MacFarlane v. Allan-Pfeiffer Chemical Co.

Morris, J. In January, 1906, respondent was employed by appellant as a traveling salesman, at a wage of $125 per month and expenses. He was discharged July 2 following, and in January, 1909, he brought this action to recover $208.40, claimed to be due on account of unpaid wages. The answer admitted the employment, but denied the service for the full period of six months; alleged about fifty-five days’ lost time in the months of April, May, and June, and an overpayment of $16.40. The court below found in favor of plaintiff, and defendant appeals. There can be no question but that respondent performed no service during the time claimed by appellant. He does not claim to, except that, between April 12 and 22, when he admits he was at home ill, he says he sent in an order for a Seattle house, and that, between May 7 and 31 when he admits being at home, he mailed about five hundred postal route cards’. The question then presented is, can a servant [155] employed by the month recover for lost time. It is well settled that he cannot. Under the old common law rule, when the servant was employed for a fixed time, the contract was considered as an entirety, and no recovery could be had except for complete performance. The rule was early modified by the American courts, and it was held that, when, because of sickness or other reason not the fault of the servant, he was unable to continue in his employment, he could, nevertheless, recover pro rata for the service actually performed, less any damage caused by reason of failure of complete performance. Dunlap v. Montgomery, 123 Pa. St. 27, 16 Atl. 41. The same reasoning which protects the servant in permitting him to recover for service actually performed, protects the master in not holding him liable except for services actually performed ; and the servant cannot recover for time lost through his own illness or other inability to perform the required service. 20 Am. & Eng. Ency. Law (2d ed.), 19, 43; Hunter v. Waldron, 7 Ala. 753; Ryan v. Dayton, 25 Conn. 188, 65 Am. Dec. 560; Nichols v. Coolahan, 10 Met. 449; Fuller v. Brown, 11 Met. 440; Wolfe v. Howes, 20 N. Y. 197, 75 Am. Dec. 388; Clark v. Gilbert, 26 N. Y. 279, 84 Am. Dec. 189; Parker v. Macomber, 17 R. I. 674, 24 Atl. 464, 16 L. R. A. 858; McClellan v. Harris, 7 S. D. 447; McDonald v. Montague, 30 Vt. 357; Hughes v. Toledo Scale & Cash Register Co., 112 Mo. App. 91, 86 S. W. 895. The court below was, therefore, in error in allpwing respondent full time for the months of April, May, and June. Respondent cites a number of cases where a recovery has been permitted because of some waiver by the master. Such cases are not in point here, as there is no waiver either alleged or proved. In fact, it appears from the correspondence of the parties that appellant had informed respondent that it was neither willing, nor was it its custom, to pay its salesman for lost time, which would seem to have been acquiesced in by respondent; as in one of his letters to the company, in which he refers to his illness, he says: “I don’t [156] know what your system is in regard to sickness, but I am willing to stand by it.” The judgment is reversed, and the cause remanded with instructions to dismiss the action. Rudkin, C. J., Gos.e, Fullerton, and Chadwick, JJ., concur.