Glennon v. Lebanon Mfg. Co

• Decision Date: 09 March 1891
• Docket Number: 324
• Parties: JOHN GLENNON v. LEBANON MFG. CO
• Court: Pennsylvania Supreme Court

21 A. 429

140 Pa. 594

JOHN GLENNON v. LEBANON MFG. CO

No. 324

Supreme Court of Pennsylvania

March 9, 1891

Argued February 19, 1891

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF LEBANON COUNTY.

No. 324 January Term 1890, Sup. Ct.; court below, No. 407 June Term 1889, C.P.

On May 23, 1889, there was entered in the court below by appeal from the judgment of an alderman, an action brought by John Glennon against the Lebanon Manufacturing Company, for wages alleged to be due the plaintiff from the defendant company. The defendant pleaded non-assumpsit.

At the trial on October 21, 1889, the following facts were shown:

In January, February and March, 1889, the plaintiff was employed as a machinist in the defendant's shop, at $1.50 per day his duty being to do such work as might be directed by the foreman. On March 25th, he quit work and left the defendant's employ. The total wages earned by him, from the time he was employed in January until March 25th amounted to $99.97, and of that amount there remained unpaid the sum of $51.05.

Some time during the month of January, the plaintiff was directed to turn off four locomotive wheels, to fill an order for work from the Cornwall & Lebanon Railroad Company. He turned the wheels, being occupied in so doing for five or six days. This work was done in a negligent and unskilful manner; and after the railroad company had received the wheels, and had set up the locomotive on which they were to be used, it was found to be necessary, on account of the defective character of the work done by the plaintiff, to take the locomotive apart again and send the wheels back to the defendant's shop to have the defects remedied. The expenses thus incurred by the railroad company amounted to $36.09, which sum was collected by it from the defendant. The defendant incurred a further expense of $2.55 in having the wheels turned a second time and claimed to deduct from the plaintiff's wages the aggregate of these expenditures, $38.64, and alleged that he had consented to such deduction, which allegation the plaintiff denied.

At the close of the testimony the court, McPHERSON, J., charged the jury in part as follows:

The defence is, that some time in the month of January the plaintiff was given certain work to do, and that he did it imperfectly; and that by reason of that imperfection, certain loss accrued to the defendant, which it is right and just the plaintiff should reimburse the company for. That is the defence, as I understand it, to this account. There is also some testimony with regard to an agreement by the plaintiff upon this subject, upon which I will speak a few words to you presently.

[It is said that these damages can be set off in this action; and you have heard some discussion upon that subject. In the present state of the record, it does not seem to me that that is a question I am called upon to settle or decide, for there is no plea of set-off in the case. The plea is simply non-assumpsit; and, therefore, as there is no plea of set-off in the case, I take it that that question in this state of the record does not arise.] But there is this in the case: If the plaintiff, Glennon, did this work in dispute, imperfectly, -- negligently, as is substantially conceded, -- if the jury find that to be the fact, then the defendant would not be obliged to pay him for doing that work, if the injury done thereby to the defendant was greater than his wages. For instance, if, under ordinary circumstances, they would owe him $10 for doing this work, and he had done it so badly that it had cost them $20 to set it right, then of course they would not be compelled or obliged to pay him the $10 which he claimed for doing this worthless, or at least this imperfect work.

[Now, you remember the testimony, which is substantially the same upon both sides upon that branch of the case, that it did take the plaintiff from five to six days to do this work, and that his wages were a dollar and a half a day. That is my recollection of the testimony. If that is true, a man can easily compute what part of this claim would do this work which the defendant complains about. And you also have the testimony about the work claimed to have been done by this company. There is an item of $2.55 which was paid to another employee for turning the wheels over again; and then there is another item of about $36, which was paid by the company because of the imperfect turning of these wheels. You recollect the testimony on this subject. There is no denial of these facts. There is no denial, either, of the fact that these sums, so stated, truly represent the loss occasioned by this work. The contest on the part of the plaintiff is that that cannot be set off. Now, in response to that we say, and I will repeat it just at that point, that in the present state of the record of this case, I do not think the question of set-off arises; but I instruct you, if you find that he did this work imperfectly and badly and without proper skill, and if the damages to the defendant were greater than the amount of the wages claimed, then there can be no recovery on that account -- that is, for those five or six days' work done by the plaintiff upon those wheels.] . . .

The court then submitted to the jury the question whether the plaintiff had agreed with the defendant that the expenses incurred by it should be deducted, and the case being closed, the jury returned a verdict for the plaintiff for $42.23.

A rule for a new trial having been argued, the court, McPHERSON, J., filed the following opinion:

In this suit for wages, the defendant offered to set off certain damages arising from distinct and independent work performed unskilfully by the plaintiff. If we thought the defence would be admissible we would grant a new trial, but we cannot satisfy ourselves that it would be permitted by our defalcation act. Under that act, "when the damages arise from a tort, they certainly cannot be allowed:" Gogel v. Jacoby, 5 S. & R. 116; Hunt v. Gilmore, 59 Pa. 452; and the substance of this defence plainly is, that the damages arise from a tort, viz., the negligence or unskilful work of the plaintiff: Zell v. Arnold, 2 P. & W. 292; McCahan v. Hirst, 7 W. 179.

It is true that, when the charge of negligence or unskilfulness is directly connected with the plaintiff's cause of action, the defendant may prove it; not, however, by way of set-off, but as evidence of a total or partial failure of consideration for his promise to pay: Price v. Lewis, 17 Pa. 51; Leech v. Baldwin, 5 W. 446; Blessing v. Miller, 102 Pa. 45. And it is also true that an action of assumpsit, based upon an implied contract, will lie to redress certain kinds of tort, among others, the unskilful doing of work: Conn v. Stumm, 31 Pa. 14; Reeside v. Reeside, 49 Pa. 322; but this does not make the cause of action less a tort than before, it only concerns the remedy.

There are some inconveniences in forbidding the settling of several small disputes in one action, but if a remedy is desirable it must be sought in legislation. It is distinctly ruled that our defalcation act does not apply to damages "arising from a tort," and it does not affect this ruling to hold also that for some torts the action of assumpsit is an appropriate remedy.

New trial refused, and judgment directed on the verdict upon payment of the jury fee.

Judgment having been entered, the defendant took this appeal, assigning for error, inter alia:

1, 2. The parts of the charge embraced in []

The judgment is reversed, and a venire facias de novo awarded.

Mr. Grant Weidman (with him Mr. Frank E. Meily), for the appellant:

The court below treated the defendant's claim as an attempt to set off damages arising from careless or negligent performance of distinct and independent work. While we do not admit that even this could not be done, we assert that this view was based on a misapprehension of the case.

1. The plaintiff was not employed by the job, or for any special work. The contract of employment was entire. There was an...