Gallagher v. Wayne Steam Co.

• Decision Date: 17 October 1898
• Docket Number: 221
• Parties: Robert Henry Gallagher v. Wayne Steam Company, Appellant
• Court: Pennsylvania Supreme Court

41 A. 296

188 Pa. 95

Robert Henry Gallagher v. Wayne Steam Company, Appellant

No. 221

Supreme Court of Pennsylvania

October 17, 1898

Argued February 7, 1898

Appeal, No. 221, Jan. T., 1897, by defendant, from judgment of C.P. Delaware Co., Dec. T., 1896, No. 55, on verdict for plaintiff. Reversed.

Assumpsit to recover balance of salary. Before CLAYTON, P.J.

The facts appear by the opinion of the Supreme Court.

At the trial Walter B. Smith, a witness called for plaintiff testified in chief as follows:

"Q. Mr. Seber was employed by the Wayne Steam Company in the place of Gallagher? A. Yes, sir. Q. What were the wages paid to Mr. Seber?"

Defendant objects.

The Court: It may have some bearing if his discharge was for economy.

Mr Robinson of counsel for plaintiff: I propose to show that it was for the purpose of saving money.

The Court: I suppose so.

An exception is noted for the defendant.

"Q. What were you to pay Mr. Seber? A. To the best of my recollections twelve hundred dollars. Q. As against the twenty-four hundred? A. Mr. Gallagher was to do different work, there were forty or forty-five houses in addition to running the plant at Wayne and doing the house work at Wayne." [1]

The court charged in part as follows:

[The parties have pet great stress on that letter; now it seems to me that the defendant has put too much stress upon it. Now let us read it, taking it for granted it was sent and received. You will observe there was first a letter of October 10; the parties seem to have gotten along pretty well without any unusual friction until October 10, 1893, then Messrs. Wendell & Smith, not Mr. Smith at all, Messrs Wendell & Smith, of which firm Mr. Smith was a member, and had no more right to give instructions to Mr. Gallagher than one of you had. Messrs. Wendell & Smith sent him this letter: "In the work at Overbrook we want you to set up the traps just as they are at the American District Company's place." Now, if that had come from Mr. Smith, as secretary of the Wayne Steam Company, it might be considered a positive direction, but I say to you that Messrs. Wendell & Smith had no right to give that direction. He had given his estimate, and in that estimate the traps were to set in the usual way, and the evidence is almost overwhelming that up to that time they had set them with that hole in them; that was their usual way of setting them. Now, October 10, Messrs. Wendell & Smith, for whom the work was being done, requests that they should be set without the hole; that is Messrs. Wendell & Smith. Now when he answered he said (October 13 is his answer) to Mr. Smith; he speaks about the success of the plant, and that his was the only proper way to set them up, etc., virtually declining to make the alterations. I say to you he had a right to send that letter to Wendell & Smith, and that they had no right to give him directions or orders. Now, the reply to that letter seems to have been one which may have some bearing upon the case. It is signed by Walter B. Smith, secretary of the Wayne Steam Co. He knows his authority to act and to give a positive order; if he has done it, it will be for you to say; that is the turning point in the case, whether Mr. Smith, as secretary, has given him such a positive direction as will mean an absolute command, and if he has, if this letter contains an absolute command, and if he has disobeyed it, then there can be no recovery. He says, "The letter of October 10, in regard to the work at Overbrook, ought to have been signed by me as secretary, as it was between us the agreement was made in reference to this work, as you will see by reference thereto; there has been a continual criticism of the wrong use of the steam appliances furnished to us by the American District Company (Who is criticising this? The American District Company? He doesn't say) and it is with a view to settle these differences that I have written you." (It doesn't say the difference was between the Wayne Steam Company and him, it doesn't say who is criticising the work, but Mr. Smith seems desirous that these criticisms shall end.) "In reply to your letter of the 12th inst. would say that while personally ignorant of many matters in regard to the use of the steam, I can easily recognize the justice of the position of the manufacturer, (Does he mean, therefore, that it is the manufacturer who has criticised this work, or was it the Wayne Steam Company?) who has spent a large amount of time and money to perfect an apparatus, desiring to have it used as built, I do not see that there is enough difference to require you to take the stand that you will not do so." Now as between him and the manufacturer he had a right to take that stand, but not between him and his employer. Now it is for you to say in the fair reading of this letter, whether it was an absolute command. Might not Mr. Gallagher have supposed that Mr. Smith was speaking in the interest only of the manufacturer? "The manufacturer is criticising the work and, as between you and the manufacturer, why do you say you will not set them as they are made." If it was the Wayne Steam Company that directed it to be set as made and he said he would not, I say to you that there can be no recovery if he understood it, or if he ought to have understood the reading of this letter, as a command from this company, and he failed to obey it, he cannot recover. The letter says, "I don't see that there is enough difference for you to take the stand that you will not do so." Now is that a positive command of the company? No, he says "I hope you will give the matter a little further consideration and set traps in the next house or two just as they come to us" (and then he goes on and says), "and relieve you from criticism of being obstinate in carrying out of your own ideas, thanking you very much for your favor, I am, Yours very truly, Walter B. Smith, secretary of the Wayne Steam Company." Gentlemen, that is the most important piece of evidence in the case. It will have to be considered in the light of all the evidence. Does it unequivocally express a command to this man? It hopes that he will consider it. It does not say, "Now, this thing must quit." Mr. Smith might have considered it as a polite way of giving a command. But politeness, you know, does not amount to much when it terminates in a discharge or cutting a man's head off, politeness before and the blow afterwards don't amount to much. A man may say, "My dear sir, will you permit me to cut off your head? Or I intend to cut your head off." You may put it politely if you want to. This was a polite note, and it is subject to considerable or just criticism. I say I take it for granted that this note was received by Mr. Gallagher. The question is whether it conveyed to him clearly and distinctly and unequivocally that he should hereafter "set them as they came from the manufacturer." I say, therefore, that I will leave that question, together with the evidence, with you; you will have to read that letter in the light of surrounding circumstances, in the light of the parol testimony, and if you come to the conclusion that Mr. Gallagher at that time knew, or ought to have known, that that was a command from that time to set these traps as they came from the manufacturer, and he refused to do it, that is an end of his case.]

Defendant's points and the answers thereto were as follows:

1. If the jury believe that the letter of October 10, 1893, from Wendell & Smith to the plaintiff, and the letter of October 13, 1893, from Walter B. Smith, secretary of the company defendant, to the plaintiff, were received by the plaintiff, and subsequent to that time the plaintiff set up steam traps at Overbrook in a manner other than they are designed to be placed by the American District Steam Company, then the verdict must be for the defendant. Answer: I decline to affirm that point. I will leave it to you, I have read the letters to you, and if you come to the conclusion under all of the evidence that Mr. Gallagher ought to have read them as a positive order, and if they give a positive order to set them as they were made, then the point would be affirmed, but I decline to construe these letters as a positive order. I will leave that with you under all the evidence. [5]

2. Under the law and the evidence the verdict must be for the defendant. Answer: I decline to so charge you. Now, gentlemen, you may retire, take the papers with you, and take your time, and try to arrive at a satisfactory verdict. [6]

Verdict and judgment for plaintiff for $1,222.01. Defendant appealed.

Errors assigned were (1) rulings on evidence,...