Hamilton v. Love

• Decision Date: 08 March 1899
• Parties: HAMILTON et al. v. LOVE.
• Court: Indiana Supreme Court

152 Ind. 641

53 N.E. 181

HAMILTON et al.

v.LOVE.

Supreme Court of Indiana.

March 8, 1899.

Appeal from superior court, Vigo county; O. F. McNutt, Judge.

On rehearing. Affirmed.

For former opinion, see 43 N. E. 873.

S. R. Hamill, S. C. Stimson, A. M. Higgins, H. A. Condit, and R. B. Stimson, for appellants. Mark, Henry & Crane, for appellee.

DOWLING, J.

Action by appellee for damages for breach of executory contract for employment. The alleged breach consisted in the wrongful discharge of appellee while the contract had one year and eight months to run, for which time he would have been entitled at the contract rate to $3,600, payable in monthly installments. Verdict and judgment for appellee.

The overruling of the demurrer to the complaint, and the giving of certain instructions, are the errors complained of. The specific objections to the complaint are that “it does not allege damages,” and that “it fails to show that appellee could not, with reasonable care and diligence, have obtained other equally profitable employment.” The complaint shows the contract, and a total breach by appellants by the wrongful discharge of appellee; it alleges the readiness and willingness of appellee to continue in such employment; it avers that by the contract appellee would have received $150 per month for the eight months remaining of the second year, and $200 per month for the third and last year; and it concludes with a prayer for damages for the violation of the contract by appellants, and a demand for judgment for $3,600. These facts were sufficient to constitute a cause of action. The remedy of a servant discharged without sufficient cause, before the expiration of the period of service stipulated for, is not in assumpsit, as for implied services, or for wages, but is for damages for the breach of the contract. Ricks v. Yates, 5 Ind. 115;Richardson v. Machine Works, 78 Ind. 422;Insurance Co. v. Nexsen, 84 Ind. 347;Hinchcliffe v. Koontz, 121 Ind. 422, 23 N. E. 271;Glass Co. v. Stoehr (Ohio) 43 N. E. 279. In such cases the measure of damages is an amount equal to the stipulated wages for the whole period covered by the contract, less the sum earned, and which probably can, by reasonable diligence, be earned during the time covered by the breach. Hinchcliffe v. Koontz, 121 Ind. 422, 23 N. E. 271;Richardson v. Machine Works, 78 Ind. 422;Howard v. Daly, 61 N. Y. 362;James v. Allen Co., 44 Ohio St. 226, 6 N. E. 246;Olmstead v. Bach, 78 Md. 132, 27 Atl. 501;Costigan v. Railroad Co., 2 Denio, 609; King v. Steiren, 44 Pa. St. 99. The allegations of the complaint touching the loss appellee sustained by the breach are equivalent to a direct averment that he had been damaged to the amount charged. The sufficiency of the averment is to be tested by the rule as to damages under such circumstances, and nothing more need be shown on this subject than the loss of the compensation agreed upon for the unexpired term.

The second objection to the complaint is equally untenable. It is not necessary that the discharged servant should allege in his complaint that since his discharge he has been unable to obtain employment, and has earned nothing. If he has, or by the exercise of reasonable diligence could have, obtained employment, or earned wages after his discharge, these facts are matters of defense, and must be established by the master. Dunn v. Johnson, 33 Ind. 54;Printing Co. v. Morss, 60 Ind. 153;Railway Co. v. Lutes, 112 Ind. 276, 11 N. E. 784, and 14 N. E. 706;Hinchcliffe v. Koontz, 121 Ind. 422, 23 N. E. 271;Barker v. Insurance Co., 24 Wis. 630; Wood, Mast. & Serv. 269; Railroad Co. v. Straub, 7 Lea, 397.

At the trial the court gave certain instructions, and modified others, and of this action the appellants complain. One of the instructions given, after modification, was this: “If you believe from the evidence that the plaintiff, within the scope of his alleged employment as solicitor of life insurance, refused to obey or submit to the directions or rules of the defendants, having notice of such directions or rules, or that he so behaved himself as to make it difficult or disagreeable for them to direct and control him in the performance of his alleged duties, the defendants had a right to discharge him from their service, and he cannot recover damages therefor.” The modification complained of consisted in adding the words we have italicized. In this we find no error. If appellants had rules or regulations for conducting their business, and which the servant was required to observe, it was their duty to make them known to him. If the servant had no notice of such rules and regulations, he could not be expected to conform his conduct to them.

Another instruction given, as modified, was as follows: “By the terms of the contract set out in the complaint, the plaintiff sold his services to the defendants for a stipulated time, and for a stipulated price. During the time stipulated in the contract, the defendants not only had the right to such services, but they had a right to direct and control the plaintiff in the performance of such services; and, if the plaintiff refused to submit to such directions and control in material matters, the defendants had a right to discharge him, and such discharge would not be a breach of the contract, and the plaintiff would not be entitled to recover damages therefor.” The qualification of this instruction by the addition of the words “in material matters” was proper. The master would have had no right to discharge the servant for trivial and unimportant acts of disobedience or negligence. Schouler, Dom. Rel. § 462. Whether there had been such disobedience was a question for the jury. For the same reasons it is our opinion that the trial court did not err in charging that, if it was found from the evidence that the appellee had...