Middendorf v. Schreiber

• Decision Date: 01 October 1910
• Citation: 150 Mo. App. 530,131 S.W. 122
• Parties: MIDDENDORF v. SCHREIBER.
• Court: Missouri Court of Appeals

131 S.W. 122

150 Mo. App. 530

MIDDENDORF v. SCHREIBER.

St. Louis Court of Appeals. Missouri.

October 1, 1910.

1. MASTER AND SERVANT (§ 53)—CONTRACT OF EMPLOYMENT — DEGREE OF SKILL REQUIRED.

Provision of a contract of employment of a boy as a jockey that he should perform the services in a good and workmanlike manner was satisfied by his possessing and exercising a reasonable degree of skill, knowledge, and ability in that behalf, to be determined by the manner in which other ordinarily skillful jockeys performed the same service, and did not require him to possess extraordinary skill, or necessarily warrant that he should win races.

2. MASTER AND SERVANT (§ 40)—DISCHARGE — ACTION — EVIDENCE — RULES OF THIRD PERSONS.

The rules of race courses, prescribing the qualifications, duties, and conduct of jockeys in the handling and riding of horses, and the powers and duties of the officials of such courses relative to precluding jockeys from riding, are not admissible in an action for discharge of a jockey, there being no evidence that such officials sought to preclude him from riding, or declared him incompetent, the purpose of such evidence not being shown, and while the contract of employment required the jockey to abide by the rules and regulations of the employer's stable, there being no suggestion that they were identical or connected with those of such race courses.

3. DAMAGES (§ 228)—EXCESSIVE VERDICT— REMITTITUR.

That a verdict was for more than prayed for is not ground for reversal, the excess having been remitted, as required on motion for new trial, and judgment having been given accordingly.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Mary Middendorf against Bonaventure Schreiber. Judgment for plaintiff. Defendant appeals. Affirmed.

B. L. Matthews, for appellant. Kurt Von Reppert, Christian F. Schneider, and Henry Higginbotham, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of a breach of contract for hire. Plaintiff recovered, and defendant appeals.

Plaintiff is the mother of Leo von Graeffen, a minor, and, his father being deceased, sues on a written contract made by her with defendant whereby she let his services to defendant as a jockey. Defendant is a breeder and owner of race horses, and entered into a written contract with plaintiff whereby he employed her minor son, Leo von Graeffen, as a jockey to exercise and ride race horses for him for a term of three years from December 1, 1904, until December 1, 1907. It appears plaintiff's son Leo had been in defendant's services for about 14 months before the contract was entered into between the parties. During the time plaintiff's son was in defendant's service prior to the date of the contract, his employment consisted in riding and exercising defendant's race horses first in a walk, then in a gallop, etc., to the end of training for the profession of a jockey. By the written contract sued upon, defendant employed plaintiff's son Leo to perform the services of a jockey for him from December 1, 1904, to December 1, 1907, and agreed to pay plaintiff a salary, for the services of her son, of $20 a month for the first year, $50 per month for the second year, and $100 per month for the third year. In addition to the monthly salary thus stipulated, defendant agreed to pay the traveling expenses and board and lodging of plaintiff's son during the three-year period mentioned. It was stipulated therein on the part of plaintiff that said Leo von Graeffen should perform all jockey services in a good and workmanlike manner, and abide by the rules and regulations of the stable of the said B. Schreiber, the said Leo von Graeffen to deport himself in a gentlemanly manner, and to travel to such places as may be designated by B. Schreiber. Plaintiff's son continued in defendant's service for a considerable time, and defendant paid his salary promptly for the first year, and a portion thereof for the second year. From March 1 to October 1, 1906, defendant paid plaintiff $25 per month, or $175 in all, when, in accordance with the contract, he should have paid him $50 per month for those months, or a total of $350. On October 10, 1906, defendant summarily discharged the boy from his service, and refused to furnish him employment thereafter or pay the amount due under the contract for the period between March 1 and October 1, 1906.

In the first count of the petition, plaintiff prays a recovery in the sum of $175 for so much of her son's wages as were...