Finger v. Koch & Schilling Brewing Co.

• Citation: 13 Mo.App. 310
• Court: Missouri Court of Appeals
• Decision Date: 27 February 1883
• Parties: FRITZ FINGER, Respondent, v. KOCH & SCHILLING BREWING COMPANY, Appellant.

13 Mo.App. 310

FRITZ FINGER, Respondent,

v.KOCH & SCHILLING BREWING COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 27, 1883.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Reversed and remanded.

LOUIS GOTTSCHALK, for the appellant: An indefinite hiring is a hiring at will; and a hiring at so much a year is an indefinite hiring. This rule is inflexible, and, if applied to this case, shows that plaintiff never was hired for the definite period of one year.--Wood on Master and Servant, 271-274, sect. 134. Plaintiff in his reply did not justify his acts, but denied them. He should have been non-suited on his evidence.-- Posey v. Garth, 7 Mo. 94; Wood on Master and Servant, sects. 110, 111, 116, 124, 159. The plaintiff could not recover the full amount of his wages, as a matter of course, as this was only the utmost he could get. The measure of damages, as given by the court, was improper.--Wood on Master and Servant, sects. 125-132; Stone v. Vincent, 7 Mo. App. 277; Moody v. Leverich, 4 Daly, 401.

GOTTSCHALK & BANTZ, for the respondent, cited: Bascom v. Shillito, 9 Cent. L. J. 80; Bleeker v. Johnson, 51 How. Pr. 380; Wood on Master and Servant, sects. 210, 211

LEWIS, P. J., delivered the opinion of the court.

The petition states that the defendant employed the plaintiff on October 8, 1879, for one year, as brewer, at a salary of $2,200, and that he was wrongfully discharged on June 26, 1880; for which breach of contract he demands $500 damages. The answer denies generally, and sets up a justification of the alleged discharge. There was a verdict for the plaintiff.

An indefinite hiring, at so much per day, per month, or per year, is a hiring at will, and may be terminated by either party at any time. If the servant seeks to make out a hiring for a year, the burden is on him to establish it by proof. De Briar v. Minturn, 1 Cal. 450. The first essential of any right of recovery by the plaintiff in this case is, that his contract for hiring was for the full term of one year. If there was no evidence even tending to show that such was the contract between the parties, the case should have been withdrawn from the jury, and the judgment must here be reversed.

The only evidence upon which the jury were permitted to find that there was a yearly hiring, is contained in the following statements made by the plaintiff as a witness in his own behalf: “Q. What was the bargain when you went there? A. My bargain was for the whole year, $2,200. * * * Q. Who employed you at that time? A. Mr. Schilling. * * * Q. What did he say to you? A. I asked him if I could stay there for the whole year, and he says, ‘If you do your work well, all right, you can stay for the year on the same contract what we got.’ Q. You had been working there before it was a company? A. I worked pretty near three years before that time. Q. On the 8th of October, when this company was organized, you asked him whether you could stay there, and he told you, if you would do your work all right, you could stay for a year? A. I could stay for a year. Q. Is that all that was said? A. That is all. * * * Q. There was nothing else said than that this was the arrangement, and you went to work? A. I went to work. Q. He told you, if you would do your work right, you could stay there another year, at the same wages you had the...