131 Mo. App. 58 | Mo. Ct. App. | 1908
The suit is to recover damages caused by the wrongful discharge of plaintiff as foreman of defendant’s stave and sawmill, located at Caruthersville, Missouri. Defendant resides in the State of Ohio. In 1904 and 1905, Ezra Blanchard was general superintendent of the mill. Plaintiff, in 1904, resided at Sikeston, Missouri. Plaintiff’s evidence shows that Blanchard knew plaintiff to he an experienced mill foreman and in December, 1904, employed him for a year as foreman of defendant’s mill, agreeing to pay him three dollars per day for his services, to furnish him free house rent, fuel and lights and' also to pay him four dollars per day at the end of the year, if the mill should make ten thousand dollars. Plaintiff entered the service of defendant, as foreman of the mill, under this contract, on December 5, 1904, and continued to serve defendant until May 6, 1905, when he was wrong
The petition alleged that plaintiff was damaged in the sum of $560, in expense incurred in moving from Sikeston to Caruthersville and in loss of wages caused by his wrongful discharge, and in the sum of $142, caused by defendant’s refusal to furnish him free house rent, fuel and lights from May sixth to December 5, 1905; also that plaintiff worked eleven Sundays for which he has not been paid, during the time he was employed ; to his damage in the sum of $33. These allegations of damages were put at issue by the answer.
“The court instructs the jury that if you find and believe from the evidence in this case that the plaintiff was employed by the defendant in the capacity as foreman of the defendant’s saw mill and stave mill at Caruthersville, Missouri, for a period of one year from and after December 5, 1904, to December 5, 1905, at a salary, of three dollars ($3) a day to be paid plaintiff by the defendant, and that defendant was to furnish to plaintiff a dwelling house free of rent, together with fuel and lights during the time of the contract, and that plaintiff entered upon the discharge of his duties under such contract ; and that during the year of the contract of such employment and prior to December 5, 1905, the defendant or his agent discharged the plaintiff or failed to furnish to said plaintiff a dwelling house free of rent together with fuel and lights, then your verdict must be for the plaintiff in whatever sum you may find he has been damaged by reason of the failure of defendant to*62 perform his part of such contract, not to exceed in all eight hundred and thirty-five dollars.”
The contention is that the petition alleges plaintiff was discharged “without any cause, justification or excuse,” and that it should have been left to the jury to find whether or not he was discharged “without any cause, justification or excuse.” The answer denied the employment was for a year and denied that defendant was discharged; on the contrary it alleged the employment was by the day and that plaintiff quit of his own accord. Therefore there was no contention that plaintiff was discharged for cause. If the contract of employment was for a year, plaintiff’s discharge before the expiration of that time was a breach of the contract and a civil wrong, and as there was neither allegation nor proof that the discharge was for cause, there was no occasion for the court to leave it to the jury to find whether or not the discharge, if made, was without cause, that is, to find a fact which, in the absence of evidence to the contrary, the law presumes to be true.
For error in permitting a recovery of $33 for Sunday work, the judgment will be reversed and the cause remanded, unless within ten days from this date plaintiff remit $33 of his judgment; if the remittitur is made within the time allowed, the judgment for the balance will stand affirmed.