Wade v. William Barr Dry Goods Co.

| Mo. Ct. App. | Feb 21, 1911

CAULFIELD, J.

(after stating the facts). — Defendant assigns as error the action of the trial court in giving the instruction which we have set forth. Under that instruction, the act of the plaintiff in receiving presents from Hamburger & Co. without the knowledge of his employer could not be treated by the jury as a just ground for discharge unless the jury also found, in effect, that the gifts actually influenced the mind of the plaintiff so as to induce him to act dishonestly towards his employer, and actually caused his employer to pay excessive prices for goods purchased by plaintiff for it. We do not consider this the proper test as to whether plaintiff’s conduct in the respect mentioned constituted just cause for discharge. The engagement between these parties was one demanding fidelity upon plaintiff’s part and confidence upon the part of the defendant. Any conduct upon plaintiff’s part involving lack of fidelity or reasonably calculated to destroy the confidence of a reasonable employer under such an employment would be inconsistent with plaintiff’s continuing as buyer for the defendant and justify his discharge, whether the misconduct caused defendant to suffer actual loss or not. Plaintiff’s secret acceptance and receipt of gifts from those from whom he was buying on behalf of his employer might have been just ground for discharge upon either or both of two hypotheses, the finding by the jury of either or both of which would find some support in the evidence in this case, and one of which is within defendant’s plea.

These hypotheses may be stated as follows: (1) That the gifts were accepted by the plaintiff without the consent of the defendant and with intent on the part of plaintiff to be influenced by them into being untrue to his employer’s cause; (2) That under all the facts and circumstances shown in evidence, the secret acceptance and receipt by plaintiff of these gifts from those with whom he had negotiated or was about to negotiate purchases on behalf of his employer, the defendant, were sufficient to justify a reasonable person occupying the position of. defendant as plaintiff’s employer and acting reasonably, to lose the confidence which the nature of the engagement made it necessary for the defendant to entertain toward the plaintiff.

If either hypothesis is found by the jury, it, as we have said, is immaterial whether the plaintiff actually acted dishonestly toward the defendant or that the defendant suffered actual pecuniary loss. In the first case the misconduct would involve moral turpitude: In both cases the misconduct would be inconsistent with the engagement between the parties.

The second hypothesis is not within defendant’s plea. Upon a retrial, if there be one, defendant may amend in that respect if it be so, advised. We conclude, however, that the plea, though indefinite, sufficiently covers the first hypothesis. It alleges that the plaintiff was “disloyal” in accepting and receiving the presents. This was equivalent to charging plaintiff' with being untrue to his employer’s cause. That is the plain inference to be derived from the use of the word. It involves a corrupt or improper state of mind. Defendant’s charge that plaintiff was disloyal in accepting the presents means, then, as we understand it, that he accepted the presents with intent to be influenced by them into being untrue to his employer’s cause. This was the only sense in which defendant pleaded the acceptance of these gifts as a ground for plaintiff’s discharge. Under this plea, it was, as we have seen, utterly immaterial whether the gifts actually influenced the mind of the plaintiff so as to induce him to act dishonestly towards his employer or actually caused financial loss to his employer. As the instruction made necessary a finding of these immaterial matters it was erroneous. The judgment is reversed and the cause remanded.

Reynolds, P. J., and No'rtoni, J., concur.