122 Neb. 567 | Neb. | 1932
The appellee, plaintiff below, in his amended petition alleges that he was employed by the defendant company, appellant, in its office from 1920 to March 31, 1928; that the fiscal year of defendant company during said period commenced on April 1, and ended March 31 of the year following; that about May, 1927, the plaintiff received a bonus from defendant of $450 in cash, for the fiscal year preceding March 31, 1927; that about June, 1927, the defendant company by its general manager and vice-president entered into an oral agreement with plaintiff that if plaintiff would remain in the employ of defendant until March 31, 1928, the defendant would pay to plaintiff a bonus at the end of that fiscal year, not less than $450, and would be equal to the bonus paid plaintiff for the previous year, provided the defendant made a profit during the year and paid a bonus to other office employees for said fiscal year; that pursuant to said agreement plaintiff did remain in the defendant’s employ until March 31, 1928, and defendant did make a profit and did pay a bonus to other office employees. Plaintiff asks judgment for $450 with interest.
The defendant company in its answer denies the allegations in the petition, except certain admissions. It admits the employment of plaintiff, and that plaintiff re-' ceived a bonus for the year ending March 31, 1927, of $450, and alleges that defendant has been paid all amounts due him as such employee. The defendant further alleges that plaintiff on September 19, 1929, began an action on said alleged claim for the bonus in the municipal court in Omaha, wherein he based his said claim upon an -oral agreement that, if plaintiff would remain in the employ of the defendant continuously from some time in June, 1927,
About six or seven weeks after March 31, 1928, Mr. Ellis talked to Mr. Hyson about getting his job back, and at that time made np mention of a bonus. On September 19, 1929, appellee began an action against appellant in the municipal court in Omaha, and in that case alleged his employment, and that it was the practice and custom of the company, and particularly with plaintiff, to pay such employees in a three-fold manner, to wit, (1.) a regular weekly salary; (2) an additional monthly salary; (3) a lump sum payment at the end of each fiscal year ending March 31, known as a bonus, based on the profits of the defendant company for the fiscal year immediately preceding; that plaintiff’s
Appellee was examined as a witness in that case, and testified to substantially the allegations of that petition, and that in the conversation Mr. Hyson told him, “ ‘We cannot pay bonuses unless we make profits.’ And he says, ‘Bonuses are based on our profits.’ And he says, ‘In the event we don’t make profits, and we pay anybody else bonuses, we will give you the same consideration as we give others in accordance with the salary you draw.’ ” (The word “don’t” as above quoted evidently means “do.”) And Mr. Hyson stated that if plaintiff remained in the employment of the company for the remainder of the year and they made a profit then the company would pay plaintiff a bonus and give him the same consideration they gave other employees. Plaintiff was questioned as to whethér
On January 31, 1930, appellee herein, as plaintiff, began this action.
In neither of the first two cases he brought did appellee allege or testify that anything was said in the conversation or agreement with Mr. Hyson about appellee receiving the same bonus as the previous year, nor did he mention the sum of $450 as the bonus he was to receive. He admitted in his examination that the reason he did not mention the $450 or that he was to receive the same bonus as the previous year, was because he felt that he drew more salary and would be entitled to- $750, and did not want to prejudice his claim for the $750 by mentioning the part of the conversation that would limit his claim to $450. In the first two actions he admits he omitted to state the particular and necessary part of the alleged agreement that would give him the right to recover in order to gain an advantage of the $300, additional to what he was claiming in his last petition.
, In the first two petitions he bases his claim upon the practice of the company to pay employees in the three-fold manner alleged, and his testimony in those two cases shows beyond question that he was not basing his cause of action upon any express agreement as to the amount of the bonus, as he now claims in this, his third attempt to establish a case that would be definite enough to sustain a judgment.
The appellee in the first two ■ cases, if he is to be believed in this case, purposely did not tell the whole truth. The wilful suppression of a material fact is as inexcusable and unjustifiable in a witness as to wilfully misstate a material fact. And there is a strong inference from his letter, and his petitions and testimony in the first two cases, that no statement was made by Mr. Hyson that'appellee would be paid $450, or a bonus equal to the bonus paid for the previous year. Only two persons were present at the conversation and only the one conversation was had. Mr. Hyson denies it. He is an interested witness, but had no greater interest than Mr. Ellis.
The appellee insists that the credibility of the testimony of the plaintiff in the case was exclusively for the jury to determine, and that the decision of a question of fact by a jury upon conflicting evidence should not be disturbed on appeal. Courts are careful to avoid invading the province
A principle of law applicable in this case is given in Smith v. Boston Elevated R. Co., 184 Fed. 387, 106 C. C. A. 497, 37 L. R. A. n.s. 429, which arose on the second trial of the action. In the second trial plaintiff testified to a version of the accident that was inconsistent with her testimony-at the first trial. The opinion says: “As the incon
There is another feature that cannot be overlooked. The appellee in the first two cases was experimenting or toying with the courts. Two futile attempts were made by suppressing material evidence to get favorable judicial action on a claim that he later found could not be sustained, and the defendant was put to the trouble and expense of preparation and participation in those two cases. Such conduct on the part of appellee cannot be sanctioned. To do so would encourage any number of actions on one theory of a transaction, and on failure to get a favorable opinion of the trial judge, to dismiss without prejudice, and start anew on the same or an inconsistent cause of action, and thus harass a defendant without limit, and further to sanction the indefensible feature that one has the right by
The evidence is such that the verdict cannot be sustained and for that reason is set aside. Inasmuch as appellee’s testimony cannot be corroborated, or substantiated by additional testimony, the judgment is reversed and the cause remanded, with instructions to render judgment against the appellee and dismiss his petition at his cost.
Reversed.