102 Wis. 172 | Wis. | 1899
The question which was sharply litigated in this case was whether McKillop quit because of genuine and justifiable fear of serious bodily violence at the hands of the hourly men who had struck, or because of the agreement or resolution of the day men to strike at noon of the 9th of July, unless the demands of the hourly men were acceded to. There was evidence which would justify a finding either way on these propositions. Certainly, there were ample facts which would justify the conclusion that McKillop quit because he choose to abide by the resolution, or, in other words, that he was in fact one of the second set of strikers. If .such
This proposition of law was substantially correctly stated in the following instruction, which was offered by the defendant: “You are instructed that if Mr. McKillop left bis work, under and pursuant to the agreement of the day men and the hourly men on the night of July 8, 1896,— that is, to quit at noon, July 9th, if defendants did not concede to the proposition submitted to them on July 8th, then plaintiff cannot recover, and your verdict shall be for the defendants.”
The court read this instruction to the jury, and added the following words: “ That is, if that was the reason he quit, and the danger was not such — that the danger or apparent danger was not such — that the man of ordinary nerve would have refused or declined to go on with the work, your verdict will be for the defendants.”
We think that the addition of this limitation to the instruction was error. Irrespective of the statute which requires an instruction to be given as asked or refused in full (R. S. 1878, sec. 2853), we think the plaintiffs in error were certainly entitled to have the instruction which they asked given without dilution or qualification. The proposition was that, if Mr. McKillop quit in pursuance of the agreement to strike, be could not recover, and the jury should have been so informed plainly and directly, without being required to determine, in addition, what would have been the condition of mind of a hypothetical man who perhaps had entered into no agreement to strike. The last clause added a confusing element to a simple proposition, and it was error to attach it to the instruction as asked.
A more important and vital question, however, is yet to be considered. There was a motion to direct a verdict for
Now, it may well be that McKillop would be justified in quitting if the danger of bodily injury was real and imminent, and the threats of the strikers were so serious tha-t a reasonable man in McKillop’s situation would have- been justified in believing that he was in imminent danger if he continued to work; for it can hardly be claimed that a man must daily carry his life in his hand in such a manner. Still, this condition of things was a condition for which the master was in no way responsible. If it operated to relieve McKillop from his obligation to work the entire season, still it manifestly could not operate to give him any greater right against his employer than as though he had been relieved of
In the last-cited case (Allen v. McKibbin) the court tersely states the rule as to the measure of recovery thus: “Without reviewing the cases in detail, we think that the only rule which harmonizes them may be laid down substantially as follows: The defaulting plaintiff can in no case recover more than the contract price, and cannot recover that if his work is not reasonably worth it, or if, by paying it, the rest of the work will cost the defendant more than if the whole had been completed under the contract. The party in default can never gain by his default, and the other party can never be permitted to lose by it; and the price thus determined is the true amount recoverable on a quamdmn meruit."
The recovery, then, in the most favorable aspect of the case, is limited to the amount of McKillop’s wages at the agreed rate, less any damages resulting to the employer from the termination of the contract. Those damages are stipulated and fixed. The language used in the written agreement is apt, and clearly expresses the understanding that the damages recoverable for a termination thereof shall be fifteen days’ wages. The consequences of a ter
The damages stipulated by the contract equal the amount of the defendant in error’s demand, and therefore, upon the most favorable view of the evidence, preclude any recovery. A verdjct for the plaintiffs in error should have been directed, and the verdict for the defendant in error should have been set aside.
By the Court. — Judgment reversed, and action remanded for a new trial.