Heideman v. Tall's Travel Shops, Inc.

• Decision Date: 07 December 1937
• Docket Number: 26695.
• Court: Washington Supreme Court
• Parties: HEIDEMAN v. TALL'S TRAVEL SHOPS, Inc.

73 P.2d 1323

192 Wash. 513

HEIDEMAN v. TALL'S TRAVEL SHOPS, Inc.

No. 26695.

Supreme Court of Washington

December 7, 1937

Department 2.

Appeal from Superior Court, King County; Roger J. Meakim, Judge.

Action on contract by Karl P. Heideman, as administrator of the estate of Sam Dubrovsky, deceased, against Tall's Travel Shops, Incorporated, a corporation. Judgment for plaintiff and defendant appeals.

Remanded to superior court with direction to dismiss.

Eimon L. Wienir, of Los Angeles, Cal., and Sam L. Levinson, of Seattle, for appellant.

Karl P Heideman and Stewart N. Lombard, both of Seattle, for respondent.

GERAGHTY Justice.

This action was brought by the plaintiff to recover damages for breach of a contract for life employment, alleged to have been made with the defendant.

It is alleged in the complaint that, in August, 1934, the defendant, in consideration of the plaintiff's leaving a job at which he was then employed and taking employment with the defendant, entered into an oral agreement with the plaintiff, by the terms of which he was to be given employment for the rest of his life at a wage of $20 for a five-day week.

That the plaintiff entered upon the performance of the contract and worked for the defendant until December 14, 1934, at which time the defendant informed him that there would be no work for two weeks, and refused him employment during that period, although he was at all times ready, able, and willing to work for the defendant; that on December 28, 1934, the plaintiff returned to the defendant's employ and remained until January 2, 1935, at which time the defendant discharged him without any fault on his part. From the time of his discharge to the commencement of the action, the plaintiff had been unable to obtain other employment. In his original complaint, the plaintiff asked for a judgment of $15,820, the amount of recovery sought being reduced by a trial amendment to $3,541.

After a demurrer to the complaint had been overruled, the defendant answered by a general denial, except as to the admission of the employment of the plaintiff from a date in August to December 14, 1934, and for two or three days subsequent to December 28, 1934.

After the denial of motions interposed by the defendant at the close of the plaintiff's case for a directed verdict, as well as at the close of all the testimony, the court submitted the case to the jury, which returned a verdict in favor of the plaintiff for $280. A motion for judgment notwithstanding the verdict having been denied, judgment was entered upon the verdict.

The defendant appeals.

Subsequent to the taking of the appeal, the respondent died, and an order was entered substituting the administrator of his estate as respondent. To avoid confusion, the plaintiff below will be referred to in our discussion as decedent.

The decedent had been employed by the Seattle Suitcase Company for several years prior to the time he entered the employ of the appellant. He testified that, some time during the summer of 1934, Mr. Tall, the president and principal stockholder of the appellant, called at his home and asked him to go to work for the appellant.

'I told him I had a steady job. Mr. Tall said, 'We will give you more wages.' I said to him, 'You work up a lot of cases and lay me off.' Mr. Tall said, 'No, we don't lay you off. You can work as long as you live.' He said in Jewish, 'Your whole life you can work.' The second time, he came to my store. Mr. Tall said, 'We have to have a mechanic. We have a factory and need you.' I told him, 'I don't know. I'll have to think it over.' Mr. Tall said, 'No, you have a life job.' The third time Mr. Harry Tall came to my home with his brother George, and the following conversation took place:

'Mr. Tall: 'Well, what have you decided? We have to have you.' Mr. Dubrovsky: 'I am working at my place steady and I don't know.' Mr. Tall: 'Well, we'll make you satisfied. We have lots of room. Good place. A new shop.' Mr. Dubrovsky: 'I will think it over.' * * *

'The following Saturday I go to his store. I told Mr. Tall, 'I am afraid you lay me off, I have a good job.' Mr. Tall and his brother George said, 'Well you come to work?' I said, 'I want to find out how much wages you give me.' Mr. Tall said, '$18.00'; and I said '$18.00 I don't want. I want $20.00.' Mr. Tall said, 'O. K., $20.00. You go ahead right away and bring your tools.' I said, 'O. K.,' and I go and bring my tools.'

On cross-examination, he testified:

'Q. Did you ever tell Mr. Tall that you would work for the balance of your life for his company? A. That was never discussed. That never came up.

'Q. Did you tell Bill Thomas, on the Monday that you first went to work for Tall, that you would only work until Christmas time? A. Yes, I tell Bill Thomas, 'Don't be afraid. I'll only be here till Christmas.' But I didn't tell him how much wages I got. * * *

'Q. Did you tell Bill Thomas while you were employed at Tall's that you were going to California after Christmas? A. Yes, I tell him I go to California, or whole United States, after Christmas.'

Asked about the execution of the agreement he said: '* * * I never asked Tall for a writing. I got no writing of any kind. No, I never asked any officer of the Board of Trustees for a contract. I don't have to ask. I believe him. I didn't ask Kotkins (of the Seattle Suitcase Co.) either, and I worked for him for nine years. The only difference between my job at Kotkins' and my job at Tall's is more money at Tall's.'

It may be seriously questioned whether the decedent's testimony, taken as a whole, tends to establish more than assurance that he would have a 'steady job,' as that term is commonly understood; an employment terminable at the will of either party.

While he testified that Tall said, 'Your whole life you can work,' he told Bill Thomas, one of his fellow employees at the Tall shop, that he intended to work only until after Christmas, when he was going to California. He testified that the difference between Tall's job and his former one at the Seattle Suitcase Company, where he had been employed for nine years, was the higher wages paid by Tall.

But if it be assumed that there was otherwise evidence enough to submit the question of decedent's life employment to the jury, the agreement would be unenforceable for want of any consideration moving to the appellant to support it other than the rendition of service by the decedent.

In Minter v. Tootle, Campbell Dry Goods Co., 187 Mo.App. 16, 173 S.W. 4, 8, the plaintiff was employed by the defendant for a term which he supposed to be permanent. Discharged some two years thereafter, he brought an action to recover unpaid salary. In order to enter into the defendant's employ, the plaintiff gave up another employment. The court said:

'The reported cases which deal with contracts of employment in commercial business, where no other consideration than a promise to perform the service...