Getty v. Roger Williams Silver Co.

• Decision Date: 15 May 1917
• Citation: 221 N.Y. 34,116 N.E. 381
• Parties: GETTY v. ROGER WILLIAMS SILVER CO.
• Court: New York Court of Appeals Court of Appeals

221 N.Y. 34

116 N.E. 381

GETTY

v.ROGER WILLIAMS SILVER CO.

Court of Appeals of New York.

May 15, 1917.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Innes Getty against Roger Williams Silver Company. From a judgment of the Appellate Division (162 App. Div. 513,147 N. Y. Supp. 1083), reversing a judgment upon a verdict in favor of plaintiff, plaintiff appeals. Reversed and remitted to the Appellate Division.

McLaughlin, J., dissenting.

Martin L. Stover, of New York City, for appellant.

Stephen P. Anderton, of New York City, for respondent.

POUND, J.

The action is to recover damages for the alleged wrongful discharge of plaintiff from defendant's employ; and the only question on this appeal is whether on the evidence plaintiff was entitled to go to the jury. Defendant manufactures silverware at Providence, R. I. It first employed plaintiff in 1907, but in 1909 he was placed in charge as sales agent of a New York office or sample room on the tenth floor of an office building at No. 520 Fifth avenue. The office was equipped with goods for display purposes, but plaintiff traveled widely and took samples about with him. He was to be paid a commission of 9 per cent. on all goods sold in his territory. He was to receive $250 a month and traveling and office expenses, including clerk hire, which were charged against his 9 per cent. commission. At the end of the year he was to receive the difference between the 9 per cent. and the advances, but if the advances exceeded the 9 per cent. he was to remit the balance to the company. He continued the business on a yearly hiring through the years 1909 and 1910 and until July 1, 1911, when he was discharged as he claims, wrongfully; as the defendant claims, for a clear violation of duty. He had in his care goods worth $10,000 to $15,000. Not only were his sales considerable in themselves, being upwards of $100,000 a year, but in 1910 they amounted to nearly 50 per cent. of the total sales of the defendant. His total earnings for that year were upwards of $5,000. His only helper in the office was a 19-year old boy named Childs, who had, at the time of the discharge, been employed for two years. On or about June 26, 1911, an incident occurred on which defendant seeks to justify the discharge of plaintiff. He had two trunks of samples, worth about $2,000, to be shipped to Providence. No goods were shipped from the New York office to customers, but plaintiff took out his trunks from there when he went on his trips and sometimes shipped samples back to the factory. Childs, who looked after the shipments, on this occasion took the trunks down on the elevator and left them in the hall. He had telephoned for the express company to send for them, but before the wagon arrived the trunks disappeared, after they had been in the hall not more than 15 minutes. Plaintiff testifies that he did not know that goods were left in the hall until after the robbery; that he left the whole matter to Childs. It does not appear that he gave Childs any definite instructions or supervised his work in this regard. It cannot be denied that Childs was careless in leaving the silverware unguarded in the public hall of an office building. On June 22, 1911, two trunks full of silverware were left in the hallway over night because the expressman refused to take them, having no room on the eagon for them. Plaintiff knew that these trunks were not taken by the express company until the next morning, for he reported the fact to the defendant. No losses of silverware had previously occurred which can be said as matter of law to have been the result of carelessness. An insurance company paid defendant $1,800 on this loss. On June 30th plaintiff was notified by defendant that his services would no longer be required.

[1][2][3][4] The Appellate Division holds as matter of law that defendant was justified in discharging plaintiff; that he was guilty of culpable negligence-‘careless in the extreme’-in handling defendant's business and property; that he was chargeable personally with the act of Childs in leaving the silverware unguarded in the hall; and that his complaint must be dismissed. We think that it is not so clear that plaintiff was guilty of conduct inconsistent with the due and faithful discharge of the duties for which he was engaged. Childs had handled the shipments for two years, and the inferences most favorable to plaintiff (McNally v. Phoenix Ins. Co., 137 N. Y. 389, 394,33 N. E....