Pyrtle v. International Shoe Co.

Decision Date11 January 1927
Docket NumberNo. 19568.,19568.
Citation291 S.W. 172
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by Charles E. Pyrtle against the International Shoe Company, begun in justice court. Judgment for plaintiff by default, and defendant appealed to the circuit court. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

See, also, 249 S. W. 432.

Virgil Rule and Henry H. Furth, both of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.


This is an action to recover the sum of $68.07, with interest. It is alleged that this amount is clue plaintiff from defendant as a bonus on his wages under a special contract of employment for the period from April 11, 1918, to November 30, 1918. This suit was brought before a justice of the peace, where there was a judgment against defendant by default. On appeal to the circuit court of the city of St. Louis there was a trial before the court and jury, resulting in a verdict and judgment for plaintiff in the sum of $95, the amount demanded, with interest. Defendant appeals.

The sole assignment of error challenges the admission of the testimony of plaintiff's witnesses Plunkett and Herring. To determine this question, a brief history of the whole case becomes pertinent. Plaintiff's statement in the justice court discloses that plaintiff's claim is based upon an express promise on the part of defendant made at the time of plaintiff's employment. This promise is to the effect that defendant agreed to pay plaintiff a bonus of 10 per cent. of his wages. No other pleadings were filed.

Plaintiff testified that he entered the services of defendant as an electrician; that he was promised and was paid 30 cents an hour and a 10 per cent. bonus while he was working at the factory at Thirteenth and Mullanphy streets in the city of St. Louis; that after working for some time at this plant, he asked to be transferred to another plant where the work would he somewhat different. Plaintiff said he took up the matter of transfer with one Theo. Herring, who seems to have been the head engineer for defendant, and who had authority to employ men. Plaintiff testified that Herring told him that his wages at the new plant would be $90 a month and 10 per cent. of his wages as a bonus; that as the result of such agreement he went to work at this plant and worked there from April 12, 1918, until late November, when he was discharged. Plaintiff testified that his wages for that period amounted to $687, and that therefore the bonus was $68.70; that he made demand for the bonus, which was refused.

To further support his cause of action, plaintiff introduced the two witnesses about whose testimony this controversy arises. James W. Plunkett testified that he also was an electrician employed by defendant during the time plaintiff worked there, and that he received a 10 per cent. bonus on his wages during that time. This was stoutly objected to by defendant, and the objection was overruled and the exception duly saved, this objection being that this testimony related to a distinct and independent matter that transpired between the defendant and a stranger, with which the plaintiff was in no way connected—in other words, that such matter related to transactions inter alios, and that the testimony therefore was not relevant for any purposes in the case. Witness F. B. Herring testified that he was an employee as a salesman for defendant, and that he was promised a bonus "of about 10 per cent." of his wages, but that he had never been paid same. This was similarly objected to for the same reason.

For defendant, Fred Hume testified that he was manager of the power department of the defendant company and had originally employed plaintiff and subsequently authorized Theodore Herring to transfer plaintiff from one plant to the other, and that he knew that nothing had been said between him and plaintiff about a bonus.

Witness Theodore Herring, who directly made the transfer of plaintiff to the second plant, testified that when the transfer was made nothing was said, either by plaintiff or the witness, about a bonus, that he did not promise plaintiff any bonus, and that the first time the plaintiff ever said anything to him about the bonus was after his discharge.

George T. McClure, manager of the Roberts Johnson & Rand Shoe Company branch, which was the branch to which plaintiff was transferred, testified that plaintiff never said anything to him about a bonus until he was discharged; that the company did some times make an award of merit to certain employees, but that no agreement was made by him with plaintiff that such an award should be made.

The question, then, directly addressed to us is whether the admission of the testimony of Plunkett and Herring that they had received, or were promised, a bonus for the same period as that covered by plaintiff's services from the defendant was admissible, and, if not admissible, whether...

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    • United States
    • Missouri Supreme Court
    • September 13, 1929
    ...(2 Ed.) sec. 1573, p. 2876, and Sec. 1570, p. 2872; Starosky v. Publishing Co., 235 Mo. 67; Bates v. Forcht, 89 Mo. 121: Pyrtle v. Shoe Co., 291 S.W. 172; Turner v. King, 224 S.W. 91; Hefernan v. Neumond, 198 Mo. App. 667; Paramor v. Lindsey, 63 Mo. 63; Hoydt v. Stock Yards Co., 188 S.W. (M......
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    ...the hope of getting ice cream, nor was she permitted to come by defendants in order that she might sample its good quality. Pyrtle v. Int. Shoe Co., 291 S.W. 172. (p) There a fatal variance between the pleading and the proof. Gandy v. Ry. Co., 44 S.W.2d 634; Kitchen v. Schlueter Mfg. Co., 3......
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    ...(2 Ed.) sec. 1573, p. 2876, and Sec. 1570, p. 2872; Starosky v. Publishing Co., 235 Mo. 67; Bates v. Forcht, 89 Mo. 121; Pyrtle v. Shoe Co., 291 S.W. 172; Turner v. King, 224 S.W. 91; Hefernan Neumond, 198 Mo.App. 667; Paramor v. Lindsey, 63 Mo. 63; Hoydt v. Stock Yards Co., 188 S.W. 106; S......
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