Schumaker v. Heinemann

• Decision Date: 12 April 1898
• Citation: 99 Wis. 251,74 N.W. 785
• Parties: SCHUMAKER v. HEINEMANN ET AL.
• Court: Wisconsin Supreme Court

99 Wis. 251

74 N.W. 785

SCHUMAKER

v.HEINEMANN ET AL.

Supreme Court of Wisconsin.

April 12, 1898.

Syllabus by the Judge.

1. Section 2858, Rev. St., entitles a party to an action, to a special verdict on demand therefor at the proper time, but the duty of framing the questions covering the issues made by the pleadings is solely for the court.

2. If the questions submitted to the jury cover all the issues, the refusal to submit questions covering the same issues, or any one of them, in a different form, or refusal to submit questions covering mere elements of such issues, is not error.

3. Where an employer, for breach of duty, terminates a contract of employment with his employé, especially if the employment be one requiring the exercise of judgment and discretion, unless such breach be such as to evince moral turpitude, or manifest injury to the employer's interests, it does not per se constitute a legal justification for the employer's conduct, and the issuable fact therefore, under such circumstances, is not whether there was a breach of duty, but whether there was a breach of duty constituting reasonable ground for terminating the contract of employment.

4. Where a contract of employment has been unjustly terminated, the employé is entitled to compensation for such damages as the employer might reasonably have anticipated would result to his employé by the discharge. If such damage consist of profits lost, and the evidence furnishes reasonable data upon which to compute them, such lost profits are a proper measure of damages and are recoverable.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by George A. Schumaker against George H. Heinemann and others. From a judgment entered on a verdict in favor of plaintiff, defendants appeal. Affirmed.

Action for damages for breach of contract. The complaint sets forth by appropriate allegations that plaintiff was employed by defendants as a traveling salesman for the year 1894, his compensation to be 9 1/2 per cent. for all goods sold by him of certain classes, and 5 per cent. for other goods, he to pay his own expenses; that before the year expired, defendants discharged the plaintiff without any just cause therefor. The damage claimed was the amount plaintiff was prevented from earning under his contract by reason of the discharge. Defendants answered admitting the contract of employment and the discharge, and pleaded in justification that plaintiff was guilty of having injured the business of the defendants by increasing orders given by customers, also by falsely representing to one customer that plaintiff had been ordered not to sell to such customer. The answer also set forth as a counterclaim, damages for profits on goods that might have been sold to the customer, which were lost through the false representations of the plaintiff. The evidence on the part of the plaintiff tended to show that he was damaged to the amount recovered, on the basis of the aggregate percentage on the goods he might have sold had he not been discharged. The evidence in justification of the discharge tended to show that the reason given therefor, at the time it occurred, was that plaintiff had collected two accounts and retained the same instead of remitting to the defendants. There was evidence on the subject of falsification of orders. The evidence to sustain the counterclaim was rejected by the court. There was evidence on the part of plaintiff in rebuttal of that in justification of the discharge. The jury found specially on the controverted issues as follows:

“(1) Plaintiff was not guilty of such misconduct in respect to collecting and retaining collections as to justify his discharge.

(2) Plaintiff was not guilty of such misconduct in dissuading and preventing persons from buying goods of defendants, as to justify his discharge.

(3) Plaintiff was not guilty of such misconduct in falsifying orders as to justify his discharge.

(4) We assess plaintiff's damages by reason of his discharge at $640.”

Exceptions were taken to instructions given to the jury and to refusals to instruct as requested by defendants' counsel, also to refusals to submit questions requested by such counsel, and such motions were made and exceptions taken to rulings thereon as to preserve for review the subjects discussed in the opinion. Judgment was entered on the verdict in favor of the plaintiff, and defendants appealed.Nath. Pereles & Sons, for appellants.

Timlin & Glicksman, for respondent.

MARSHALL, J. (after stating the facts).

Defendants' counsel demanded a special verdict in a form suggested by them, and it is assigned as error that the demand was not complied with. Section 2858, Rev. St., secures to a party desiring a special verdict the right thereto, but the duty of framing the questions is solely for the court. The only legitimate purpose of suggestions from counsel, as to what particular questions shall be submitted, is to direct the attention of the court to the issuable facts upon which the controversy depends. If the verdict does not cover all the issues essential to a determination of the case, no judgment can properly be rendered upon it, but if it does cover such issues, no error can be successfully assigned because the form for the questions, suggested by counsel, was not adopted, or because further questions were requested and refused.

Complaint is made of the form of the questions...