Kimberlin v. Short

Philips, P. J. I. The action of the trial court in-refusing declarations of law asked by plaintiff is assigned for error. We cannot take notice of this assignment because the attention of the court was not called to this-error in the motion for new trial. Matlock v. Williams, 59 Mo. 105; Carver v. Thornhill, 53 Mo. 283; Joyce v. Murnahan, 17 Mo. App. 11; City of Linneus v. Dusky, 19 Mo. App. 20; Schlicke v. Gordon, 19 Mo. App. [647] 479; Griffin v. Regan, 79 Mo. 73; State v. Burnett, 81 Mo. 120. II. The chief object of having declarations of law, where the case is tried by the court sitting as a jury, is to ascertain upon what theory of the law the court reached its conclusion. We are enabled to ascertain this fact in this case, because the court delivered a written opinion, which is preserved in the bill of exceptions. The court found that the reply “ admits the contract and the discharge.” We are of opinion that it is a misconstruction of the reply to hold that it admits the allegation of discharge of defendant by plaintiff, as alleged in the answer. The allegation of the auswer is, that “plaintiff, without just cause, discharged the defendant.” The reply is, that “plaintiff denies that he discharged defendant, without' just cause.” It is questionable to my mind whether under the old system of pleading this reply was obnoxious to the objection of being a negative pregnant, or leaving it so ambiguous as to whether it was the intention of the pleader to put in issue the fact of discharge or of its justice, as to warrant the conclusion of the trial court. G-ould Plead, ch. 6, pt. 1, sect. 36. Be this as it may, under our code of practice we hold that the reply went to the whole averment of the answer and put both facts in issue, especially so after verdict. In Wall v. The Buffalo Water Works Co. (18 N. Y. 119), the averment was, that the plaintiff fell into a ditch, while walking in the street, as he lawfully might do, and without any fault or want of care on his part. The denial of the answer was: “And the defendant denies that the plaintiff, without any fault or want of care on his part, did fall into the ditch.” It was héld, after verdict, that this put in issue the fact of plaintiff falling into the ditch as well as the exercise of due care on his part; that while the answer may have been open to criticism as a species of negative [648] pregnant, the plaintiff, if dissatisfied with it for uncertainty, should have remedied the defect by appropriate motion. A like ruling was made by the Supreme Court of Iowa, in Doolittle v. Green, 32 Ia. 123. And is, in effect, followed by our Supreme Court in First Natl. Bank v. Hogan (47 Mo. 472), and Ells v. Railroad, 55 Mo. 278. The trial court, therefore, proceeded on a false assumption as to the legal effect of the pleadings. And as it was a most material matter at issue as to whether the defendant had in fact been discharged by the plaintiff when he left his service, the plaintiff was entitled to have this question fully and fairly considered by the trier of the fact, uninfluenced by any such consideration as that it was primarily resolved in favor of defendant by the pleadings. It is true the court in its opinion laid some stress on the fact that a notice published by the plaintiff on the thirty-first day of October, 1884, stated that the defendant had been discharged; yet in view of the whole testimony relative to this issue we cannot divest ourselves of the impression that the conclusion of the court was largely influenced, in its analysis and summing up of the whole evidence, by its pre-conceived notion that the plaintiff had admitted the fact of discharge in Ms reply. The interview between plaintiff and defendant, at which the discharge, if made at all, occurred, took place two days, or more, prior to the thirty-first of October. The evidence quite clearly showed that on the occasion of this interview the plaintiff informed the defendant that reports had come to him of his gross misconduct; that he would put the charges in written form; that he demanded of defendant that he cast up the book accounts, which seem to have been kept by defendant, to ascertain how much money he had coming to plaintiff, and should pay it over; and that he stood suspended until he did so, and made answer to or [649] explanation of the charges brought against him. Now it occurs to us that it can hardly be said, as a conclusion of law, that this amounted to a discharge eo instanti. It was rather a suspension of the functions, for the time, of defendant as an assistant in the establishment, with authority to treat patients and collect funds. The intendment, rather, would be that defendant yet remained in service, as he was to be engaged for a reasonable time in straightening up the books, and was to have reasonable time, after the charges and complaints against him were put into written form, to answer to them or clear them up; and certainly while so engaged, and awaiting the charges, and for- a reasonable time to make explanation, if he desired, he would have been entitled to demand pay as per contract.' On the contrary the strength of the evidence is, that without awaiting for a reasonable time, and on the same day, the defendant withdrew from the infirmary and engaged an office in the city apart from the plaintiff’s business, and opened up for business on his own account. When asked, prior to the thirty-first of October, by a friend if he had been discharged he answered negatively. He also, prior to October 31, wrote a letter to one of the patrons of plaintiff’s establishment informing him that he had set up for himself, and soliciting his patronage. The strong tendency of this evidence is that defendant had quit plaintiff’s service prior to the thirty-first of October, and prior to any actual discharge. If this wras true no subsequent act or declaration of the plaintiff could alter the legal effect and consequence of such voluntary withdrawal. It is true that the defendant, in his own behalf, testified, in answer to a question quite leading in its form, that he had been discharged prior to the thirty-first of October. But this was rather a conclusion of law than the statement of the facts from which he drew such conclusion. The conversation upon which such fact alone could be predicated was not denied by him in direct terms. [650] Furthermore, his withdrawal without casting up the-book accounts, or awaiting to make answer to the charges when reduced to writing, gave color to their truth, as well as his delinquency in accounting for and turning over the money collected by him for plaintiff. These acts might well have been the basis for the statement in the notice of October 31, that he was discharged. The plaintiff was entitled to a clear announcement and finding to the effect, that if defendant did so quit the service of plaintiff on the statement that he stood suspended until he did the acts and things required, without more, • he could not recover. The facts are for the jury, and the law arising thereon is for the court. We think the ends of justice require a new trial. The judgment of the circuit court is, therefore, reversed, and the cause remanded. All concur.