Ross v. Grand Pants Company
| Decision Date | 07 April 1913 |
| Citation | 156 S.W. 92,170 Mo.App. 291 |
| Parties | MYRON E. ROSS, Respondent, v. GRAND PANTS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jas. E. Goodrich, Judge.
Judgment affirmed.
G. B Silverman for appellant.
Joseph P. Fontron for respondent.
This in an action by an employee to recover damages for a wrongful discharge. Plaintiff was employed by defendant to act as the general manager of its selling department in the tailoring business. The employment was for a year beginning October 7 1907, and at a salary of forty dollars per week to be paid weekly during the whole of said time. On the 5th day of December, 1907, plaintiff was discharged without his consent. The suit was instituted December 24, 1909, and the trial had July 2, 1908, three months and five days before the expiration of the employment term. All the foregoing facts are admitted. The controversy at the trial was whether or not there was just cause for the discharge. The defendant claimed that the plaintiff was discharged because he was rude discourteous and insolent to defendant's president, as well as to the other employees of defendant and to customers; because plaintiff disturbed the peace and quiet of said customers; and because he had attempted to disorganize defendant's business and its systematic working, and had tried to induce defendant's employees to quit their positions. Plaintiff denied this, claiming that his discharge was without just cause or excuse.
The issue thus raised was submitted to the jury resulting in a finding for plaintiff with a verdict against defendant for $ 810, and judgment thereon was duly rendered. Unless reversible error was committed in the trial it is our duty to affirm this judgment, since it is not within our province to weigh the evidence or to pass on the facts.
The appeal was taken to the Supreme Court on the ground that a constitutional question relating to trial by jury was involved. That tribunal, after considering the case, held that no such question was involved and transferred the case to this court.
Defendant alleges error because the trial court admitted, over defendant's objection, the testimony of two of plaintiff's witnesses in rebuttal who testified to plaintiff's general reputation for morality and truthfulness.
In civil cases the character of the parties is not relevant, nor is testimony concerning it admissible, unless character is in issue by the nature of the proceeding, or unless it is first brought in issue by an attack thereon from the other side. On cross-examination the plaintiff had been asked if he had not been convicted and fined $ 100 in the Kansas City Police Court for disturbing the peace. He admitted that he had. In addition to this admission, the defendant, in putting in its testimony, offered in evidence the record of said police court showing such conviction. This opened the door for plaintiff to introduce evidence concerning his general reputation. [2 Wig. on Ev., sec. 1106; Jones on Ev., sec. 867; Walker v. Insurance Company, 62 Mo.App. 209; Gertz v. Railroad, Co., 137 Mass. 77; Paine v. Tilden, 20 Vt. 554; Isler v. Dewey, 71 Cal. 14.] Hence the admission of such testimony was not error.
The next assignment is that the court erred in giving plaintiff's instruction No. 3 which told the jury that if plaintiff was rude, discourteous and impolite to defendant's president, yet if he had reasonable cause for so being, such behavior toward the president would not justify plaintiff's discharge. Complaint is made that this rule does not apply in a case of this kind. In other words defendant appears to contend that no matter what the master may have done to provoke his servant to rude and discourteous behavior, if the servant gave way to it, he thereby furnished the master good reason for discharging him. Stated differently, and in its last analysis this means, that although the master may goad the servant into desperation, yet if the servant does not meekly submit, he thereby forfeits all right to retain his place under his contract. This would permit a master, who was desirous of breaking a contract with his servant, to so treat the servant as to drive or compel him to give the master the right to discharge him. The instruction is not erroneous on the ground just stated. The next objection to the instruction is that the words "reasonable cause" are not defined. But defendant asked and was given an instruction on the same point which used the words "good cause" without definition, and no instruction defining the words "reasonable cause" was asked by defendant. It has been held that a failure to define "reasonable care and diligence" is not reversible error where no instruction embodying such a definition has been asked. [Johnson v. Missouri Pacific Railway Co., 96 Mo. 340, 9 S.W. 790.] Where an instruction contains a word or a phrase which a party wishes to have defined, such party should request a definition of that word or phrase. [Crapson v. Wallace, 81 Mo.App. 680, l. c. 684.] Another complaint against this instruction is, that it tells the jury that if plaintiff was rude, discourteous and impolite to the president of the company, this justified the defendant company in discharging him for any rudeness, etc., no matter to whom, when the answer alleges and the evidence shows that rudeness to customers and others was also relied on as justification for the discharge. The instruction, however, does not apply to any rudeness other than the rudeness to the president. The plaintiff's evidence tended to show that if there was any rudeness to customers it was at the command and direction of the president, who was practically the owner of all the stock of the defendant company and its sole active administrative officer present in the store at the time of such alleged rudeness. The instruction does not apply to any rudeness to customers but only to rudeness alleged by defendant to have been displayed to the president.
The final assignment of error is in regard to the measure of damages. The court's instruction on this point was as follows:
"The court...
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