190 Mo. App. 420 | Mo. Ct. App. | 1915
This suit is in two counts, one for wages due, and the other for damages for wrongful discharge, based on the following contract entered into between plaintiff, a dressmaker, and defendant, owning and conducting a large dry goods store at Springfield, Missouri: “The party of the first part (plaintiff) hereby agrees to enter into the employ of the party of the second part (defendant), in the capacity of manager of their dressmaking department, such employment to begin March 3, 1913, and to continue for a period of twelve months, during which time she will diligently and faithfully apply herself in the performance of the duties devolving upon her as manager óf the dressmaking department, and in the interest of the Chas. H. Heer D. G. Co. The said second party hereby agrees to pay to the said Mrs. M. K. Maratta the sum of $300 per month during the term of this contract. It is also understood and agreed that the party
The petition alleges that pursuant to the terms of the said contract, she entered into the employ of the defendant on the said 3rd day of March, 1913, and continued to perform the duties of said position until, and including the 2nd day of July, 1913, on which said date the defendant, without good cause, discharged plaintiff from its employ, and refused longer to employ her, although plaintiff, at all times therein mentioned, was and now is ready, willing and able to continue in the performance of the duties of said employment and position. The answer consists of a general denial/ admits the execution of the contract and that defendant discharged plaintiff, and seeks to justify her discharge on the grounds that the plaintiff was not a successful dressmaker, or competent or capable to manage the dressmaking department of its store successfully or to its credit, and denies that the plaintiff performed the conditions of the contract on her part to be performed, and alleges the fact to be that her work was unskillful and unsatisfactory to its customers, and that her work was not competently performed, but was done in such a bungling, unskillful and unsatisfactory manner that one-third or more of the customers of defendant’s store who came to her 'to have their dressmaking work done were dissatisfied with their work and that their said work was not skillfully or competently done.
The plaintiff at the time of making this contract resided in St. Louis, Missouri, and had had several years experience in conducting a dressmaking establishment. She was recommended to defendant by a large dry goods firm of that city. She came to Springfield and entered on her duties of manager of defendant’s dressmaking department on March 3, 1913, the time designated in the contract. There is no question but that plaintiff acted in the capacity of manager of
This statement is, we think, sufficient to dispose of the verdict for plaintiff on the first count for her wages for the month of June. The defendant admits that plaintiff continued in its employ during this month and gave her time and attention to her duties as manager of its dressmaking department, but claims that she was not competent and that her work was not, during this or previous months, efficiently done according to the standard of efficiency required by the contract. This, it is claimed, gave defendant a right to discharge plaintiff.
That incompetency or neglect of duty gives a ground for discharge is not questioned. [26 Cyc. 989.] But defendant did not do so and allowed plaintiff to continue in its employ until July 2nd. While the con
The second count of the petition is based on the wrongful discharge of plaintiff by defendant. The defendant, although admitting the making of the contract and that plaintiff entered on her employment and continued therein for four months and was then discharged for incompetency then and now asserted by defendant, yet insists that a demurrer should have been
Instruction numbered four, given for plaintiff, is in accordance with the law as above expressed. For defendant the jury was instructed that the contract required plaintiff to diligently and faithfully apply herself to the performance of the duties of manager of defendant’s dressmaking department and required her to be competent and capable of managing same successfully and to' the credit of defendant, and that if she failed so to do, or was not competent and capable as so required to be, then defendant had a right to discharge her and she could not recover damages for so doing.
The defendant insists that, there being no evidence for plaintiff on the point, its evidence showing plaintiff’s incompetency and inefficiency is not contradicted and therefore destroys plaintiff’s case and a verdict should have been directed for it. This is not correct for two reasons: First, the evidence on this point cannot.be said to be uncontradicted. The plaintiff did not categorically say that she had complied
While it may be true that, properly speaking, when the burden, of proof is on plaintiff to make out his case, then such burden of proof never shifts to defendant, though the burden of evidence, or of producing evidence to overcome plaintiff’s prima-facie case, does shift to defendant. [Taylor v. Telegraph Co., 181 Mo. App. 288, 168 S. W. 895.] Whether you call it burden of proof or burden of evidence the effect is the same. The plaintiff’s incompetency, as justifying defendant’s discharge of her, is pleaded by defendant to defeat her claim and must be proved by defendant very much as contributory negligence must be pleaded and proved to defeat an action for personal injuries, and there is no better settled rule of law than that in such cases the burden of proof rests on defendant to prove contributory negligence and that uncontradicted evidence of the same, unless such that the court can declare plaintiff negligent as a matter of law, does not entitle defendant to a peremptory instruction. [Collins v. Class, 46 Mo. App. l. c. 303; Sugg v. Blow, 17 Mo. l. c. 361; Buesching v. Gaslight Co., 73 Mo. 219, 229; Bluedorn v. Railroad, 108 Mo. 439, 448, 18 S. W. 1103; McNown v. Railroad, 55 Mo. App. 585, 590; Hudson v. Railroad, 101 Mo. 13, 14 S. W. 15.] The defendant was
The court rejected evidence offered hy defendant to prove that the reputation of the defendant’s dressmaking department and the work done there by plaintiff and under her management was bad and a discredit to the defendant’s store among the customers of such dressmaking department and this we think was error. The evidence of this character should not go to plaintiff’s- general reputation for incompetency or doing inferior work disconnected with the work done by plaintiff under the contract in question, Stone v. Vimont, 7 Mo. App. 277, 279, but should be confined to the work done by plaintiff while in defendant’s employ and to the reputation of the work done for customers of defendant’s dressmaking department while in charge of the plaintiff. We are led to this conclusion from the nature of plaintiff’s employment and the contract made by her. This contract requires that she be “competent and capable to manage the dressmaking department successfully and tó the credit of the party of the second part.” (Italics ours). To what extent these requirements would be implied by the mere contract of hiring we need not inquire as they are embodied in this contract. It was certainly to the highest degree important to defendant that the dressmaking department of its business be successful in attracting and retaining customers, and to this end that it be maintained in good repute for efficiency and competency. The requirement of the contract that, so far as this result depended on plaintiff’s ability and competency and the kind of work turned out by her, her management be successful and to the credit of defendant, is of the essence of the contract. To the credit of defendant, as here used, means substantially the same as to the good repute of this department of defendant’s business and is dependent on the good name and esteem which those dealing with it have and ascribe thereto. It is certainly true that
The fact that as to dress and dresses women are, in the matter of style and whims of fashion, hard to please and past finding out, at least by mere men, is a matter which plaintiff must be held to have known and taken into consideration in making the contract and holding herself out as capable and competent to deal with such problems. It was a condition and not a theory with which she had to deal. It may be true and doubtless is, as suggested by plaintiff, that a dress which so far as the average juryman can judge is faultless and that any objection thereto by the customer is without merit and dne to a mere whim, yet to such customer, who knows style and lines, the garment is a “perfect fright.” These conditions must be reckoned with by both the owner and manager of a dressmaking-department. They are mentioned here to illustrate why the reputation and standing- of this department— the ability to please and satisfy customers — while conducted by plaintiff is important and a proper subject of inquiry.
It results, that this cause should be reversed and remanded for new trial on the second count only. The verdict for plaintiff on the first count will stand until a final disposition of the second count, and a judgment then entered by the trial court disposing of the whole case.