McGregor v. Harm

• Decision Date: 08 March 1910
• Citation: 125 N.W. 885,19 N.D. 599
• Court: North Dakota Supreme Court

125 N.W. 885

19 N.D. 599

RICHARD MCGREGOR v. HENRY HARM AND JOHN C. OESCHGER, CO-PARTNERS AS HARM & OESCHGER

Supreme Court of North Dakota

March 8, 1910

Rehearing denied April 13, 1910.

Appeal from District Court, Grand Forks county; Templeton, J.

Action by Richard McGregor against Henry Harm and John C. Oeschger. Judgment for defendants, and plaintiff appeals.

Affirmed.

H. A Bronson, D. T. Collins and L. A. Chance, for appellant.

Contract is not severable because wages are made payable weekly. Diefenback v. Starck, 56 Wis. 462, 14 N.W. 621; Dugan v. Anderson, 36 Md. 567, 11 Am. Rep. 509; Olmstead v. Bach, 78 Md. 132, 22 L.R.A. 74, 44 Am. St. Rep 273.

Where servant is discharged before the expiration of the period of his employment, he can recover on a quantum meruit. Tiffany on Domestic Relations, 474; 26 Cyc. 1000 and cases there cited; 8 Current Law, 843; 20 A. E. C. L. 36; Keedy v Long, 71 Md. 385, 18 A. 704; Caldwell v. Myers, 2 S.D. 506, 51 N.W. 210; Ehrlich v. Aetna Life Ins. Co., 88 Mo. 249; Mackubin v. Clarkson, 5 Minn. 247; Milage v. Woodward, 78 N.E. 873; Smith v. Cashie, etc., Co., 142 N.C. 26, 54 S.E. 788; Davidson v. Laughlin, 138 Cal. 320, 71 P. 345; 5 L.R.A. (N. S.) 579, and note appended; Price v. Minot, 107 Mass. 49; Hood v. Hampton Plains Exploration Co., 106 F. 408.

Whether there were sufficient grounds to discharge a servant is for the jury. Knutson v. Knapp, 35 Wis. 86; Lippus v. Columbus Watch Co., 7 N.Y.S. 478; Stover Mfg. Co. v. Latz, 42 Ill.App. 230; Waxelbaum v. Limberger, 78 Ga. 43; Conklin v. Woodbury Dormatological Institute, 51 A.D. 638; Peniston v. John Huber Co., 196 Pa. 580.

Servant need not work unreasonable hours after a full day is served. Wood on Master & Servant (2d Ed.) 227; Koplitz v. Powell, 56 Wis. 671, 14 N.W. 831; Wyngert v. Norton, 4 Mich. 286.

Contract and discharge being shown, it was for the master to show a justification. Webb v. Whitesell, 87 N.Y.S. 454; Sun Print. & Pub. Ass'n v. Edwards (C. C. A.), 136 F. 591; Eubanks v. Alspaugh (N. C.), 52 S.E. 207; Johnson v. Crookston Lumber Co., 100 N.W. 225; Marsh v. Bergman, 84 N.Y.S. 469; Day v. Am. Machinist Press, 86 App.Div. (N.Y.) 613.

Not liable to discharge for disobedience of orders involving no serious consequences to employer. Turner v. Kouwenhoven, 100 N.Y. 115, 2 N.E. 637; Hamilton v. Love, 152 Ind. 641, 53 N.E. 181; 71 Am. St. Rep. 384; Leatherberry v. Odell, 7 F. 641; Shaver v. Ingham, 58 Mich. 649, 55 Am. Rep. 712.

On justifiable discharge servant may recover for services rendered, less offset in damages. Hildebrand v. American Fine Art Co., 109 Wis. 171, 53 L.R.A. 826; Fisher v. Wash, 102 Wis. 172, 43 L.R.A. 810, 78 N.W. 437; Fulton v. Heffelfinger, 23 Ind.App. 104, 54 N.E. 1079; Lambert v. King, 12 La.Ann. 662; McWilliams v. Elder, 52 La.Ann. 995, 27 So. 352; Lawrence v. Gullifer, 38 Me. 532; Shute v. McVitie, 72 S.W. 433; Bedow v. Tonkin, 59 N.W. 222; Pixler v. Nichols, 8 Iowa 106; Duncan v. Baker, 21 Kan. 99; Parcell v. McComber, 7 N.W. 529; Hillyard v. Crabtree, 11 Tex. 264; Children of Israel v. Peres, 2 Coldw. (Tenn.) 620; Mellonee v. Duff, 72 Md. 383, 19 A. 708.

Skulason & Burtness and F. C. Massee, for respondent.

Servant cannot recover for extra work outside of his employment. Luske v. Hotchkiss, 37 Conn. 219, 9 Am. Rep. 314; Levi v. Reid, 91 Ill.App. 430; Mathison v. New York Cent. etc., R. Co., 76 N.Y.S. 89; Koplitz v. Powell, 56 Wis. 671, 14 N.W. 831; Stearn Dredge No. 1, 87 F. 760; Forster v. Green. 69 N.W. 647; Schurr v. Savigny, 48 N.W. 547; Cany v. Halleck, 9 Cal. 198; 34 Cent. Dig. "Master & Servant," section 87; 20 A. E. C. L. 19.

OPINION

MORGAN, C. J.

Action for an alleged balance of wages. The plaintiff was employed by the defendants as bartender in East Grand Forks, Minn., and worked as such from April 23 to August 26, 1907, for the agreed wages of $ 25 per week. On August 26th a new contract was entered into, under which defendants were to pay the plaintiff $ 20 per week, and, if he worked one year and kept sober, he was to receive $ 5 per week in addition. According to the record, there is no substantial controversy as to the terms of the contract. A careful reading of the plaintiff's evidence clearly shows the above to have been the substance of the contract. In respect to this contract, one of the defendants testifies as follows: "At that time we made a new arrangement with him to pay him $ 20 a week salary, and, if he remained sober in our employ one year, we agreed to give him $ 250 at the end of the year. I cut him from $ 25 to $ 20 per week in order to keep him sober." In reference to the contract, the plaintiff testifies as follows: "At that time Mr. Oeschger told me he wanted to put me back to work, and he told me he would pay me the same wages he had been paying me. That was $ 25. He says, 'We will pay you $ 20 every week,' and at the end of the year they would pay me this holdback, and I told them this was satisfactory to me. That is, at the end of the year, if I stayed one year, I was to get an amount equal to $ 5 per week through the year, and if I kept sober." The plaintiff worked to the satisfaction of the defendants under the new contract from its date to March 30, 1908. On that day the plaintiff refused to work for an hour after his quitting hour that day at the request of one of the defendants. On the next morning the defendants discharged him, and this action was brought to recover the sum of $ 163.95 as the balance claimed to be due on the new contract. The action is brought to recover the $ 5 per week, and for certain extra time that plaintiff worked. The answer is a general denial and an allegation of payment in full. The trial court submitted the question of payment as to one item to the jury under proper instructions, and they found for the defendants. Plaintiff appeals, and assigns five errors as grounds for a reversal of the judgment. We will notice the controlling assignments.

Some of them are based on the action of the court in reference to additional compensation for working outside or in addition to the regular hours. There was no showing whatever that the contract provided for pay for such extra work, if it may be called extra work, in view of the character of the employment, and that the working hours were not regular. In the absence of such showing, we deem it well settled as a proposition of law that no extra compensation is allowable. There was no error, therefore, in refusing to submit the question of compensation for working on some days more than the regular time during which the plaintiff was generally asked to work.

It is claimed that the plaintiff was discharged without cause, and is therefore entitled to pay for the $ 5 per week during each week from August 26th. The facts in reference to the discharge are not in dispute. The trial court held from such undisputed evidence that the discharge was for cause. We affirm that conclusion after a careful examination of the evidence. One of the defendants requested the plaintiff to remain at work on March 30th while said defendant went to supper, which would be about an hour's extra time. The plaintiff refused to do so. No fixed hours of work for each day, nor the hours during which the plaintiff should work during the day were specified in the contract. There were at times three bartenders, and at others two, and the hours during which each should work were fixed by the defendants, and these varied at times. During a part of the time the hours during which the plaintiff should work were fixed, and were at times varied at the request of the defendant. March 30th, when this request was made of the plaintiff, was an election day in said city, and plaintiff had only been on duty from 9 a. m. to 5 p. m., excepting an absence for dinner. During his employment plaintiff had occasionally worked 12 hours, and on several occasions had worked more than the allotted hours at the request of the defendants. Nothing had ever been said by the plaintiff or defendants as to special compensation for service during those additional hours. In view of the nature of the business and the fact that the contract did not provide how many hours should be considered a day's work, and no other fact appearing from which it may be reasonably deduced that a certain number of hours should be deemed a day's work, or that the plaintiff could not be called upon to work longer hours, there is no foundation for the claim that the discharge was without cause. On this day plaintiff had only worked seven and a half hours, or at the most, eight hours. We deem the refusal to comply with the defendant's request an unreasonable one, and it justified the defendants in discharging the plaintiff. As to whether the discharge was justified, the evidence is undisputed. It is therefore a question of law whether the discharge was without cause. There was no question of fact in respect to the cause of the discharge. It was therefore not error to take that question away from the jury. We think it would have been error to submit it to the jury.

Considerable is said in the briefs as to whether the contract in question is an entire one or severable. In view of the fact that we find that the plaintiff refused to perform the contract with out just cause, it is immaterial as to the nature of the contract. If the plaintiff had been discharged without cause a different question would have been presented. We think it clear, however, that this was not a contract for a year at $ 20 per week. It was a contract for $ 20 per week, and, if the plaintiff worked a year, he would be entitled to an additional $ 5 per week if he...