McMurray v. Boyd

• Decision Date: 24 February 1894
• Citation: 25 S.W. 505,58 Ark. 504
• Parties: MCMURRAY v. BOYD
• Court: Arkansas Supreme Court

25 S.W. 505

58 Ark. 504

MCMURRAY v. BOYD

Supreme Court of Arkansas

February 24, 1894

Appeal from Sebastian Circuit Court, Fort Smith District, EDGAR E BRYANT, Judge.

Judgment reversed and cause remanded.

Sandels & Hill for appellants.

1. The court erred in not giving judgment on the special verdict. The two verdicts being inconsistent, the special verdict controls, and displaces the general verdict. 40 Ark. 327.

2. Appellants were clearly entitled to amend their answer. 42 Ark. 57; Ib. 503.

3. The mere fact of retaining Boyd after his incompetency was discovered does not estop appellants from discharging him. The question whether the breach was waived or not should have been left to the jury. 3 So. Rep. 893; 17 P. 292; 7 F. 642; Wood on Master and Servant, (2d ed.) sec. 123; 33 N.Y.S. Ct 195; 63 Ga. 755; 64 Ga. 737; 3 Rich.(S. C.) 161; 21 S.W. 430; Wood, Mast. and Serv. pp. 168-170, and sec. 121.

T. P Winchester for appellee.

1. The general verdict is entirely consistent with the special findings under the instructions of the court.

2. It was within the court's discretion to allow the amendment asked.

3. There was no error in the court's instructions. What is a waiver, is a question of law, and the court left it to the jury to find whether the necessary facts existed. Wood, Master and Servant, sec. 121; 3 So. Rep. 893.

OPINION

MANSFIELD, J.

The appellants employed the appellee, Boyd, to serve as their book-keeper for the period of one year at a salary of $ 50 per month. They discharged him at the end of four months, and, after the term of service contracted for had expired, he brought this action to recover the amount of his salary for the eight months following the date of his dismissal. The answer to the complaint justified his discharge on the ground that he kept the books in a careless, unskillful and incompetent manner; and this defense was supported on the trial by the testimony of several witnesses. Evidence which tended to show that the plaintiff was rude and discourteous to the defendant's customers, and that his conduct in that respect injured their business, was also given to the jury without objection; and when all the evidence had been concluded, they asked leave to amend the answer so as to set up, as an additional defense, the facts just mentioned--their counsel stating that such defense was unknown to them before it was disclosed by the evidence. But the court refused to permit the amendment, and confined its charge to the facts originally relied upon.

If the plaintiff so demeaned himself towards the customers of the defendants as to injure their business, this was a sufficient reason for his discharge; and whether it was, or was not, in fact, one of the grounds on which the defendants acted in dismissing him, they had the right to avail themselves of it as a matter of defense to his action. Wood's Master and Servant, pp. 166, 167, 210, 211, 232. And as the proposed amendment was based on evidence not objected to, and there is nothing to indicate that the plaintiff would have been surprised, or his cause otherwise unjustly affected by it, we think the court should have allowed it. Mansf. Dig. secs. 5075, 5080; Burke v. Snell, 42 Ark. 57.

The plaintiff entered the service of defendants about the first of September, 1889, and was discharged about the first of January, 1890. The busy season of the defendant's trade opened, it seems, the middle of November; and Reynolds, one of the defendants, testified that he was pleased with the plaintiff's work up to the latter date, and then discovered he was incompetent. Reynolds also states that he complained to McMurray of the plaintiff's incompetency, and that, during the month of December, McMurray began to look for another bookkeeper; and it was shown that, soon after the dismissal of the plaintiff, a person was employed to take his place at a salary of seventy-five dollars per month. McMur-ray, who acted for his firm both in employing and dismissing the plaintiff, testified that members of the firm complained to him of the plaintiff's incompetency and offensive manner towards customers, and that he discharged him on these grounds, but did not at any time inform him of the complaints made. McMurray admitted that, two months after the plaintiff's work began, he expressed his satisfaction with it, and also admitted that he knew the plaintiff was incompetent a month before he was discharged. He stated, however, that his reason for delaying the dismissal was that it would have injured his business if it had occurred during the busy season, when, to use his own language, "all good bookkeepers had places."

As applicable to this testimony, and to other evidence Bearing on the question whether the defendants had waived their right to discharge the plaintiff for the cause alleged in the answer, the following instruction was given to the jury, the same being the second paragraph of the court's charge "If you find that the defendants, during the busy season, found out that the plaintiff was not keeping the books in the manner contemplated by the employment, but said nothing to the plaintiff about it, and did not rescind the contract after finding out such facts, but retained and accepted plaintiff's services, such as they were, under the contract, without any objection in any way made thereto, until after the busy season was over and they could dispense with his services, and then discharged him, then, and in such case, the defendants are estopped to allege the manner of keeping the books as grounds of discharge; for, after defendants had...