Paine v. Hill

• Decision Date: 22 December 1893
• Citation: 35 P. 136,7 Wash. 437
• Court: Washington Supreme Court
• Parties: PAINE v. HILL ET AL. [1]

35 P. 136

7 Wash. 437

PAINE v. HILL ET AL. ^[1]

Supreme Court of Washington

December 22, 1893

Appeal from superior court, King county; T. J. Humes, Judge.

Action by John A. Paine against Joseph B. Hill and the Haley Grocery Company for wages, under a contract of employment. Judgment for plaintiff. The company appeals. Affirmed.

Bausman, Kelleher & Emory, for appellant.

A. W Hastie, for respondent.

DUNBAR C.J.

The first 16 pages of appellant's brief are devoted to a discussion of matters that are not at issue in this case. There is no question at issue as to the right of Hill, the president and manager of the company, to employ the respondent. Hill himself testifies that he employed him, and that he had a right to employ him. This is also conceded by Haley, the vice president of the company, who answered to the question, "What do you know, if anything, about Hill's right or privilege to select a secretary and treasurer?" by saying, "That was one of the considerations, when he went in;" and to the question "What did he say to you about that, if anything?" by answering, "Well, that is something I did not converse with him much about, because he had that privilege. I didn't believe in interfering with his privileges." In the face of the testimony of the parties in interest, and the further fact that the president's right to employ the secretary was not questioned by the defendants at the trial, or raised in the pleadings, it is scarcely worth while to notice this proposition further. Neither is there any question at issue in regard to his actual employment, for Hill, the president of the company testified that he did employ him; that he was to pay him the amount per month alleged by plaintiff in his complaint. So also, with the incumbering of the record with the by-laws of the company, showing the duties of the secretary. The president himself testifies that he employed Paine with the understanding that there was to be an additional secretary, and that it was the custom of the company to employ two secretaries, and that the company never had been two hours without this additional help, and that the business was so large that it would be impossible to transact it without the additional secretary; and there is no dispute anywhere in the record that Paine was employed with this special understanding.

Stripped of all verbiage and immaterial discussion, then, the sole question at issue was, did Paine, the respondent, quit the employment of the company of his own free will, or was he discharged by authority of the company? This was a question raised by the answer of the defendant company, together with the other affirmative defense that the plaintiff had other employment, and was therefore not damaged. On this latter proposition, however, all the testimony on the subject was the testimony of the plaintiff himself, which no doubt the jury took into consideration, in agreeing upon their verdict. So that the only question really at issue between the parties was the question of discharge, and on this question it seems to us that there is a plain conflict of testimony. It is claimed that the testimony of the plaintiff, taken as a whole, shows conclusively that he was not discharged, and that he left of his own free will. But we think this claim is not borne out by the testimony. Some difficulty had arisen between Haley, the vice president of the company, and Paine the respondent, in regard to an extra bookkeeper. Haley had insisted that the extra bookkeeper must be discharged. Following his discussion with Haley, Paine testifies as follows: "Well, I didn't see Mr. Hill again until Saturday. That was on Friday,-the last talk with Mr. Haley,-and Saturday, at shortly after 1...