Maxton v. Gilsonite Const. Co.

• Decision Date: 15 December 1908
• Citation: 134 Mo. App. 360,114 S.W. 577
• Parties: MAXTON v. GILSONITE CONST. CO.
• Court: Missouri Court of Appeals

114 S.W. 577

134 Mo. App. 360

MAXTON v. GILSONITE CONST. CO.

St. Louis Court of Appeals. Missouri.

December 15, 1908.

1. APPEAL AND ERROR (§ 1011) — FINDINGS OF FACT — CONCLUSIVENESS.

A finding of the court as trier of the facts on conflicting evidence is conclusive on appeal.

2. APPEAL AND ERROR (§ 882) — RECEPTION OF EVIDENCE — MOTION TO STRIKE OUT — MATTERS ELICITED BY MOVING PARTY.

A party eliciting on cross-examination incompetent testimony waives the incompetency of the evidence, and cannot complain of the court's refusal to strike it out.

3. MASTER AND SERVANT (§ 40) — WRONGFUL DISCHARGE — ACTIONS—BURDEN OF PROOF.

In a servant's action for wrongful discharge before the expiration of his term of employment, the burden is on the master to show that the discharge was for good cause.

4. MASTER AND SERVANT (§ 40) — WRONGFUL DISCHARGE — ACTIONS — PLEADINGS — BURDEN OF PROOF.

Since, in a servant's action for wrongful discharge before the expiration of his term of employment, plaintiff need not prove he was discharged without good cause, he does not, by alleging such fact in his petition, assume the burden of proving it.

Bland, P. J., dissenting in part.

Appeal from St. Louis Circuit Court; Robt. M. Foster and Virgil Rule, Judges.

Action by W. R. Maxton against the Gilsonite Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Marion C. Early, for appellant. Arthur G. Moseley, for respondent.

BLAND, P. J.

The action originated in a justice's court, and was in due course appealed to the circuit court, where on a trial de novo to the court sitting as a jury, the finding and judgment were for plaintiff. Defendant appealed. An amended statement was filed in the circuit court, in which it is alleged that defendant, a corporation, in January, 1906, employed plaintiff as superintendent for a period of one year, from February 1, 1906, at a wage of $150 per month, payable monthly. That plaintiff entered upon the performance of his part of the contract on February 1, 1906, and continued to serve defendant as its superintendent until September 1st of the same year, when he was wrongfully and without cause discharged by defendant, and was unable to procure employment for one month and two days thereafter, resulting in his damage in the sum of $161. There is no dispute as to the fact that plaintiff was employed by defendant at a wage of $150 per month, but there is a sharp conflict in the evidence in respect to the time for which he was employed. Plaintiff's own evidence is positive and direct that he was employed for a year; on the other hand, defendant's is equally as positive that he was employed from month to month. The trier of the facts found the employment was by the year, and this court is concluded as to this issue by the finding of the trier of the facts.

Defendant denied the allegation that plaintiff was discharged without cause. On this issue the undisputed evidence is that C. O. Brainerd was general superintendent over all, and plaintiff, as superintendent of construction work, was over all others called in the evidence "superintendents" and "bosses," yet was subordinate to Brainerd. The evidence is also clear that plaintiff was disposed to have his own way, and resented suggestions or directions from Brainerd in regard to the details of his work, and that, while he did not, according to his own evidence, absolutely refuse to carry out some of Brainerd's instructions, he nevertheless failed to do so. It also appears from defendant's evidence, corroborated in part by plaintiff's own...