8 N.Y.S. 561 | N.Y. Sup. Ct. | 1890
This action is brought to recover damages for breach of an alleged contract between the parties. The plaintiff claims that by that
The remaining question relates to the plaintiff’s discharge. The defendants claim that he was discharged for improper conduct, and disobedience to the rules of the shop. It was claimed by defendants that plaintiff disobeyed the rules of the shop, and also that he was insolent to the foreman. The defendant asked the court to charge: “If the plaintiff violated the rules of the shop of McKinney & Son, Mr. McKinney had a right to discharge him from his employment.” The court qualified this by saying, “if the violation was of that character as to amount to a sufficient justification.” How, in understanding this request of defendants, we must notice that the plaintiff had testified that there were certain rules adopted in the shop; that there was a card, “Ho smoking allowed;” that he did smoke, and violated the rule in working hours; that when remonstrated with by the foreman he went out of the shop, and finished his cigar. It is the right of the employer to establish rules. If a workman, oh seeing these rules, is dissatisfied with them, he need not accept the employment. If he accepts it, however, he must obey the rules. If he disobeys the rules, he breaks his part of the contract, because it is a part of his contract to obey them. The plaintiff in this case is not suing tó recover for work which he has performed. He is suing for a breach of the alleged contract to employ him for a year. He must then show that he has performed his part of the contract. If he has broken his side, he cannot compel the defendants to keep theirs, or recover damages if they do not continue to observe a contract which he has broken. The qualification which the learned justice added, left it to the jury to say whether the violation was sufficient to justify the defendants. Perhaps an unintentional or accidental violation of a rule might be held not to be within the fair meaning of the rule itself. But no such question was in the case. The plaintiff must have known he was violating the rule. He did not even lay aside his cigar when the foreman spoke to him, but he went out of the shop, in working hours, to finish his cigar; thus evidently adding another fault to that which he had committed. We think the defendants were entitled to the charge they asked.
They'also requested the court to charge that if the plaintiff acted insolently to the foreman, while engaged, in his employment, defendants had a right to discharge him. The learned justice left it to the jury to say whether the insolence was sufficient. Perhaps on the testimony it might have been a question whether or not plaintiff did act insolently, although we should think there could be little doubt of that. But if he did act insolently he broke an
While concurring in the opinion of Justice Learned, and in the result he arrives at, it seems fit to add that the evidence was sufficiently clear that the plaintiff violated a substantial regulation of the defendants’ shop; ■and that he was so insolent and offensive towards Myers, the defendants’ foreman, as to justify Ms discharge by defendants; and so, as it might well be held as matter of law that the recovery was wrong, a direction to the jury to find a verdict for defendants would have been very proper.
The refusal to charge as requested implied that the master •ought to bear with some insolence from his servant. This will not do, unless ■the master has given his servant provocation. If he has, then I think the circumstances may be left to the jury to determine whether the provocation justified or excused the servant. With this qualification, or rather addition, to the above opinion, I concur in it.