Hutton v. Lambardi

• Decision Date: 23 November 1915
• Docket Number: No. 141600.,141600.
• Citation: 180 S.W. 566
• Parties: HUTTON v. LAMBARDI et al.
• Court: Missouri Court of Appeals

180 S.W. 566

HUTTON v. LAMBARDI et al.

No. 141600.

St. Louis Court of Appeals. Missouri.

November 23, 1915.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by J. S. Hutton against Mario Lambardi and others. Verdict for defendants, and from an order granting a new trial, they appeal. Reversed and remanded, with direction to reinstate the verdict and to enter up judgment in favor of defendants.

Frumberg & Russell, of St. Louis, for appellants. Sidney W. Soloman and George D. Little, both of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff brought his action on an account for eight weeks' services at $90 a week for the weeks beginning December 21st, 1911, and ending February 15th, 1912, a total of $720, and also for $32.-80 petty expense account. Crediting the account with $535 paid, he demanded judgment for the balance, $217.80. There was a general denial; trial before the court and a jury. A verdict being returned for defendants, plaintiff filed his motion for a new trial. The court granted a new trial, assigning as the sole reason for that, error in giving the third instruction, given by the court with others of its own motion and in lieu of instructions asked by plaintiff. From this action of the trial court defendant has duly appealed to our court, assigning that action as error.

The controversy is really over liability of the defendants for three weeks of the eight claimed, defendants having paid for four weeks and a day, as we understand, and paying $90 for an extra week, by way of compromise in full, as claimed, deny liability for the other three weeks.

There was testimony tending to show that plaintiff's employment was for four weeks and a day, which would end it the night of January 31st; that on January 24th defendants notified plaintiff in writing that his employment would end with the night of January 24th; that plaintiff refused to accept this, writing that when he met one of defendants they would go over the matter; that they met February 4th, and after some discussion defendants, by way of compromise and settlement paid plaintiff $90 for one extra week, which plaintiff accepted in full settlement and afterwards acknowledged that he had done so; that at his request plaintiff was allowed to continue to represent defendants at St. Louis until February 15th; that he did so to some extent, but that this was under an express agreement on the part of plaintiff that he would do so gratuitously and for his own benefit, not looking to defendants for any compensation.

There was a sharp conflict in the testimony of plaintiff and that produced by defendants as to very many of these matters, especially as to the termination of the employment under the contract, and as to the extent of the services plaintiff continued to render for defendants at St. Louis after February 4th, and made it a case for the determination of the jury under proper instructions.

The court of its own motion gave three instructions. The third is the one on account of giving which the court granted a new trial.

The third instruction is to the effect that defendants had the right to terminate the employment of the plaintiff at the end of any week by so notifying him, and that if the jury found and believed that defendant terminated the employment by notice to plaintiff and paid plaintiff all sums due up to that time, their verdict should be for the defendants, "unless you find that defendants did notify plaintiff that it terminated the contract, but that after the contract was terminated defendants continued the plaintiff in their employ, then they became liable for such services as he rendered thereafter at the rate of $90 per week, unless you find that there was an agreement between plaintiff and defendants that he was rendering the services gratuitously and without expectation of being paid therefor."

Another instruction, No. 2, told the jury that if they found and believed from the evidence that plaintiff remained in the employ of the defendants throughout the St. Louis engagement of the opera troupe of which defendants were managers and conductors, with the consent of the defendants and that in the course of such employment plaintiff was instructed by the defendant Gallo as to the duties he was to perform and that he performed these duties, "then plaintiff is entitled to recover for said services at the rate of $90 per week, unless you find that he...