Shaver v. Ingham

• Decision Date: 06 January 1886
• Citation: 58 Mich. 649,26 N.W. 162
• Court: Michigan Supreme Court
• Parties: SHAVER v. INGHAM and others.

26 N.W. 162

58 Mich. 649

SHAVER v. INGHAM and others.

Supreme Court of Michigan

January 6, 1886

Error to Berrien.

A.H Potter and N.A. Hamilton, for plaintiff.

Geo. M Valentine, for defendants and appellants.

CAMPBELL C.J.

Plaintiff sued and recovered damages for his unauthorized discharge as foreman of defendants' fruit package factory, at Benton Harbor. His claim was that, on the first of March, 1884 having been previously employed, a new arrangement was made for one year, at $2.50 a day. Defendants claimed that he was not employed for any fixed period, but was given employment when needed. He continued in the place of foreman until September 11, 1884, when he went to Lawrence to look after the foundation of a house that was being built for his mother; and, just before leaving for that purpose, which was expected to detain him less than a day, he was discharged. There is a conflict of testimony on the facts,--he stating that the discharge was without any cause mentioned, beyond the will of defendants, and defendants claim that he was discharged for going away against their desire.

The two important issues were, therefore--First, the character of his employment, as fixed or optional; and, second, the lawfulness of his discharge.

Upon the first of these issues the plaintiff, in the course of his testimony, fixed the time when the bargain was made by reference to negotiations he had carried on with various other persons; and, among others, one Colby, who had sought to employ him, and whose treaty was defeated by the new arrangement. It was, in substance, that, on one of the latter days of February or first days of March, plaintiff postponed a final answer to Colby until he should come to some definite conclusion whether or not to continue work with defendants, and that, on Monday, the third day of March, after he came to such an arrangement, he gave Colby his final answer, declining to serve him. It was drawn out on cross-examination that plaintiff's mind had been recalled to the time of his contract by remembering negotiations with other parties who wished to employ him, and by the answers he gave them. On redirect examination he was asked: "How are you able to fix the time of this contract with Mr. Leslie as being the first day of March, with reference to Mr. Colby?" This was objected to, and exception taken to overruling the objection. He answered: "By telling Mr. Colby that my time is out,--that my time was out. If I don't make an arrangement with them, I will commence with you. I will let you know on Monday. (This was Saturday.) My time was out yesterday." The court had already ruled that the conversation with Colby concerning the nature of the engagement with defendants, being had in their absence, could not be received. We can see no reason why the fact of a conversation was not proper, or why defendants could be damaged by such a statement. If it was not shown to refer to an agreement for a year, it amounted to nothing, except as a question of dates, and as to that it was competent. When Mr. Colby was placed on the stand he was asked: "What was the conversation the first day of March?" This was objected to, and exception allowed to overruling it. The court held it was admissible to fix the time. Colby's answer to this question, so far as stating what plaintiff said, was that, when Colby asked if he would work for him, plaintiff answered, "My time is out, but I cannot tell you till Monday." There was no error in this. Colby, however, went on, without further inquiry, and mentioned that on Monday or Tuesday plaintiff told him he had hired for a year. This was not responsive to the question, but defendants did not object to it, or ask to strike it out, and no exception is based on it. When Colby was asked by plaintiff's counsel to relate the conversation had on Monday or Tuesday, the court at once refused to allow it; and would, no doubt, have ruled out the volunteered answer, if asked to do so.

Exception was also taken to a further question, whether on Saturday plaintiff gave any reason why he could not tell Colby whether he would accept his offer of employment. The answer given was that he had not yet closed his bargain, but would let him know on Monday or the first of the week. There was nothing in this which could prejudice defendants.

The other errors assigned relate to the refusal to charge as requested concerning defendants' right to dismiss plaintiff. Upon the facts of the discharge plaintiff and Leslie, one of the defendants, are the only direct witnesses, although there is some other testimony as to admissions. According to plaintiff's testimony, Leslie told him that defendants had made up their minds they had got through with him; and, on being asked for reasons, answered: "No words or argument about it." According to Leslie, the plaintiff's desire to go on his errand was known to the defendants, as he told Leslie that morning about it. Leslie says he urged him to stay, saying they could not spare him. "It was a very busy time, and he insisted on going. Had some business at Lawrence, I think, he said, that he must attend to. I went to the other members of the firm, and talked with them." He saw Shaver again afterwards, and says: "I went to Mr. Shaver after that, and asked him if he insisted on going. He said that he did. I told him if he insisted on going, if his business was more important than ours, that he must attend to it at the neglect of ours, that he could go and stay; that he could consider himself discharged under these circumstances, and he could go to the office and get his pay. He asked me some question in regard to it, and I told him I didn't wish to argue the question. That was the decision. I didn't wish to quarrel with him about it all. It is not worth while to quarrel about it. It is the final decision of the case, and I turned and left him." The court below left it for the jury to say whether the plaintiff was discharged without reasonable cause. No exception was taken to the charge as given, but defendants rest their case on the...