Carson v. Mccormick Harvesting Machine Co.

Gill, J. — Assuming the fact -to be, as the jury found it, that the defendant employed the plaintiff as a salesman for the definite period beginning January 5, 1885, and ending January 1, 1886, then the defendant could not rightly discharge plaintiff from that employment, on August 1, 1885, unless plaintiff was unfaithful in the discharge of his duties or guilty of some misconduct. Beyond these reasons for discharge which may involve moral turpitude, wilful disobedience or habitual neglect, it is rather difficult to lay down any rule, or rules, by which to determine the charge of misconduct, or such as will warrant the dismissal of the servant. In many cases as to whether the conduct of the servant is such as to justify his discharge from service, it is made to depend largely upon its effect upon the master’s business. Mr. Wood, in his work on “ Master and Servant” (section 116) announces the rule that “ the question as to whether a certain state of facts amounts to a legal justification for the discharge of a servant is a question of law for the court, and where the facts are admitted, it is the duty of the court to direct the jury whether or [469] not, upon such, facts, the servant was properly or improperly discharged.” “But,” he says, '•’when there is any dispute about the facts, or their effect, the question is for the jury, under proper instructions from the court,” etc. So then, in view of these suggestions, I take it that it would not have been proper, in this case, for the trial court to have told the jury, that, because the plaintiff, while in the employ of defendant, may have hired his team to haul sand to the asylum, that this of itself gave no just cause for his discharge. But if in attending to such a matter, outside of his business engagement with defendant, he neglected the business of the latter, then it would serve as a legal justification for his removal. So too the same may be said as to the charge of plaintiff’s intoxication at different times during his engagement with defendant. The court would not be justified in telling the jury that if plaintiff became intoxicated during his employment by defendant, he thereby gave cause for his discharge. But if his intoxication was at such times, or so frequent, as to impair his efficiency and thereby defendant’s interests suffered, or on account thereof the plaintiff neglected his duties, then it would amount to a legal justification. All these matters are properly left to the jury, and they should be instructed by the court that if the servant so conducted himself, by engaging in business of his own, or by becoming intoxicated as to neglect or abuse the master’s service, which the servant had engaged to foster and protect, then the discharge of such servant is justifiable. Gonsolis v. Gearhart, 31 Mo. 585; Wood on Master and Servant, sec. 111. We think the court very properly then refused to sustain defendant’s demurrer to the evidence. There was ample evidence to go to the jury on these charges of misconduct, and which tended to prove plaintiff fidelity to his engagement. [470] As to the court’s action in giving and refusing instructions, generally, we see no just ground for defendant’s complaint. They are, as a whole, quite favorable to the defendant, and presented fairly every just defense to which it was entitled. While in plaintiff ’ s instruction number 1, the jury was left to find as to what were plaintiff’s “duties under said contract,” yet the court in other portions of the charge, particularly in defendant’s instruction number 8, fully explained to the jury as to what composed plaintiff ’ s duties. This submission then of a legal question will operate no harm if elsewhere, in other instructions, a full explanation is made by the court. Hudson v. Railroad, 53 Mo. 525. The other points made in defendant’s brief, alT relating to criticism of instructions, are not of sufficient merit to deserve any further notice. We detect no reversible error in this record, and therefore affirm the judgment of the circuit court. The other judges concur.