Lindner v. Cape Brewery & Ice Company

• Decision Date: 26 May 1908
• Citation: 111 S.W. 600,131 Mo.App. 680
• Parties: LINDNER, Respondent, v. CAPE BREWERY & ICE COMPANY, Appellant
• Court: Missouri Court of Appeals

111 S.W. 600

131 Mo.App. 680

LINDNER, Respondent, v. CAPE BREWERY & ICE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 26, 1908

Appeal from Cape Girardeau Court of Common Pleas.--Hon. Benj. F Davis, Judge.

MODIFIED AND AFFIRMED.

Robert L. Wilson and M. A. Dempsey for appellant.

Plaintiff's action is not upon a quantum meruit, but upon the contract and he is not entitled to recover anything in this cause unless he has established a wrongful discharge. Bean v Watkins, 27 Mo. 518. There was no wrongful discharge of plaintiff, but in legal contemplation there was an unjustified abandonment of the contract on his part. (a) Difficulty with a fellow-servant is not ground for abandonment. Aaron v. Moore, 34 Mo. 79; Mullen v. Gilkerson, 19 Vt. 503. (b) It is an implied condition that the servant shall yield obedience to all lawful and reasonable orders, commands or rules established by the master for the conduct of his business, and a failure to do so constitutes a breach of duty. Willful disobedience of such orders is recognized by all the authorities as ground for discharge. McCain v. Desnoyers, 64 Mo.App. 66; Jordan v. Weber M. Co., 77 Mo.App. 572; Stevens v. Crane, 37 Mo.App. 487.

Charles H. Daues and David B. Hays for respondent.

(1) This is a suit upon a contract and if plaintiff can show that he was wrongfully discharged, he is entitled to recover damages equal to his entire wages. Booge v. Railroad, 33 Mo. 216; Wilcox v. Baer, 85 Mo.App. 594; 2 Parsons on Contracts (6 Ed.), p. 42; 26 Cyc. 1011. (2) Where a master discharges a servant for breach of duty the issuable fact is not whether there was a breach of duty, but whether there was such a breach as constituted reasonable ground for terminating the contract. 26 Cyc. 1005. (3) The only way in which plaintiff's unpleasant relations with other servants are shown to have produced or threatened to produce, effects injurious to the master's business, was indirectly by the unwarranted interference of the union, and this would not excuse or justify defendant in discharging plaintiff. Land and G. Co. v. Com. Co., 138 Mo. 445; Swaine v. Blackmore, 75 Mo.App. 74.

OPINION

GOODE, J.

By a contract entered into January 2, 1905, plaintiff engaged for service in defendant's brewery. The contract was in writing and its terms are clear. Plaintiff agreed to continue in the employ of defendant for two years from the date of the instrument at defendant's brewery in the city of Cape Girardeau, perform therein the duties of brewmaster and act as foreman of the bottling department, diligently serve defendant in such other business as its manager might direct and carry out the directions of said manager in the performance of all services. Other stipulations not material to the present case follow, and then a recital that the contract was made for the purpose of obtaining the exclusive services of plaintiff, his special knowledge, skill and experience and an agreement that he would bind himself not to engage in brewing within said two years except as an employee of defendant. In consideration of those things defendant bound itself to pay plaintiff $ 3,000 a year as follows: one hundred dollars on the first and sixteenth days of each month during the existence of the contract and $ 600 on the second days of January, 1906, and 1907. Plaintiff worked under the contract without serious dispute with defendant or its other employees until September 1, 1906, and was paid for his services to that date. He had been somewhat rough in his speech to the employees in the bottling department, but no open rupture between plaintiff and any of them occurred until about September 13th. On said day he observed in said department a few bottles which had been washed but not thoroughly cleansed, as he thought, and spoke about their condition to an employee named Kimmick, who was called the "first man" in the department, at the same time applying an offensive epithet to Kimmick. The latter said it was impossible to wash the bottles clean and make eighteen barrels of beer a day; meaning the brewing was pushed beyond the capacity of the men. A few words passed and plaintiff told Kimmick to go to the office and get his time; in fact paid him and laid him off from work. This was early in the forenoon, and at the time William G. Coerver, the president and general manager of the brewery, was attending to business elsewhere in the city. The employees of the building belonged to a trade union and at noon they notified the general manager they would all quit work if Kimmick was discharged. It should be stated plaintiff had power to suspend any employee, but final decision as to whether the suspension should stand or not, rested with Coerver. A circus was to come to town the next day and a big sale of beer was expected; some of the beer in the vats needed care to prevent it from spoiling, and a contract had been made between defendant and a brewing concern in Ste. Genevieve, by which a large quantity of beer was to be furnished by defendant during the next few months and it would have to be brewed. These facts made Coerver unwilling to lose the services of either plaintiff or the other employees. According to Coerver plaintiff insisted on his letting the employees go, saying he (plaintiff) could get others in Cape Girardeau, Bellville or St. Louis, to run the brewery. Plaintiff insisted, too, there was so much beer on hand it did not matter if the brewery was idle a while. Coerver reinstated Kimmick and refused to let plaintiff hire a new first man for the bottling department. After these occurrences plaintiff refused to enter said department of the brewery or to act as superintendent of the men there, though he says he was willing to do so if Kimmick would come to him and agree to obey his orders. The testimony of the other witnesses who spoke on this issue was that plaintiff refused absolutely to go about the bottling department or have anything to do with the men who worked there. We quote enough of plaintiff's testimony to show his attitude according to his own statements:

"I didn't go into the bottling shop any more because if I go in these fellows run me out with the hose. . . .

"Q. I will ask you if you did not refuse after that--when you said he didn't take your orders--if you didn't refuse to go into the bottling department? A. I told Mr. Coerver he didn't wash the bottles clean any more, and then I fired him, and Mr. Coerver hired him back again, and then I said to Mr. Coerver, 'I am not willing to go into the bottling department any more until Sam Kimmick tells me he will follow my orders; in that case I would be willing to work with him.'"

In rebuttal plaintiff testified as follows:

"Q. Isn't it a fact that you told Mr. Coerver when these men struck, that you--if he would retain that man--wouldn't go down to the bottling department? A. I told Mr. Coerver I would be willing to work down there if Sam Kimmick would obey my orders; but he never came to me; but later on if he would have come back and said: 'I have done you a little wrong,' I would have been willing to work with him."

The substance of plaintiff's testimony is that he refused to go into the bottling department after Kimmick was reinstated, unless the latter would come to him, apologize and agree to obey his orders, and that he (plaintiff) did not again enter said department, though Coerver endeavored to persuade him to do so. The testimony of Coerver agrees with plaintiff's except it shows in detail the efforts of Coerver to induce plaintiff to resume superintendence of the bottling and presents plaintiff's refusal as obstinate and perverse. On Saturday, September 15th, Coerver got the board of directors together and an attempt was then made to bring about a settlement; but the men persisted in saying they would quit work if Kimmick was not allowed to remain, and plaintiff refused to have anything to do with the bottling department unless Kimmick was dismissed. Finally the directors treated plaintiff's conduct as a refusal to perform part of his contract of service, and on Monday, September 17th, when he returned to the brewery, Coerver offered him a check for $ 525, telling him the directors had decided to ask for his resignation. Plaintiff refused to resign or take the check and Coerver told him if he would not accept the check he would get nothing. Plaintiff sought an attorney who prepared a letter to Coerver, stating that Lindner had been discharged on Saturday the 15th, and demanding his reinstatement or pay in full as per contract to January 2, 1907. The letter said Lindner was ready and willing to carry out his part of the contract, and if Coerver refused to permit him to serve the company in the capacity of brewmaster and foreman of the bottling department, payment in full would be expected of all damages that might accrue by reason of the company's breach of the contract. This letter was presented to Coerver by plaintiff in person on September 18th, but Coerver declined to take plaintiff back into service; as he had the right to do if plaintiff had been discharged for lawful cause.

This action was instituted to recover $ 1,400 alleged to be due under the contract; that is to say, $ 100 every two weeks from September 1st to January 1st, and $ 600 which would fall due January 2d. The petition states the terms of the contract and alleges plaintiff complied with it in every particular but defendant failed to comply by discharging him and demanding he leave the premises and not return. The answer admits the execution of the contract, denies plaintiff complied with its provisions, that he served defendant faithfully, that he was discharged, was ready and willing to continue his work, or offered to do so. A...