Miller v. Woolman-Todd Boot & Shoe Co.

• Decision Date: 03 May 1887
• Citation: 26 Mo.App. 57
• Parties: WILLIAM MILLER, Respondent, v. WOOLMAN-TODD BOOT & SHOE COMPANY, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 57

WILLIAM MILLER, Respondent, v. WOOLMAN-TODD BOOT & SHOE COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

SMITH P. GALT, for the appellant: " Burden of proving" is a technical phrase, and, unexplained, would mislead the jury and they may have interpreted it as meaning that if there was any evidence for the plaintiff contra, then the defendant had not fulfilled the requirements of the law in that regard, as stated by the court. " Preponderance of evidence," condemned. Clarke v. Kitchen, 52 Mo 316. " Prima facie, " condemned. Chappel v. Allen, 38 Mo. 222. " Assigned" used instead of " endorsed" may mislead the jury. Bank v. Lonergan's Adm'r, 21 Mo. 50. " Had good cause to discharge." " Good cause" is a lawful cause. The court should have defined the terms, and not permitted the jury to say what is, and what is not, good cause for a master to discharge a servant. " Legitimate purpose," unexplained, condemned. Estes v. Fry, 22 Mo.App. 89. " Malice," undefined, condemned. Morgan v. Durfee, 69 Mo. 480.

HENRY W. BOND, for the respondent: The instructions were unobjectionable. Squire v. Wright, 1 Mo.App. 175. In all cases of hiring for a definite period, and breach of the contract, on the part of the hirer, by the wrongful discharge, the employe has two remedies, i. e., he may sue at once for probable damages sustained by discharge during the unexpired period, or he may wait until the end of the term for which his contract was made, and recover the actual damages sustained by its breach. Ream v Watkins, 27 Mo. 516; Lambert v. Hartshorn, 65 Mo. 551; Booge v. Railroad, 33 Mo. 212; Soursin v. Salorgne, 14 Mo.App. 488; Williams v. Furnace Co., 13 Mo.App. 73, 74.

OPINION

ROMBAUER J.

This is an action, by an employee to recover damages caused to him by a wrongful discharge. The facts, that the plaintiff was employed by the defendant, as a traveling salesman, for the year 1886, and was discharged by it, from such service, without his consent, at the close of April, 1886, are admitted. The only controversy between the parties is, whether or no such discharge is wrongful, and if so, whether the damages, recovered by the plaintiff, are excessive.

The defendant, in its answer, denied that it had wrongfully discharged the plaintiff, and justified the discharge in the following terms: " That the plaintiff, to obtain the contract and service in his petition set forth, represented to the firm of Phillips, Woolman & Todd, and the defendant, that he had theretofore been employed as a traveling salesman for wholesale boot and shoe houses, and that he controlled a large trade therein, and that he had never sold less than fifty thousand dollars worth of goods per annum, and that he could sell said amount for said firm and for the defendant; that, believing said representations to be true, and for said reason, said firm hired the plaintiff, and the defendant employed him, as the plaintiff's petition stated, but the defendant states that said representations were false, and were fraudulently made for the purpose aforesaid; and the defendant further states, that, while the plaintiff was in its employ, contrary to his contract and the defendant's instructions, he went to Indiana, and he failed and refused to call on numerous business men in Illinois, as he was instructed by the defendant to do; and he failed and refused to keep an account of his expenses, while traveling for the defendant, in the manner and as instructed by the defendant to do; and that, on account of said false and fraudulent representations, made as aforesaid by him, and on account of his failure and refusal to obey the defendant's instructions aforesaid, all of which said instructions were proper and reasonable, the plaintiff was, by the defendant, discharged from its service, as was its right and duty to do so."

The reply was a general denial.

The plaintiff was paid in full up to the date of his discharge. He recovered a judgment for twelve hundred dollars, which is shown, by computation, to be the contract price for his services, from the date of his discharge until the close of the year, 1886. The action was instituted May 5, 1886, and the cause was tried November 16, 1886.

The complaints made upon this appeal are: (1) That the court excluded legal evidence offered by the plaintiff. (2) That the court misdirected the jury. (3) That the verdict is against the evidence and weight of evidence.

I. The plaintiff was examined, as a witness in his own behalf. He testified in his examination in chief, that he had been engaged as a salesman for twenty-three years; that he had never stated, to any one, that he had never sold, in any one year, less than fifty thousand dollars worth of goods; that he was requested, by one of the defendant's officers, to keep an expense account, at one time, but, upon his raising objections, the request was withdrawn.

Upon cross-examination of the plaintiff, this question was put to him: " Did you, while you were with Claflin, Allen & Company, during 1885, sell fifty thousand dollars worth of goods?" " Objected to by the plaintiff. Objection sustained, to which ruling of the court, the defendant, then and there, excepted." We see no error in this ruling. When this question was put, there was no evidence before the court that the plaintiff had ever represented to the defendant that he had sold no less than fifty thousand dollars worth of goods in any particular preceding year, as an inducement for his employment, or otherwise. In the absence of such evidence, the question was directed to an immaterial inquiry. The defendant was at liberty to make the plaintiff its own witness on this point, and if the defendant would have given assurances, by an offer to make the testimony relevant, by subsequent proof, that the plaintiff had made such statement, the court probably would have permitted the question to be put, as the order of the proof is, to a great extent, within the discretion of the trial court. In the absence of such offer, the defendant had no right to complain that the question was excluded.

In addition to this, however, it is proper to say that immediately thereafter the witness did state, on his cross-examination: " I did not sell every year that I was employed, fifty thousand dollars worth of goods," thus removing every vestige of a just complaint which could possibly arise from the exclusion of the preceding question.

The plaintiff was also asked, on his direct examination:

" Q. From this day, say the sixteenth of November, up to the thirty-first of December, are you able to state, from your knowledge of the methods of business done by boot and shoe houses, and the time when they make their engagements, or from any other sources that may supply you with information, as to the probability of your getting employment between now and then?

Objected to by the defendant, as incompetent, and immaterial. Objection overruled, to which ruling of the court the defendant then and there excepted.

A. I see no chance, in my experience and efforts, to find any place during this year."

There was no error in this...