Kimberlin v. Short
| Decision Date | 08 February 1887 |
| Citation | 24 Mo.App. 643 |
| Parties | W. H. KIMBERLIN, Appellant, v. JOHN L. Short, Respondent. |
| Court | Missouri Court of Appeals |
APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.
Reversed and remanded.
Motion for re-hearing denied.
Statement of case by the court.
The plaintiff sued defendant to recover the sum of one hundred and twenty-five dollars, for money had and received. The answer, after tendering the general issue, pleaded that the plaintiff had made a contract with defendant in March, 1884, by which he had engaged the professional services of defendant to assist plaintiff in and about an eye and ear infirmary in Kansas City. The employment was for two years, at a stipulated price. That defendant entered plaintiff's service, and so continued until the first day of November, 1884, when the plaintiff without just cause dismissed the defendant. The answer pleads as a counter-claim the contract price for the residue of the period covered by the contract. To this the plaintiff replied, denying that defendant entered his service at the time stated, and putting in issue the allegation of discharge. It then alleged that defendant had wholly failed to keep and perform the contract on his part, with specific charges of defendant's refusal to obey the lawful orders of his principal; that he had, in violation of good faith and his trust, disclosed the contents of a letter from plaintiff, written while absent from the infirmary, to defendant respecting its management, etc.; that defendant, while in said employment, had spoken publicly and privately in a disrespectful manner of the inmates of the hospital, and circulated false and slanderous reports respecting them, to the great injury of the business; that he was guilty, on divers occasions, of rude and ungentlemanly conduct towards the female patients of the institution, while attending their place of business for treatment, whereby they were deterred from attending on the same in plaintiff's absence; and that defendant failed to account for and turn over to plaintiff moneys collected by him in said business, when demanded so to do.
The cause was submitted for trial before the court sitting as a jury. There was evidence tending to support the allegations of the petition, those of the answer and the reply. The court found the issue for the plaintiff as to the one hundred and twenty-five dollars, which allowed with interest; and then allowed defendant's counter-claim to the amount of $259.50, leaving a balance due defendant, after deducting the amount of plaintiff's claim, of $130.20, for which it rendered judgment in favor of defendant. The plaintiff prosecutes this appeal.
W. C. STEWART, for the appellant.
I. The court was bound to give the instructions asked by plaintiff unless they did not state the law of the case. Davis v. Scripps, 2 Mo. 187; Cunningham v. Snow, 82 Mo. 587; Miller v. Brenecke, 83 Mo. 163 and 42 Mo. 44.
II. The court erred in finding that defendant was entitled to any thing on his pretended set off. Plaintiff did not admit that he discharged defendant, but denied it, both in the pleadings and on the stand as a witness. The issue in the reply was to the whole answer. Steph. Plead. 381; Gould Plead. sect. 36; Bank v. Hagan, 47 Mo. 472; Ellis v. Railroad, 55 Mo. 278; Doolittle v. Green, 32 Iowa, 123; Wall v. Water Co., 18 N. Y. 119.
III. The court's finding and judgment were not responsive to all the issues, but are evidently based on a partial consideration thereof, and the findings appear by the bill of exceptions.
IV. The court erred in overruling plaintiff's motion for a new trial, and also in overruling motion in arrest of judgment. Erdbruegger v. Meier, 14 Mo. App. --; Mooney v. Kennett, 19 Mo. 551; Clark's Adm'r v. Railroad, 36 Mo. 215; Pitts v. Frigate, 41 Mo. 405.
JOHN W. BEEBE, for the respondent.
I. The evidence supports the finding of the trial court that defendant was discharged without just cause
But even if doubtful the facts will not be reviewed here, upon appeal. Miller v. Brenecke, 83 Mo. 163.
II. The instructions asked for plaintiff were properly refused. They are incorrect in form and substance, and do not present the law applicable to the case.
III. A servant may fail faithfully to perform his duties and yet not be subject to an absolute discharge. The conduct of his employer may be such as to excuse his non-performance. The question whether just grounds existed for defendant's discharge was for the court to decide upon a consideration of all the facts and circumstances. 2 Kent's Comm. (11 Ed.) 288; Sugg v. Blow, 17 Mo. 359; Callo v. Brouncker, 4 C. & P. 518.
IV. The retention of the money collected was proper under the circumstances, as the finding of the court establishes the fact that plaintiff was liable for damages at the time defendant refused to turn over the money. Smith v. Thompson, 8 C. B. 52.
V. The fact of discharge is clearly established by the evidence and was so found by the court.
VI. On motion for re-hearing. The opinion of the trial court is no part of the record and cannot be treated as a special finding of facts or special verdiot. Weiland v. Lemuel, 47 Mo. 322; Gess v. Eubank, 29 Mo. 248. Nor can it be considered as a declaration of law and is not to be reviewed here. Hyeronimus v. Allison, 52 Mo. 102; Breckenridge v. Cass Co., 87 Mo. 70.
I. The action of the trial court in refusing declarations of law asked by plaintiff is assigned for error. We cannot take notice of this assignment because the attention of the court was not called to this error in the motion for new trial. Matlock v. Williams, 59 Mo. 105; Carver v. Thornhill, 53 Mo. 283; Joyce v. Murnahan, 17 Mo. App. 11; City of Linneus v. Dusky, 19 Mo. App. 20; Schlicke v. Gordon, 19 Mo. App. 479; Griffin v. Regan, 79 Mo. 73; State v. Burnett, 81 Mo. 120.
II. The chief object of having declarations of law, where the case is tried by the court sitting as a jury, is to ascertain upon what theory of the law the court reached its conclusion. We are enabled to ascertain this fact in this case, because the court delivered a written opinion, which is preserved in the bill of exceptions. The court found that the reply “admits the contract and the discharge.”
We are of opinion that it is a misconstruction of the reply to hold that it admits the allegation of discharge of defendant by plaintiff, as alleged in the answer. The allegation of the answer is, that “plaintiff, without just cause, discharged the defendant.” The reply is, that “plaintiff denies that he discharged defendant, without just cause.”
It is questionable to my mind whether under the old system of pleading this reply was obnoxious to the objection of being a negative pregnant, or leaving it so ambiguous as to whether it was the intention of the pleader to put in issue the fact of discharge or of its justice, as to warrant the conclusion of the trial court. Gould Plead. ch. 6, pt. 1, sect. 36. Be this as it may, under our code of practice we hold that the reply went to the whole averment of the answer and put both facts in issue, especially so after verdict. In Wall v. The Buffalo Water Works Co. (18 N. Y. 119), the averment was, that the plaintiff fell into a ditch, while walking in the street, as he lawfully might do, and without any fault or want of care on his part. The denial of the answer was: “And the defendant denies that the plaintiff, without any fault or want of care on his part, did fall into the ditch.” It was held, after verdict, that this put in issue the fact of plaintiff falling into the ditch as well as the exercise of due care on his part; that while the answer may have been open to criticism as a species of negative pregnant, the plaintiff, if dissatisfied with it for uncertainty, should have remedied the defect by appropriate motion.
A like ruling was made by the Supreme Court of Iowa, in Doolittle v. Green, 32 Ia. 123. And is, in effect, followed by our Supreme Court in First Natl. Bank v. Hogan (47 Mo. 472), and Ells v. Railroad, 55 Mo. 278.
The trial court, therefore, proceeded on a false assumption as to the legal effect of the pleadings. And as it was a most material matter at issue as to whether the defendant had in fact been discharged by the plaintiff when he left his service, the plaintiff was entitled to have this question fully and fairly considered by the trier of the fact, uninfluenced by any such consideration as that it was primarily resolved in favor of defendant by the pleadings.
It is true the court in its opinion laid some stress on the fact that a notice published by the plaintiff on the thirty-first day of October, 1884, stated that the defendant had been discharged; yet in view of the whole testimony relative to this issue we cannot divest ourselves of the impression that the conclusion of the court was largely influenced, in its analysis and summing up of the whole evidence, by its pre-conceived notion that the plaintiff had admitted the fact of discharge in his reply.
The interview between plaintiff and defendant, at which the discharge, if made at all, occurred, took place two days, or more, prior to the thirty-first of October. The evidence quite clearly showed that on the occasion of this interview the plaintiff informed the defendant that reports had come to him of his gross misconduct; that he would put the charges in written form; that he demanded of defendant that he cast up the book accounts, which seem to have been kept by defendant, to ascertain how much money he had coming to plaintiff, and should pay it over; and that he stood suspended until he did so, and made answer to or explanation of the charges brought against him. Now it occurs to us that it can hardly be said, as a conclusion of law, that this amounted to a discharge eo instanti.
It was rather a suspension of the functions, for the time, of defendant as an assistant in the establishment, with authority to treat patients and collect funds. The intendment,...
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