Plаintiff sued defendant for damages. He alleged that he entered into a written contract with defendant whereby thе latter agreed to employ him as bar-tender for one year at $70 per month, and that at the end of the third mоnth he discharged him without good cause; that he was unable to obtain regular employment for the remainder of the term of his employment under his contract. The answer admitted plaintiff’s service, and then alleged that defendant discharged plaintiff on account of incompetency caused by frequent intoxication, and because he was quarrelsome, unaccommodating and negligent in his duties. There was a trial and a judgment for plaintiff. The defendant appealed.
I. The defendant’s appeal rests upon several grounds; the first of these is, thаt the court over the objection of the defendant allowed the plaintiff in rebuttal to show by witnesses that the plaintiff was sober at such times as they saw him. It was perfectly competent for plaintiff in making out his case to show generally that he faithfully discharged the duties of his employment. It would, however, be improper under the ruling in Suttie v. Aloe,
II. No material variаnce is pointed out, nor is any perceived, between the contract stated in plaintiff ’ s petition and thаt introduced in evidence. The rule invoked, that the plaintiff could not recover on a contract othеr than that declared on, can have no application here. The sui1¿ was to recover wages due under the contract.
III. The defendant complains of the action of the court in permitting the plaintiff during the рrogress of the trial to 'amend his petition. The amendment was immaterial and unnecessary. The allegations оf the petition were quite sufficient without the amendment. Besides, the statutes in relation to amendment are liberаl. The appellate courts are not disposed to interfere with the trial courts in the exercise of thеir statutory discretion except where there has been manifest abuse of that discretion. When before final judgment, an amendment of the petition is asked in order that plaintiff may have such redress as the proof may show him entitled, it is no abuse of the discretion given the court to permit it. Carr v. Hoss,
IV. There was no error in permitting thе plaintiff to reply to the answer after the plaintiff had rested his case on the evidence. This was justified by the provisions of the statute authorizing amendment to be made in furtherance of justice. R. S., sec. 3567; Trans. Co. v. Sims,
V. The plaintiff alleged in his petition that he was upright, honest, and fаithfully performed all his duties while in the active employment of defendant. To make out his prima facie case it was as unneсessary for him to plead and prove his sobriety as it would be in an action for personal injuries grounded on the negligence of the defendant for him to plead and prove that the injuries were done to him without any fault on his part. Hudson v. Railroad,
There is a class of cases of which Bogie v. Nolan,
The cases just cited can, therefore, have no application to a case of this kind. Nor does the case of Clifton v. Sparks,
VI. It is true the jury under the evidence might have found for the plaintiff a grеater amount than they did, still we cannot say that the finding of the less amount was prejudicial to defendant or was such a flagrant disregard of the evidence and instructions as would warrant us in vacating it upon the complaint of thе defendant. We are commanded by the statute not to reverse the judgment of any court, unless we believe error was committed against the appellant materially affecting the merits of the action.
It follows that the judgment of the circuit court must be affirmed.