Park Bros. & Co. v. Bushnell, 69.

• Decision Date: 12 March 1894
• Docket Number: 69.
• Citation: 60 F. 583
• Parties: PARK BROS. & CO., Limited, v. BUSHNELL.
• Court: U.S. Court of Appeals — Second Circuit

60 F. 583

PARK BROS. & CO., Limited, v. BUSHNELL.

No. 69.

United States Court of Appeals, Second Circuit.

March 12, 1894

Joseph H. Choate, for plaintiff in error.

John E Parsons, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge.

This is an action at law, which was originally brought in the supreme court of the state of New York, by Robert G. Bushnell against Park Bros. & Co., Limited, and upon the petition of the defendant, was removed to the circuit court for the southern district of New York. The action was to recover the unpaid contract price which accrued before and after the plaintiff's discharge from the service of the defendant for the period of time during which the defendant had agreed to employ him. The verdict of the jury was in favor of the plaintiff for $71,587.33 and interest. A bill of exceptions having been settled and allowed, and judgment having been entered, the defendant brought the cause to this court by writ of error.

The defendant is a large manufacturer of steel. The plaintiff was an exceedingly competent and successful salesman, and superintendent of agencies for the sales of steel. He had been in business with the firm which subsequently became the defendant corporation from December, 1861, to December, 1879 when he became a member of another firm, and so continued until September, 1884. On September 30, 1884, the defendant by written agreement, employed his whole time for a period of six years, beginning August 1, 1884, at a salary of $8,000 per annum, payable monthly, and, in addition, a commission of 4 per cent. on the annual net profits of the entire business of the defendant, payable on demand, after the result of the year should be ascertained. His business was to sell the plaintiff's steel, and to be its superintendent of agencies in the eastern district, which included the territory east of the Alleghany mountains and north of Washington, but only that part of the state of New York east of Syracuse. On December 28, 1887, the defendant notified Bushnell that on account of his ill health the contract would cease after January 1, 1888. He remonstrated, and on January 20, 1888, the defendant proposed a reduction of the commission to 2 per cent. of the net profits. He declined, and on February 3, 1888, the defendant agreed to go on with the old contract. About this time--perhaps a little before--it relieved him of the Philadelphia business, and placed him at the head of the business of the New York house. On November 19, 1888, the defendant notified him that the contract must be terminated for violation of orders, alleged to be explicit and peremptory, in regard to a sale of 2,000 tons of steel to Shuler & Co. This transaction will hereafter be more particularly stated. Correspondence ensued, and on December 1, 1888, he was dismissed, and in September, 1890, he brought suit against the defendant, in which he claimed the balance of the agreed compensation from December 12, 1888, to the end of the contract period. The defendant, by its counsel, pleaded that the discharge was for cause, and alleged as causes the plaintiff's inattention to business, inefficiency, repeated disobedience of orders, among which it alleged his failure to obey the order of the defendant to make daily reports of its business in his charge to the home office in Pittsburgh, and his disobedience of explicit instructions in the matter of the Shuler sale.

At the close of the trial, which lasted 11 days, and in which divers important and unimportant issues were presented, the defendant made 74 requests to charge. At the close of the charge the defendant's counsel took sundry exceptions, and said that, after he had received the charge from the stenographer, he would make them more specific. The plaintiff's counsel acquiesced in this suggestion, but the court made no expression of its views. Thereupon, after the verdict of the jury, and after the stenographer's minutes were written out, the defendant's counsel stated 13 additional specific exceptions. The rule in the federal courts is explicit that all exceptions to the charge of the jury must be definite, and not general, and must be publicly taken before the jury retires. The reason is obvious, and is that, the charge having been made for the instruction of the jury, the judge has the right, upon his attention being called to any misstatement or error in the charge, to explain, modify, or withdraw any portion which he deems vague, erroneous, or liable to mislead. Counsel are not to be permitted, especially after having laid the foundation for exceptions by an inordinate number of written requests, to prevent an opportunity for explanation of the several sentences of a charge, and to postpone explicit exceptions, either for the purposes of a microscopic investigation, or to turn an exception which had neither meaning nor validity into one which is believed to have importance, or to amplify general into particular exceptions to the different sentences of a charge. The practice which was attempted is one which tends to inexactness of counsel at the time of the charge, is a temptation to subsequent controversy, and possibly unfairness of dealing, and should not receive the favor of counsel or court. No exception will be examined in this case which was not taken in conformity with the foregoing customary rules of the federal court.

In this case the alleged disobedience was of two classes,--one of disobedience of general orders in regard to the general conduct of a large and important business, and the other of disobedience of specific orders in regard to a particular sale. One of the defendant's requests was as follows:

'That refusing to obey the reasonable orders of the defendant was a good ground for dismissal from service, for in every contract of hiring there is an implied contract on the part of the servant that he will obey the lawful and reasonable commands of his master.'

It is manifest that the relations of Bushnell to the defendant were not those of a menial or domestic servant to his master. He was the superintendent of a large and important business for a long term, was constantly obliged to be the representative of the defendant in different states, and to attend with promptness, resoluteness, and good judgment to its large pecuniary interests. The judge, in view of these considerations, charged that what would justify the rescission of a contract for employment in the case of a mere workman or clerk might not justify it in the case of a person whose duties were of such a character as those which were intrusted to the plaintiff; and also that----

'Under the contract the plaintiff became the agent or servant of the defendant corporation. It had a right to direct him as to his duties in the conduct of his business, and, so far as those directions were reasonable and lawful, the plaintiff was bound to obey them.'

And further charged as follows: 'Disobedience of the reasonable orders of an employer is good ground for such discharge where such disobedience is material; that is, where serious danger is occasioned to the business of the employer by the conduct of the servant, even where no resulting loss can be shown. But where a contract has been substantially performed as to time, and its most material parts, the employer has no right to dismiss an employe for a mere disobedience of orders of a slight character, which involve no serious consequences or danger to the business, unless such disobedience is perverse or unreasonable.'

This sentence of the charge was duly excepted to. The judge was here referring to general orders relating to the general conduct of business of a character like that of the plaintiff. The defendant's request covered any disobedience of any reasonable orders, and called for an instruction that any such disobedience was a good ground for dismissal. The judge properly qualified the too broad and sweeping statement which the defendant desired, and added to it the just limitations which the character of the service required. It is impossible to state a perfectly definite and exact rule which shall be applicable to all the varied cases of master and servant. A rule which might be perfectly applicable to the precision with which a coachman or gardener should be required to obey the directions of his master or mistress in regard to the details of the service which involved the comfort of the household, might be inapplicable to the case of exact compliance by a manager of a large factory with a general rule which required him to render daily memoranda of his business life for the inspection of the directors. The rule which the judge announced was sufficiently exact, was properly guarded, and is clearly sustained by adequate authority. Turner v Kouwenhoven, 100 N.Y. 115, 2 N.E. 637; Shaver v. Ingham, 58 Mich. 649, 26 N.W. 162. The jury manifestly and properly found under the statement of the law that there was no substantial violation of the defendant's rule which called upon the plaintiff to write daily letters to the home office. $The second charge of disobedience was of a different character. Davis W. Shuler & Sons were large spring manufacturers in Amsterdam, N. Y. In 1887-88 the defendant supplied them entirely with spring steel, and in June, 1887, Mr. Park, the president, wrote to Bushnell he hoped he (Bushnell) could soon arrange something with Shuler; that he (Park) wanted their whole trade; that a portion would be only moderately satisfactory to him. In the autumn of 1888 a new contract was to be made. Verbal negotiations were had between Shuler and Bushnell and between the two and Park in the latter part of October, which resulted in nothing. On November 7th plaintiff telegraphed...