was a verdict and judgment in favor of plaintiff in the sum of $415.50. Defendants have appealed.
The facts show that defendants, McClelland and Junkersfeld, Incorporated, prior to the occurrence out of which this suit arose, entered into a contract with the defendant, Missouri Power & Light Company, under a cost plus arrangement for the installation of certain electrical work at the latter’s power house in Jefferson City.
Plaintiff’s witness, Kohlmeier, testified that he lived in Zanesville, Ohio, that on August, 1927, he wrote the defendant McClelland and Junkersfeld at its New York office inquiring whether he might have employment with it on some work it had at Hutchinson, Kansas; that on September 1st of that year McClelland and Junkersfeld replied by letter stating that it had a "job" at Jefferson City and suggested that he communicate with Mr. White at that place in reference to securing employment; that on December 4th or 5th, 1927, he wired White at Jefferson City inquiring about work and in reply he received from White the following telegram:
Kohlmeier further testified that when he received White’s telegram he showed it to plaintiff because plaintiff had previously spoken to him about employment; that after the receipt of White’s telegram the witness and plaintiff talked to White over the long distance telephone in reference to the work; that the witness talked first, asking White how long the work would last; that White replied, "two months or more"; that he asked White about "the rate per hour"; that after some talk in reference to the compensation it was agreed that Fay and the witness would come to Jefferson City and work for $1.12 ½ per hour.
Plaintiff testified that he talked on the telephone and that White said:
"He needed three or four powerhouse men for two months or longer and the pay would be between a dollar and a dollar and a quarter an hour; we had some conversation about the pay and I agreed to come here for two months work at $1.12 ½ per hour."
On cross-examination he said White stated that the "job" would last for two months or longer, with considerable overtime.
Plaintiff further testified that he went to Jefferson City and worked for twenty-one days beginning on the 10th day of December, 1927 and ending on the 4th day of January, 1928; that he "worked every hour we were called on to work," including Sunday; that no overtime was paid; that the work was "all at a straight time rate"; that he received as compensation for his work the sum of $267.75; that he was discharged on January 4th, 1928.
The uncontradicted testimony shows that plaintiff and Kohlmeier were discharged at the same time on account of the fact that they were not union men; that White, the superintendent on the work, had been instructed to employ only union labor "after a certain date," on the particular kind of work that plaintiff and Kohlmeier were doing. Although White and other witnesses, testifying for the defendants, expressed some dissatisfaction with plaintiff’s work, White testified the plaintiff would not have been discharged had it not been for the instructions to the witness to employ union labor only.
The petition alleges that on or about December 5th, 1927, defendants "both orally and in writing did employ plaintiff to do electrical switch board work for a period of two months *** at and for the price of $1.12 ½ per hour with an agreed minimum of sixty hours per week with over time of $15.60 per week or a total price per week of not less than $83.10." Judgment was prayed in the sum of $415.50 with interest.
In its answer, McClelland and Junkersfeld, denies that plaintiff was employed for any definite length of time, and alleges that plaintiff was employed from hour to hour at the rate of $1.12 ½ per hour, as long...
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