17 Pa. Super. 615 | Pa. Super. Ct. | 1901
Opinion by
The plaintiff, being in.the employ of the defendant, as master and pilot of a river boat, as he claimed for the period of one year, was, as he alleged, discharged by the defendant prior to the termination of his employment. Defendant ■ denied both the employment for the year and the discharge, alleging that plaintiff’s services as master were unsatisfactory and that he was offered employment as pilot at least for one trip, which he declined and voluntarily quit defendant’s service.
The questions raised by the assignments of error were, first, was the plaintiff bound to accept employment as pilot tendered him by the defendant ? The plaintiff does not deny his duty to seek other employment, but insists that he was not bound to accept a lower position, either for a single trip or for the remaining period of his employment, even at the same wages. The court intimated that, if the defendant had offered the plaintiff employment as pilot for the entire period covered by his contract of employment, he would have been bound to accept it, but that he was under no obligation to serve for a single trip. No question as to the sufficiency of the plaintiff’s efforts to seek other employment is raised. The offer of other service, differing in character and for a different period, was of itself in the nature of a rescission of the contract which, if accepted by the plaintiff, would have been evidence of his ássent thereto. He was not bound to put himself in such a position. In reference to the character of the employment, the rule laid down in Wood’s Master and Servant, 242, is: “By other employment is meant employment of a character such as that in which he was employed, or not of a more menial kind. A person employed as a bookkeeper and wrongfully discharged would not be obliged to seek employment as a farm hand, nor
The appellant raises a second question as to the duty of the court to give binding instructions on the ground that the discharge was justifiable. This, however, assumes the fact that the justifiability of the discharge was the issue in the case. The defendant, however, both in his affidavit and in the testimony, denied the fact of the plaintiff’s discharge but insisted that he quit defendant’s service voluntarily, upon an expression of dissatisfaction with his services. The question of discharge and not its justifiability was the real question of fact in the case which was affirmed by the plaintiff and denied by the defendant. The case could not, therefore, have been taken from the jury.
We find no error in the refusal of the defendant’s point or in the general instructions of the court of which the defendant has a right to complain.
Judgment affirmed.