27 Mo. 516 | Mo. | 1858
delivered the opinion of the court.
The plaintiff, who is a minor, commenced this suit by his next friend before a justice of the peace. In the statement
This instruction was erroneous. In Smith on Master and Servant, 73 Law Lib. 90, it is said that a servant wrongfully discharged has two remedies, either of which he may pursue immediately on his discharge: “ First, he may treat the contract of hiring and service as continuing, and bring a special action against his master for breaking it by discharging him, and this remedy he may pursue whether his wages are paid up to the period of his discharge or not; or, secondly, if his wages are not paid up to the time of his discharge, he may treat the contract of hiring and service as rescinded, and sue his master on a quantum meruit for the services he has actually rendered.” The plaintiff can only recover in the latter form of action for the services actually rendered up to the time of his discharge, whilst in the former case he might
The measure of damages, in an action for a wrongful discharge brought before the expiration of the term, is not necessarily the contract price for the whole term, because a plaintiff after he is dismissed may sue and recover a judgment and then obtain employment elsewhere, and receive for the residue of the term as much or more than by the broken contract he would have been entitled to if he had served his time out. The damages must depend on the kind of service to be performed and the wages to be paid, and allowance should be made for the time that would probably be lost before similar employment could be obtained. In some pursuits it may be almost certain that the dismissal of a person at a particular season will throw him entirely out of employment for the residue of the year; whilst in other pursuits similar employment could readily be obtained elsewhere on the same or better terms ; and therefore the amount of damages is a question for the jury under all the circumstances of the case. In Smith v. Thompson, 8 C. B. 42, a clerk, who had been engaged under a contract for two years, having been wrongfully dismissed after one quarter’s service, brought an action for such wrongful dismissal, and the jury having awarded him damages equal to a year’s salary, the court refused to interfere with the verdict. This form of action treats the contract as continuing, but the action on a quantum meruit treats the contract as rescinded, and, therefore, it is said that in the action for a wrongful dismissal the wages due up to the time of discharge can not be recovered, but a count
The defendant asked two instructions to the effect that the plaintiff could not recover unless the jury found that he was entitled to contract on his own account, and unless his father had given his consent that he might work for himself. The obligation which the law imposes on the father to maintain his infant children gives him the right to the custody of their persons and to the value of that labor and services during their minority. But a father may emancipate his son and relinquish any claim to his services, and when he does so the child will be entitled to the fruits of his own labor until the father sees fit to resume his authority. (Burlingame v. Burlingame, 7 Cow. 92; Corey v. Corey, 19 Pick. 29; Tillotson v. McCrillis, 11 Verm. 479; Jenison v. Graves, 2 Blackf. 450.) The permission of the father to the son to work for himself may be inferred from circumstances, and the fact that a minor is suffered to leave his parent’s house and go abroad to shift for himself ought to be satisfactory evidence of the parent’s consent to the son’s receiving and enjoying his own wages; otherwise he would be without the means of procuring bread. It was in evidence in this case that the plaintiff’s parents resided in another state ; and as it would not be presumed that he was from home without leave, it would be inferred as a matter of necessity that he had the right to work for himself in order to obtain a living. The defendant’s instructions then ought not to have been given without proper qualifications.
As the case will be remanded, it may be observed that the remarks which fell from the witnesses about the state of the weather and the condition of the plaintiff’s clothing at the time he was discharged, were irrelevant and improper; for
the judgment will be reversed and the cause remanded.