220 N.W. 602 | Minn. | 1928
Plaintiff held the position of stenographer in the office of Henry Marsh, the district master car builder of the Madison, Minnesota and Dakota divisions of defendant's railway lines, when on July 1, 1922, a strike of the 500 or 600 men employed under him occurred. Plaintiff's salary as stenographer was $95.66 per month. Mr. Marsh was also provided with a chief clerk, drawing a salary of $167.75 per month. When the strike took place the chief clerk was sent elsewhere, and Mr. Marsh designated plaintiff as acting chief clerk, in which capacity he served during the continuance of the strike. Plaintiff claims he was promised the salary of chief clerk, and also ten dollars additional per day, the same as was being paid certain foremen who remained faithful in the service and performed extra hours of labor during the strike. Although the larger salary was placed upon the payroll as made up in the Winona office, the headquarters of Mr. Marsh, the head office of defendant at Chicago failed to remit pay checks to plaintiff in the amounts specified upon the payroll, nor did his pay checks include any for the extra service rendered. When plaintiff called Mr. Marsh's attention to this, the latter assured him that the promised compensation would be paid as soon as the turmoil due to the strike subsided. It was not done, and this lawsuit resulted, with a verdict in favor of plaintiff for the balance due as acting chief clerk and for the *199 promised compensation for the additional or extra work, in all amounting to $767 and interest.
Defendant assigns error on the refusal to direct a verdict in its favor and on the refusal to grant its motion for judgment notwithstanding the verdict, the contention being that no authority was shown in Marsh to employ plaintiff as acting chief clerk or to fix his compensation therein or to employ him to do extra work and promise to pay additional therefor.
Marsh had some over 500 men under him. He had authority to employ men in his department and assign them to their work. His power to employ a stenographer and chief clerk was admitted. But he testified he acted subject to the approval of the superintendent of the car department of defendant at Chicago. However he did not, previously to employing any men, communicate with the superintendent for permission or direction. It is obvious that the jury had ground for finding authority both from his testimony and from the position he held. In the nature of things, with more than 500 men under him, with his superior more than 300 miles away, he would have to possess authority to hire and discharge help. Add to that the emergency created by a strike disrupting the business of a corporation engaged in public service. There was abundant room for finding that defendant had invested Marsh with at least apparent authority to assign plaintiff to do the work he did do and to arrange to pay a not unreasonable compensation during the emergency.
Error is claimed because Mr. Marsh was permitted to be called by plaintiff and cross-examined. Had he, at the time of the trial, held the same or an equal position in defendant's employ that he did in July, 1922, plaintiff would have had the right, under G. S. 1923, § 9816, to call for cross-examination. Snelling State Bank v. Clasen,
Where the witness was a managing agent of the litigant's business at the time involved and, whether demoted or promoted, he still holds a high position of responsibility and authority with such litigant, the adverse party may properly call him for cross-examination under the statute. Whether he occupies such a position that he may thus be called and examined is, in the first instance, for the trial court. Besides, in the case at bar the trial court excluded conclusions, and required questions to be so framed that only facts were called for. It has been held that, even if the court errs in permitting a witness to be called for cross-examination, it will not result in reversal unless appellant points out that he was thereby prejudiced. Leystrom v. City of Ada,
We are of the opinion that the statements of Mr. Marsh to plaintiff, testified to by the latter, were admissible as made within the *201
scope of his employment and in the conduct of defendant's dealings with plaintiff, and come well within the rule and limitations stated in Longman v. Anderson,
Error is assigned upon a portion of the charge, but the brief contains no argument or discussion relative thereto, and we are unable to see any legal fault therein.
The size of the verdict is not such as to give rise to the charge that the jurors were moved by passion or prejudice.
The order is affirmed.
