Old Dominion Copper Mining & Smelting Co. v. Andrews

• Decision Date: 15 March 1899
• Docket Number: Civil 650
• Parties: OLD DOMINION COPPER MINING AND SMELTING COMPANY, Defendant and Plaintiff in Error, v. ALEXANDER ANDREWS, Plaintiff and Defendant in Error
• Court: Arizona Supreme Court

56 P. 969

6 Ariz. 205

OLD DOMINION COPPER MINING AND SMELTING COMPANY, Defendant and Plaintiff in Error, v. ALEXANDER ANDREWS, Plaintiff and Defendant in Error

Civil No. 650

Supreme Court of Arizona

March 15, 1899

WRIT OF ERROR from the District Court of the Second Judicial District in and for the County of Gila. F. M. Doan, Judge. Affirmed.

The facts are stated in the opinion.

E. J Edwards, for Plaintiff in Error.

Plaintiff in error contends that the hiring was a monthly hiring, and as the defendant in error received payment for the entire month of July, he had no cause of action against it. Saxonia Mining and Reduction Co. v. Cook, 7 Colo 569, 4 P. 1111.

The term of service not being fixed in the contract, the servant is presumed to have been hired for such a length of time as the parties adopt for the estimation of wages. A hiring at a yearly rate is presumed to be for a year; a hiring for a monthly rate is presumed to be for a month; a hiring at a daily rate, for a day. Patterson v. Suffolk Mfg Co., 106 Mass. 56; Evans v. St. Louis, 24 Mo.App. 114; Prentiss v. Ledyard, 28 Wis. 131; Thomas v. Hatch, 53 Wis. 296, 10 N.W. 393; Beach v Mullin, 34 N.J.L. 343.

If the term is indefinite, as where the hiring is at a certain sum per month, for a term not exceeding five years, it is a monthly hiring. Peacock v. Cummings, 46 Pa. St. 434; Whitcomb v. Gilman, 35 Vt. 297; Evans v. Bennett, 8 Wis. 404.

The master has the right to discharge his servant for incompetency, no matter what the terms of the contract may be. The plaintiff testified that the agent of the defendant said that he discharged him for incompetency. The agent of the defendant testified that he discharged him for neglect of duty and incompetency.

The servant must not only possess necessary skill, but he is bound to use and exercise the same with reasonable care and diligence, and the only person who has the right to pass on that question is the employer. Stoddard v. Treadwell, 26 Cal. 294; Parker v. Platt, 74 Ill. 431.

Payment of salary due at time of discharge is a bar to further recovery. 3 Wait on Actions and Defenses, 600; Hartman v. Rogers, 69 Cal. 643, 11 P. 581.

George J. Stoneman, and J. S. Sniffen, for Defendant in Error.

OPINION

DAVIS, J.

-- On the eleventh day of August, 1897, Alexander Andrews brought an action in the district court of Gila County against the Old Dominion Copper Mining and Smelting Company to recover damages for his alleged wrongful discharge from the service of the company. After alleging the residence of the parties and the corporate character of the defendant, the complaint contained the following averments: "That on or about the 5th day of November, 1896, plaintiff and defendant entered into a contract under and by virtue of which it was mutually agreed between the parties thereto that plaintiff was to enter the employ of defendant in the capacity of master mechanic at the mines owned and operated by defendant in Gila County, territory of Arizona, at a specified salary, in said contract stated, of $200 per month, and that it was further in said contract stated and mutually agreed upon by the parties thereto that three months' notice should be given and required, unless waived by mutual consent, in the event that it should be desired by either party thereto to terminate the employment of plaintiff by defendant; that plaintiff, wholly relying upon the terms of said contract, in furtherance of the acceptance by him of the same did on or about the lst day of December, 1896, enter the employment of the defendant in the capacity of master mechanic, as aforesaid, at a monthly salary of $200, and ever since said last above-mentioned date, up to and including the 26th day of July, 1897, continued in defendant's employ in the manner and under the terms and conditions as hereinbefore in this complaint stated. And plaintiff further states that ever since the 26th day of July, 1897, up to and including the date of filing of this complaint, he has been ready and willing to continue in the employ of defendant, as hereinbefore stated, subject only to the three months' notice to be given and required as in said contract set forth. Plaintiff further states that on the 26th day of July, 1897, defendant, disregarding the terms of said contract, wherein three months' notice to quit should be given by defendant in case of a desire on its part to terminate said contract, and without any notice to plaintiff, discharged plaintiff from its employ, and refused, and still does refuse, to continue plaintiff in its employ, or to pay to him an equivalent in money of his salary of $200 per month for three months; all of said acts on the part of defendant being without the fault, and against the wishes and consent, of plaintiff, and in violation of the terms of said contract. Plaintiff further states that on the 28th day of July, 1897, he notified defendant, through its agent, S. A. Parnall, that he was ready and willing to continue in the employ of defendant, but that defendant refused to permit plaintiff to comply with the terms of said contract, and still does refuse so to do, which refusal on the part of defendant is the occasion of a direct loss and damage to plaintiff in the sum of $600, under the terms of said contract."

The amended answer of the defendant admitted its corporate character, and the residence of the parties, but denied generally all the other allegations of the complaint. It averred an employment of the plaintiff, which was to continue for a period not exceeding one year, and be conditioned upon competent and satisfactory service; alleged plaintiff's incompetency and neglect of duty, and that his discharge was based upon these grounds. These special matters of defense were traversed by a reply, although that was an unnecessary pleading, under our practice. The case was tried on December 2, 1897, without the intervention of a jury, and the court below made the following findings: 1. That on or about the date named in the plaintiff's complaint the plaintiff and defendant made a written contract, whereby the defendant was to pay the plaintiff the sum of two hundred dollars per month, as master mechanic, to perform work and services in and about the defendant's business; 2. That the said contract contained an agreement to give and require notice, if needed, and that, in case of an emergency, the notice could be waived by mutual consent; 3. That on the twenty-sixth day of July, 1897, the plaintiff was discharged by the defendant, without any previous notice such as was provided for in said contract; 4. That during the three months next ensuing after...