Nelson v. Centennial Cas. Co., 17236

• Decision Date: 26 July 1954
• Docket Number: No. 17236,17236
• Citation: 130 Colo. 66,273 P.2d 121
• Parties: NELSON v. CENTENNIAL CAS. CO.
• Court: Colorado Supreme Court

Page 121

273 P.2d 121

130 Colo. 66

NELSON v. CENTENNIAL CAS. CO.

No. 17236.

Supreme Court of Colorado, En Banc.

July 26, 1954.

Frank L. Hays, and Richard D. Hall, Denver, for plaintiff in error.

John F. Mueller, Denver, for defendant in error.

CLARK, Justice.

Nelson, as plaintiff, instituted an action against defendant corporation on a written contract of employment, which, defendant acknowledged, had been properly executed and which was admitted in evidence without objection.

By said contract defendant agreed to employ Nelson 'as Executive Vice-President of its casualty insurance business' beginning January 1, 1951 and continuing to and including December 31, 1953, 'subject to the conditions herein contained.' The stipulated compensation was $500 per month for the first three months; $525 per month for the next three months; $550 per month for the next three; $575 for the last three months of 1951; $700 per month for the year of 1952; $1,000 per month for the year 1953; together with a bonus provision, the proceeds of which were to be applied to the purchase of capital stock in the company. Other covenants intended as obligatory upon the part of the company are not here involved.

Paragraph 3 of the contract contains the only covenants thereof to be performed by plaintiff. Thereby he agreed to (1) 'Devote his full time and skills exclusively in the services of the employer;' (2) 'carry on the business of the employer in a diligent, resourceful and capable manner;' and (3) (not here involved) not indulge in drinking during office hours or so as to affect his work.

Paragraph 8 of the contract provides that:

'Failure upon the part of either party to this agreement to perform any or all of the terms or conditions of this agreement, shall be grounds for immediate cancellation of such agreement by the party not breaching such agreement.'

By letter on the company's letterhead, signed by its president, under date of April 27, 1951, and addressed to Nelson, notice of termination of the contract was given, the first and only pertinent paragraph thereof being as follows:

'For many reasons which I have explained to you, as well as others that have come to me recently, I do not believe that you have carried on the business of Centennial Casualty in a diligent and resourceful manner, as required by your contract of employment. I therefore regretfully inform you that your services are terminated effective as of May 1, 1951.'

With this letter were enclosed separate checks for plaintiff's wages for the month of April, and a full month's pay for the month of May, less deductions for taxes.

Nelson declined to accept the president's letter as notice of dismissal, as not being authorized by the board of directors, and returned the checks to the office manager. April 30, 1951, the board of directors by letter ratified and confirmed the letter of the president of April 27.

In November, 1951, plaintiff instituted an action in the district court for damages for alleged breach of contract. The matter came regularly on for trial before a jury on June 4, 1953, plaintiff concluding the introduction of evidence in his behalf on the following day; whereupon counsel then representing defendant moved for a judgment of dismissal stating several grounds therefor, among which was, 'that the plaintiff by his own testimony shows he did not perform the contract in such manner as was called for by the contract itself,' and that, while he had pleaded performance in his complaint, 'his testimony shows that he had not so performed.' The trial court, after hearing arguments on the motion, continued said cause until June 9th, when he heard further arguments, and at the conclusion thereof granted said motion and entered judgment of dismissal of plaintiff's complaint.

On behalf of plaintiff, appearing here as plaintiff in error, his counsel rely for reversal of the judgment upon three specifications of alleged error, the first two of which go to the same substance: (1) That the motion for dismissal was not proper, there being evidence offered by plaintiff to prove each material allegation of his complaint; (2) that there is in evidence proof of each material allegation of the complaint; and (3) that the grounds alleged in the defendant's motion for dismissal were not proven as a matter of law.

Counsel for plaintiff rightly contend that in order to sustain a defendant's motion for dismissal, or nonsuit, at the close of plaintiff's case, the court must view the evidence in the light most favorable to the plaintiff, and that where there is substantial evidence tending to establish a cause of action, it is error to direct a verdict in favor of defendant; that it is not for the court to judge as to the weight of the evidence nor the credibility of witnesses. These are well-recognized principles, and the books abound with numerous decisions in support thereof. These principles, however, most usually apply, in instances where there is some conflict between the testimony of two or more witnesses, and in such cases as where the minds of reasonable men might draw different conclusions from the evidence, or by inference properly deducible therefrom....