77 F. 954 | 3rd Cir. | 1897
The view which we take with respect to the merits of this case renders it unnecessary for us to consider the motion to dismiss the writ of error. F. Blumenthal & Co., the defendants below, who were morocco manufacturers having their headquarters and residence in the state of New York, carried on a factory in the city of Wilmington, Del., through agents intrusted with the management of the same. Their superintendent of the Wilmington factory was Daniel Pierson, Jr., who had general charge of the concern. ' At this factory the plaintiff below, Mark A. Shaw, was in the (service of the defendants, ostensibly as their apprentice. The defendants were the successors in business at the Wilmington factory of one Charles Mullin. On May 7, 1888, while Mullin was conducting the business, an agreement in writing was entered into between him (Mullin), Mark A. Shaw, the plaintiff, and Robert C. Shaw, the father of Mark, who was a minor, whereby Mark entered into the service of Mullin, as an apprentice, for a term of four years, to learn the trade of shaver. The parties to this agreement acted under it as if it were a valid statutory indenture of apprenticeship, although in fact it was not. When the defendants succeeded to the establishment, they took, by transfer from Mullin, whatever rights
Wilmington, Mch. 7, 1890.
“Dear Sir: One Mark Shaw, an apprentice to us as a ‘shaver,’ left without cause and our notice. Please do not employ him.
“Yours, &c., Daniel Pierson, Jr., Supt.
“J. E. S.”
There was an understanding or “unwritten law” subsisting among morocco manufacturers in the city of Wilmington that none of them would employ an apprentice belonging to another concern. It was shown that in two instances the plaintiff was dismissed from other morocco factories in Wilmington, where he had procured work, by reason of the claim set up by the defendants’ superintendent, Mr. Pierson, that the plaintiff was the defendants’ apprentice. Mr. Media ry, a morocco manufacturer, testified:
“My recollection of the case is that I was called up on the telephone, — I answered the telephone,' — and that Mr. Pierson, or a voice that I supposed to be Mr. Pierson’s, asked me if this man [ShnwJ was working for ns. X told him ‘Yes.’ He said they claimed him as their apprentice.”
In consequence of this claim, Mr. McClary discharged the plaintiff. Mr. Mitchell, another morocco manufacturer, testified:
“I was in P. Blumenthal & Co.’s office, and while there, in conversation with Mr. Pierson or Mr. Sparrow, — I could not tell which, — they told me we had Shaw woi'king for us, and that he was an indentured apprentice of theirs; at least, they asked me if we had. I told him I did not know. Then they informed me that we had. I told them that when I wont to the factory I would find out.”
Immediately after this claim was made, and because of it, Mitchell dismissed Shaw. The plaiuiiif testified without contradiction that on one occasion, after he left the defendants’ factory and was seeking work in Wilmington, he applied to Mr. Pierson for “discharge papers,” and Mr. Pierson refused to give them to him. There was evidence to show that, in consequence of the claim thus asserted by the defendants’ superintendent that the plaintiff was the defendants’ apprentice, owing them service as such, the plaintiff was unable to obtain work at bis trade in Wilmington, and was forced to go elsewhere to seek employment. Cornelius Mundy, the general foreman in the Wilmington establishment, who had reported to the office that. McClary had “one of the firm’s boys” (meaningShaw), testified: “I considered him one of the apprentice boys. * * \ye expected him to finish out his term. * * It had never been the custom to employ other foremen’s apprentice boys
This suit was a special action on the case to recover damages which the plaintiff suffered by the wrongful acts of the defendants in preventing his obtaining employment in his trade, and causing his dismissal from places where he had procured work. Undoubtedly, the declaration discloses a good cause of action, and the refusal of the court to give the jury instructions to the contrary was clearly right. The theory which the defendants’ counsel advanced in the court below, and have pressed here, that the plaintiff’s alleged grievance was the publication of a libel or the utterance of slander by the defendants’ agents, is quite inadmissible, and the court committed no error in refusing to give to the jury the instructions based on that hypothesis which the defendants asked for. We do not concur in the suggestion that the court did not properly submit to the jury the question whether the acts of the defendants’ agents complained of were done in the course of their employment, and within the scope of their agency. It seems to us that this question was clearly and fairly submitted to-the jury.
A more serious question, and, we think, the controlling question in the case/is whether there was sufficient evidence to support the finding of the jury that the acts of Pierson and his subordinates were within the scope of their agency. Upon a careful consideration of the facts shown, we think that there was such evidence, and that the question was rightly submitted to the jury. The actual management of the defendants’ factory at Wilmington was confided by the defendants to their superintendent, Mr. Pierson. The defendants themselves were nonresidents, and the general conduct of the business of the factory, including the supervision and control of .the body of hands employed, was necessarily committed to their resident superintendent. As the representative of absent principals who had invested him with this general agency, he had implied authority to do those things in the course of the business which were appropriate and demanded by the occasion. Now, as we have seen, the plaintiff, Shaw, was ostensibly, although not legally, the apprentice of the defendants. Evidently, the plaintiff was regarded by the defendants’ superintendent, Pierson, and his immediate subordinates, as lawfully bound to serve the defendants as such apprentice for the residue of a. term which would not expire until May 7, 1892. For the claim set up by the defendants’ agents there was certainly color of right. Undeniably, the claim, was made in good faith, and"in the interest of the defendants. Had the actual fact been as was supposed, the defendants themselves might rightfully have issued the postal notice which was sent out, and done the other acts which
The defendants were not entitled to the affirmance of their twenty-third point, which was based on the idea that the plaintiff’s father was entitled to his son’s earnings, during his legal infancy. The emancipation of the son by the father, we think, clearly appeared. This suit was brought after the plaintiff became of age. It was not an action on a contract, but to recover damages for a tortious act. The instructions upon this branch of the case were right. We do not find in any of the assignments of error ground for reversal, and consequently the judgment is affirmed.