Butsch v. Emerson-Brantingham Implement Co.

BECKER, J. This ease originated in a justice of the peace court, and is a suit for damages alleged to have been sustained by defendant wrongfully discharging plaintiff under a contract of employment. On a trial before a judge and jury, a verdict and judgment were rendered in favor of plaintiff and against defendant, in the sum of $371.32. Defendant appeals. The amended statement alleges that the defendant is a corporation, and that some time in November, 1912, it employed the plaintiff as a traveling salesman, credit man, and adjuster, at a stated salary, and that the contract was to continue until the 31st day of October, 1913. Plaintiff alleges that he duly performed all the conditions of the contract on his part to be performed, but that defendant failed to perform its part of the agreement, in that, without cause, it wrongfully discharged the plaintiff on the 11th day of June, 1913, to plaintiff’s damage in the sum of $371.31. The defendant filed no written pleading. It is not necessary to set forth the entire written contract of employment. It is sufficient to state that it contains the following clause: “This contract may be canceled by you at any time for my incompetencv, dissipation, misconduct, violation — 391 — of your instruction, dr in the event my services are not satisfactory to you.” Plaintiff testified that on the 11th day of June, 1913, after he had been in the employ of defendant company some seven or eight months, he was called to the office of Mr. Barry, who was at that time the assistant branch house manager of the defendant corporation, and told by him that his services would no longer be required; that Mr. Jackson, the assistant manager of the company, had been down from Rockford, 111., and had insisted on a reduction in the expenses of the St. Louis office, and for that reason they were going to let out quite a number of people, including plaintiff. Plaintiff testified he later on saw Mr. Murphy, who was the branch house manager of the corporation, who told plaintiff practically the same thing and added: “Tour services have always been entirely satisfactory to me; as far as I know I don’t know anything to the contrary.” Mr. Murphy, the branch house manager of the company, was a witness, for the plaintiff. He testified that a few days before the 11th day of June, 1913, the day upon which plaintiff was discharged, Mr. Jackson, who was the assistant house manager of the company, with his office at Rockford, 111., came to St. Louis and had a conference with the witness, and it was definitely decided that the plaintiff and several other of the employees would be laid off. He was asked: “Q. For what reason? A. To cut down expenses, Mr. Jackson said. Q. That is what Mr. Jackson said; to cut down expenses? Mr. Jackson did not complain of the services of Mr. Butsch? A. He said there had been some complaint; that Mr. Barry and Mr. Arant, the credit man, were dissatisfied with his work. . . . ” The witness was asked what occured between the witness and Mr. Butsch regarding this matter, and he answered: “He asked me for a letter of recommendation as to whether his services were satisfactory; I told him they were, and that I would give him the letter, but later — 392 — on in the day — rather it happened that some trouble developed between him and Mr. Barry, and I later told him that under the circumstances I could not give him the letter; that I felt that it might militate against the company if I would give a letter of recommendation. Q. Did he ask yon about his services, whether they were satisfactory or not? A. Yes, sir. Q. What did yon tell him? A. I told him they were. . Q. How many employees were let out at this time? A. As I remember six or seven men and three lady stenographers.” He admitted, on cross-examination, that there had been some complaint made of plaintiff’s services; that Mr. Jackson had complained of the services of Mr. Bntsch, and that he had furthermore been told by Mr. Jackson that Mr. Barry and Mr. Arant, the credit man, were dissatisfied with plaintiff’s work. On behalf of the defendant, Mr. Barry, the credit manager of the said corporation, testified that Mr. Arant, the credit man, had not been satisfied with Mr. Bntsch’s work, and detailed several incidénts of which Arant had complained. Mr. Arant, the credit manager for the defendant company, testified that the services of Mr. Butsch were not satisfactory to him or to the company; that he was not satisfied with the manner in which he had handled the account of one Meyers, also the fact that he was not satisfied with plaintiff’s handling of credits because he did not go into the affairs of the customers as he felt Mr. Butsch should before making shipments to customers. Also that he was dissatisfied with plaintiff, in that, in his correspondence, plaintiff did. not show a disposition to he guided by the recommendations of the home office credit department with reference to handling of credits and collections. Further, that while one of the rules of the company required that a property statement signed by the customer he obtained in each case, the plaintiff had refused, in the case of Meyers’ account, to he guided by that rule. Mr. Jackson testified that he was the assistant domestic trade manager at the time plaintiff was in their employ, and corroborated the testimony of Barry and — 393 — Arant”, and stated that Arant had complained to him of plaintiff’s services, and that his- complaint was along general lines, applying one criticism to the Meyers’ account, and another possibly to the Evers’ account, and that Arant had expressed himself very much dissatisfied with his general work. I. Plaintiff voluntarily assumed the obligation and the risk of this contract of employment, which provided : “This contract-may be canceled at any time . . . in the event my services are not satisfactory to you.” The right of determining whether plaintiff’s services were satisfactory was thus exclusively left to the employer. Stipulations of this character in contracts of employment have been universally upheld, where they are free from the taint of fraud. And where we find such a provision in the contract we cannot presume the contract would have been made without such a provision or on any other terms. We hold this contract clearly falls within that class of cases in which the right of decision is completely reserved to the employer, and that, too, without the employer, being liable to disclose his reasons. [Blaine v. Knapp, 140 Mo. 241, 41 S. W. 787. See, also, Williams v. K. C., S. B. Ry. Co., 85 Mo. App. 103, loc. cit. 110, 111; Walker v. Grout Bros. Automobile Co., 124 Mo. App. 628, loc. cit, 635 to 642, 102 S. W. 25; 1 Labatt’s Master & Servant (2 Ed.), sec. 197, p. 615; Elliott on Contracts, secs. 1603, 1605.] II. When we come to consider appellant’s assignment of error that the trial court erred in submitting the case to the jury, we find, on an examination of the record, substantial evidence adduced on behalf of the plaintiff tending to prove that the defendant discharged plaintiff, not because plaintiff’s services were “not satisfactory” to defendant, but for the purpose of reducing its expenses. A question of fact was thereby raised as to whether plaintiff was in point of fact discharged by the defendant because his services were not satisfactory — 394 — or whether plaintiff was discharged by the defendant for the purpose of reducing its expenses. This issue the court properly submitted to the jury. As stated above, where the employer under a contract of employment such as we find in the instant case had the sole right to determine the character of the employee’s services, and he discharges the employee because he is dissatisfied with the employee’s services, then the question as to whether he ought to have been satisfied cannot be submitted to the jury. [Bush et al. v. Koll, 2 Colo. App. 48, 29 Pac. 919.] As was said in Koehler v. Buhl et al., 94 Mich. 496, 54 N.W. 157: “It is settled law that, where a person contracts to do work to the satisfaction of his employer, the employer is the judge, and the question of the reasonableness of his judgment is not a question for the jury.” But when, as in the case at bar, the question arises, not as to whether the employer dught to have been satisfied or for what reasons the employer may have made up his mind that he was dissatisfied with the employee’s work, but whether or not, in point of fact, at the time he discharged the employee he did so because he was not satisfied with the work of the employee, or discharged him for some other reason, the question should be submitted to the jury. The trial court properly overruled the demurrers to the evidence offered at the close of plaintiff’s testimony in chief, and at the close of the entire case. III. Instruction No. 1, given, to the jury by the court, is complained of by the appellant as containing prejudicial error, in that it submitted to the jury purely a question of law, namely, whether or not the employer was dissatisfied with the services of the employee. We set out instructions Nos. 1 and 2, they are as follows: “(1) The court instructs the jury that if it believes and finds from the evidence that the plaintiff was employed by the defendant as a traveling salesman, credit man, adjuster, and collector for a period commenc — 395 — ing November 25, 1912, to continue until October 31, 1913, at a salary af $110 a month from the 25th of November, 1912, until the 31st day of May, 1913, and $125 per month from the 1st day of June until the 31st day of October, 1913; and if you further find that the plaintiff performed the services required of him to be performed in the contract, was competent, did not dissipate, was not guilty of misconduct, did not violate his instructions, and was ready and willing at all times to perform the services required of him by the terms of said contract ; and if you find that the services of the said plaintiff so rendered by him, if you find he did so render services under said contract, were to the satisfaction of the defendant (italics ours); and if you further find that the said plaintiff was, on the 11th day of June, 1913, discharged by the said defendant — then in that event you will find in favor of the plaintiff and against the defendant.” “ (2) The court instructs the jury that if they believe and find from the evidence in this case that on the 11th day of June, 1913, the defendant was dissatisfied with the services rendered defendant by plaintiff under the terms of the contract (italics ours),.then defendant had a right to discharge the plaintiff, notwithstanding you may further ‘believe from the evidence that the de-. fendant’s dissatisfaction was not the result of ineompetency, dissipation, misconduct, violation of instructions, unwillingness or unreadiness at all times to perform the services required of him as set out in said contract on the part of the plaintiff.” That portion of instruction No. 1 which we have placed in-italics is properly subject to criticism, in the light of the testimony in this case. Instead, the jury should have been instructed that, if they found and believed from’ the evidence that the plaintiff rendered services under said contract, and they further found that the said plaintiff was, on the 11th day of June, 1913, discharged by the defendant for some other reason than that his services were not satisfactory to the defendant, then in that event they should find in favor of plaintiff and against the defendant. — 396 — In considering whether this error was prejudicial or not we must remember that if the jury found for the plaintiff under this instruction, they must necessarily have believed from the evidence that the defendant was satisfied with plaintiff’s services at the time it discharged the plaintiff. The jury having so found, it naturally follows that the defendant in discharging plaintiff discharged him for some reason other than that defendant was “not satisfied” with plaintiff’s work. The instruction, whilé erroneous in the manner above indicated, was not prejudicial to the defendant, and we so hold, particularly in view of instruction No. 2. Finding no reversible error in the record, the judgment is affirmed. Reynolds, P. J., concurs, and Allen, J., concurs in separate opinion.