77 Mo. App. 572 | Mo. Ct. App. | 1898
The plaintiff was employed by the defendant for a definite time as a traveling salesman. He claims that prior to the expiration of the time he was wrongfully discharged. He sues for the violation of the contract. This is the second time the cause has been before us (72 Mo. App. 325). The opinion on
There is no question that the plaintiff was discharged; that he proffered to complete his contract, and that he was unable to get employment elsewhere. The controverted questions under the evidence are whether alleged misconduct of the plaintiff justified his discharge, and if so whether the defendant condoned the offenses.
One of the.charges is that plaintiff wrote disrespectful letters to the managing officer of the defendant. We decided on the former appeal that the contents of the letters were such as to amount to a breach of the contract by plaintiff, and to justify his dismissal, and that the judgment should be for the defendant, on that ground alone, unless the defendant by its conduct had waived the breach. Another charge is that plaintiff failed to render weekly statements of his expense 'account, as required by the contract. The plaintiff testified that he sent a statement each week. The evidence of the defendant was to the effect that the statement for one week was missing. Another charge is that the plaintiff failed to go to Dawson, Alabama, to look after the collection of a claim against one of defendant’s customers. Another charge is that the plaintiff was ordered by the defendant to go directly from Nashville, Tennessee, to the city of Jackson in that state; that he did not do so, and that he reached Jackson several days
Under the foregoing testimony the circuit court on its own motion gave the following instruction, among others, of which defendant complains.
“If from the evidence you believe that the plaintiff intentionally disobeyed the instructions given by the defendant to the plaintiff regarding his expenses or his route, or concerning other matters connected with the business, or neglected or refused to perform duties imposed upon him, and that such disobedience or such neglect was in regard to matters of such importance in the conduct of the business as reasonably required obedience and fulfillment on the part of the plaintiff, and that the defendant with reasonable promptness discharged the plaintiff for such disobedience or neglect, then his discharge was ‘with just cause.’
To constitute just cause for the discharge of a servant for disobedience of orders the act of insubordination must be such as to show that the servant could not be relied on to do good work. But in determining the question, says Mr. Wood in his work on the law of Master and Servant, “reference must always be had to the contract, the nature and character of the business for which the servant was employed, and the command itself. What might be regarded as insubordination in a servant employed in one capacity might not be so regarded of a servant of another; therefore the question is one of fact for the jury.” (Wood on Mast. & St., sec. 119.) In the case of Shaver v. Ingham, 58 Mich. loc. cit. 54, the court says: “In such employments as involve a higher order of services, and some degree of discretion and judgment, it would in our opinion be unauthorized and unreasonable to regard skilled mechanics or other employees, as subject to the whim and caprice of their employers or as deprived of all right of action to such a degree as to be liable to lose their places upon every omission to obey orders, involving no serious consequences.
The defendant also complains of the eighth instruction. The objection to that instruction is that the question of waiver was not submitted as a question of fact, but the jury were told that if they found certain facts to be true, they must find that there was a waiver, Generally speaking, waiver is a matter of intention, and when different inferences may be justly drawn from the acts relied on to constitute a waiver, it is always a question for the jury. But where the alleged acts or conduct of a party are such (if true) as clearly to indicate condonation or waiver, then it is not improper for the court to instruct the jury that if they find the defendant so acted that they should find a waiver. The facts stated in the instruction were supported by the evidence, and, if true, the conclusion is unavoidable that the defendant-intended to condone the offenses. Best v. Byrne, 51 Wis. 531.
The defendant asked and the court refused to give a formal instruction that the onus was on the plaintiff to show that he was wrongfully discharged. The instructions of the court in effect so stated, not.directly, however, but by plain implication, and it is not probable that the jury did not understand that the burden
The judgment of the circuit court will be affirmed.