95 N.Y.S. 638 | N.Y. App. Div. | 1905
This action was originally begun against Eugenie R. Jeantet and Emile E. Jeantet, as copartners. Mrs. Jeantet died and her' executors were substituted in her place as defendants. The plaintiff in his complaint alleged that Eugenie R. J eantet and her son Emile E. Jeantet were copartners; that on or about the 31st of August, 1900, he entered into an agreement in writing by which they agreed to employ him at a weekly salary of twenty-five dollars, and in addition thereto fifteen per cent of yearly profits realized on business conducted by Mrs. Jeantet and her son under the firm name of “E. Jeantet;” that the plaintiff was to act as traveling salesman for the defendants and also to assist them in their business at the store when not traveling for them ; that the agreement was to go
On the trial a contract in writing was introduced in evidence, and it appears thereby that it was made between Mrs. E. E. Jeantet and Mr. E. E. Jeantet of the firm of E. Jeantet; and that “Mrs. and Mr. Jeantet agree to' pay to Mr. Oostet a weekly salary of twenty-five dollars, and fifteen per cent on the net profits at the end of each
At the trial several matters were in contest to which it is not necessary to refer at length. One of them related to Emile E. Jeantet being a member of the firm of E. Jeantet. That issue was submitted to the jury and there_ was evidence to support their finding that Emile E. Jeantet was a copartner. The main issue before the jury, however, was as to the right of the plaintiff to recover in view of the defense interposed of his discharge because of his disobedience and refusal to comply with reasonable requirements of the defendants. It was provided by the contract that the plaintiff when not traveling should report to the Jeantet store and assist in the work about the same. It was made to appear that Mrs. Jeantet required of the plaintiff that he should attend at such store when not traveling, at eight o’clock in the morning. It is also shown that the plaintiff disobeyed and disregarded that requirement, and that he refused to attend at that hour, and that he also refused to wait on customers when requested by Mrs. Jeantet so to do. The defendants moved to dismiss the complaint on the ground that it appeared that the plaintiff willfully disobeyed orders of his employer by refusing to attend at eight o’clock in the morning, but it was agreed by counsel that the motion should be held over until after the jury had rendered a general verdict, and the court charged the jury as follows: “Now, the justification, in substance, which they plead, is disrespectful conduct on the part of Mr. Costet to ■ Mrs. Jeantet, and disobedience of her orders, that is, of course, unreasonable disobedience. Now, with respect to disobedience of her orders, you have heard what that claim is. I believe one is with respect t.o refusing to serve customers ; the other is with
- The instruction concerning the rendition of. a verdict against the defendants separately ór collectively was erroneous, but as the jury found against all the defendants, that particular feature becomes unimportant. .After the jury retired they asked for instructions as follows': “ Kindly let us know if we. have to answer the' question in" re plaintiff’s refusal to obey a reasonable order before coming to a verdict. Also, does the answer to the above question require a unanimous reply one way or the other. The whole question seems to hinge on the question.” The judge, therefore, withdrew the direction to find specifically, and, as stated, the jury found a verdict for the plaintiff.
In the manner in which this case was.left to the jury it is plain that, although the special question was withdrawn from their consideration, ytet it was- submitted to them to' determine, not whether, as matter of fact, the plaintiff was discharged because of disobedience of a reasonable order, but whether that order was in itself reasonable, and in this view the case went to the jury on ah improper presentation. It is well settled in the law.that where an employee seeks to recover for an unlawful discharge from his employment it is a good defense to his action that he lias been guilty of disobedience of lawful • and reasonable orders of his employer, or that he
Where an order is given to an employee, and he disobeys it, his employer having an undoubted right to direct the times and manner in which service shall be performed, provided there is no specific agreement with relation thereto, the right of the employer to discharge for such disobedience follows necessarily. If this were not so, as was well said in the case of Jerome v. Queen City Cycle Co. (supra), the position of employer and employee would be reversed.
We think the learned judge in this case should have charged the jury, that the direction given by the defendants to the plaintiff that he should attend at a certain hour in the morning was a reasonable requirement, and if they found as matter of fact that the plaintiff had disobeyed such requirement or direction, his discharge was justified. As the employment was by a copartnership and not by an individual, if the discharge were justified, the defense inured to the benefit of all the members of the copartnership.
The judgment and order should be reversed and a new trial ordered, with costs to appellants to abide the event,
O’Brien, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.