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LANCASTER LAW REVIEW. sufficient cause for his discharge, but his sal

, ary would be recoverable until the defendant

saw fit to discharge him. Vol. XXXI.) FRIDAY, NOV. 7, 1913.

An employer may discharge an employee [No.1 before the termination of the period of his

employment and so terminate the contract,

for misconduct and what constitutes sufficient Change of Date of Publication. reason for dismissal is a question of law for

the court, the facts if disputed being for the Beginning with this number, and here-jury. after, the Law REVIEW will be issued on Friday, instead of Monday as heretofore,

Rule for judgment for want of a suffiFriday being a more convenient day for cient affidavit of defense. C. P. Lanthe printers and also for the legal ad-. caster Co. August Term, 1913, No. 87. vertisers, as most of the advertised action

Coyle & Keller, for rule. of the courts is taken on Saturday or Monday.

S. R. Zimmerman and W. U. Hensel, Advertisements should be handed in contra. before Wednesday of each week to be

October 18, 1913. Opinion by LANDIS, sure of publication that week.

P. J.

It is averred in the statement in this

case, and admitted in the defendant's afCommon Pleas--Faw. fidavit of defense, that, on February 5,

1912, the plaintiff entered into an agree

ment with the defendant corporation, Barr vs. American Caramel Co. whereby he was employed as the defend

ant's " sales manager » for the period of Employer and employee-Misconduct of two years from March 1, 1912, at a sal

employee -Discharge -Liability for ary of $6,000 per year, payable in wages.

monthly installments. It is also adThe defendant company employed the mitted that this agreement provided that, plaintiff by written agreement as

sales man

if at the end of six months from that ager” for a period of two years, from March date, the services rendered by the plaintiff monthly and further agreed that if at the end proved reasonably satisfactory and beneof six mon hs his services proved reasonably ficial to the corporation, the salary, after satisfactory and beneficial, the salary should September 1, 1912, for the balance of the be at the rate of $7,500 a year, from March 1, period, should be at the rate of $7,500 1912. The plaintiff agreed to devote his whole time and energies to the service of the

per year, payable monthly on the last day defendant and serve it diligently. The plain of the month, and that, in such case, the tiff was discharged on June 16, 1913, and on company should also pay him, as back suit to recover additional salary from March salary, á sum equal to the difference be1, 1912, to June 30, 1913, and original salary from March 30, 1913, to June 30, 1913, the af

tween the salary actually received up to fidavit of defense admitted the employment September 1, 1912, and the amount he but averred that the services of the plaintiff would have received had he been paid to were, for a considerable time before his dis- that date at the rate of $7.500. charge, not satisfactory or beneficial and were It is averred and admitted that, in a detriment and loss to the company, and he

purdid not give it his whole time, specifying par

suance of the agreement, the plaintiff, ticulars. On rule for judgment for want of on March 1, 1912, began to render sera sufficient affidavit of defense,

vices as sales manager to the defendant Held, That iudgment should be entered for the original salary up to the time of the diss company, and that he continued to do so charge, with leave to proceed for the balance

until June 16, 1913. The plaintiff claims of the claim.

that the services so rendered were reaIf the plaintiff refused to carry out the sonably satisfactory and beneficial to the directions and orders of

president of the

company, and that, although he was company, neglected his duty and spent most of his time in consultation with competitors ready and willing to comply with the pro

visions of his agreement, he was dis- | to date from March 1, 1912, as the concharged on June 16, 1913. He claims tract stipulated it should, provided his that he was paid (and this, too, is not de- services on September 1, 1912, proved nied) at the rate of $500 a month to " reasonably satisfactory” to defendant; March 30, 1913, but that he has received that thereupon the president asked him no back salary, and that there is, there whether “he really thought his services fore, due and owing to him back salary had been satisfactory, or whether he from March 1, 1912, to June 30, 1913, really believed that he had ' made good, namely, $2,000, and his regular salary to which plaintiff promptly replied that from March 30, 1913, to June 30, 1913, he did not think he had, and defendant or $1,500.

refused to pay him such additional salThere is no dispute as to the agree- ary for the reason that his services were ment or its terms. The second para- not, and had not been, reasonably satisgraph of it says that “the said party of factory or beneficial.” I have not rethe second part shall devote the whole of cited the conversations set forth in the his time and attention and energies to his affidavit of defense which preceded the duties as such sales manager, and shall execution of the agreement, nor do I not, either directly or indirectly, alone refer to the averments of derelictions alor in partnership, be connected with or leged prior to March 30, 1913. I do not concerned in any other business or pur- think either are material or can be consuit whatsoever during said term of two sidered. The first were all merged in (2) years,” and the third paragraph says the agreement, and as to the second, the that “the said party of the second part defendant was paid his salary for the shall serve the said party of the first part period during which they seem to have diligently and according to his best abili- taken place, and he was, at those times, ties in all respects.”

in the employ of the defendant company The affidavit of defense, which of under the contract. If he performed no course at this time must be taken as true services of value to the defendant durso far as its facts are legally set forth ing that period, he should have been disand material to the present rule, alleges charged; but, as long as the defendant that "the services of the plaintiff were retained him, it was bound to pay the salnot satisfactory or beneficial; that, after ary under the agreement. he (the plaintiff) had been in defendant's The first question, then, which arises employ several months, he had not suc- is: Is the plaintiff entitled to recover his ceeded in increasing its sales; that, in regular salary from March 30, 1913, to fact, he had not sold or caused to be sold the date of his discharge? There does sufficient goods to pay the expense of his not seem to me to be any good defense hiring, and, altogether, his services were to this part of the claim. I think that proving a loss and detriment, instead of that proposition has been again settled an advantage to defendant "; that, by the Supreme Court in the recent case “Without authority from defendant, .. of Coates vs. Allegheny Steel Company, the plaintiff, on the 16th of March, 1912, 234 Pa., 199. That was also an action to employed an assistant, at the expense of recover wages under a contract of emdefendant, to do the work and perform ployment for a definite term. The conthe services for which plaintiff had been tract gave either party the right to terhired"; that, "by his unbusinesslike minate it by giving twelve months' nomethods, he alienated and lost instead of tice in writing, and on April 29, 1909, gaining customers, and through his ar- the company gave notice to the appellant bitrary treatment of the company's sales- of its intention to exercise this privilege man, incurred their enmity and ham- by terminating the contract on May 1, pered their efficiency.” It is also averred 1910. On November 9, 1909, the comthat, about September 5, 1912, the plain- pany wrote a letter, which is construed tiff asked the president of the company, by the Supreme Court to be a discharge whether his salary would be increased of the appellant. It was held that, "in from $500 per month to $625 per month, such a case, while the plaintiff is entitled

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to recover full monthly salary up to the said party of the first part." While it is time when notice of discharge was given, not specifically set forth in the agreethe question whether a good cause for ment as to who was to be the judge of discharge existed is, under the facts, for whether or not the plaintiff's services a jury." Therefore, under the facts of proved "reasonably satisfactory and this case, I think that the plaintiff is en beneficial," presumptively that right rests titled to recover, without question, his in the defendant company, upon whom is salary from March 30, 1913, to June 16, cast the burden of paying for such ser1913, or two months and sixteen days, vices. If the company, in good faith, at the rate of $500.00 per month, mak- l exercised the right to judge, and, for the ing $1,266.67, with interest from June reason that such services have not proved 16, 1913, and judgment for that amount “reasonably satisfactory and beneficial," is now ordered to be entered.

refused to pay the extra salary, that I “An employer may not, without cause, think is a sufficient defense to this part discharge an employee who has con- of the claim. The affidavit of defense tracted to serve for a specified term; states that the decision of that question but, where there is any misconduct in- was submitted to the plaintiff on Sepconsistent with the relation of master tember 5, 1912, and that he himself deand servant, the master has an cided that his services had not proved doubted right at any time to put an end reasonably satisfactory, that he had not to the contract, and what is sufficient "made good," and it is also averred that reason for dismissal is a question of the services were not satisfactory nor law for the Court.” Matthews vs. Park beneficial. It seems to me that these Bros., 146 Pa., 384. In Peniston vs. averments are quite sufficient to prevent Huber Company, 196 Pa., 580, the Court a judgment at this time. This covers said: “The first question, then, that the claim not only for back services, but arises is, was the discharge proper? Dis also for the additional compensation puted facts connected with such a dis- from September 1, 1912, to the date of charge, and alleged by the employer to the plaintiff's discharge. have been reasonable cause for it, are for In accordance with this view, judgthe jury; but whether it was proper, un- ment is now ordered to be entered in der undisputed or admitted conditions, ' favor of the plaintiff and against the derelied upon as justifying it, is for the fendant company for the sum of $1,Court.”. As we have said, we must, at 266.67, with interest from June 16, 1913, this time, take the allegations of the affi- making in the aggregate $1,292.43, and davit of defense to be true, and if the the rule for judgment for want of a sufplaintiff refused to carry out the direc- ficient affidavit of defense is discharged tions and orders of the president of the as to the balance of the claim, with leave company, if he neglected his duty and to proceed in due form to recover it. spent most of his time in consultation Judgment for plaintiff and against dewith competitors of defendant and on fendant for $1,292.43. matters relating to his own individual and private affairs, then a proper cause arose for his discharge. I, therefore, think that the affidavit of defense is suf

Landskron vs. Graber. ficient to prevent judgment, except for the time we have stated, when the plain- Evidence-Expert opinions. tiff was actually in the employment of the defendant company.

The court was asked to instruct the jury

to disregard the opinions of physicians called The next question is: Should judgment as experts, where said opinions are given on be entered against the defendant for the a hypothetical case, which said case is founded extra salary claimed by the plaintiff? upon disputed ouestions of fact. This salary was only to be paid provided the duty of a jury to follow the opinion of the plaintiff's services should prove "rea

an expert witness if it finds the facts (upon sonably satisfactory and beneficial to the , which such opinion is predicated) are true.

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Motion for new trial. C. P. Mont- ; is based upon facts which are true as you gomery Co. October Term, 1912, No. find from the weight of the testimony, 41.

and you believe the opinion of that phy

sician, then of course it would be your Charles D. McAvoy, for plaintiff. duty to follow it, if you believe that opin

ion is correct, and you believe the facts Larzelere, Wright & Larzelere, for defendant.

are correct upon which that opinion is

based, although there may be conflicting Opinion by Albert W. Johnson, J., ant offers testimony, and on that testi

. the specially presiding.

mony the opinion of an expert witness is In this case the plaintiff brought an

obtained and given to you. It will be action in trespass to recover damages al- your duty to follow that opinion if the leged to have been sustained by him on facts are true, if you find the facts are account of the death of his wife, Mary true-and you must find that-and if Landskron, caused, as the plaintiff you believe that expert witness, although claims, by the negligent and careless the plaintiff may have put witnesses on treatment of an injury or wound in her the stand to contradict those facts. But left hand from a toy pistol in June, 1911. if you believe the facts of the opposing The case was submitted to the jury and side, and not the facts on which the exa verdict rendered in favor of the de- pert opinion is given, of course then you fendant. The plaintiff is now asking could not follow the expert opinion, befor a new trial and to sustain his motion cause it would not be based upon the for a new trial assigned the following facts in the case as you find them. Now reasons:

I think you understand it.” We think " I. The learned court erred in refus- ' the above answer was in accordance with ing the first point to the plaintiff, which the law. was as follows: “The jury shall disre- "It is equally within the special funcgard the opinions of the physicians called tion of the jury to decide which of the experts, where said opinions are given facts upon which, hypothetically stated, on a hypothetical case, which said case is the answer of the expert is based, actubased upon disputed questions of fact. ally exists." 17 Cyc., 264, and cases

“ 2. The verdict is against the law. there cited. • 3. The verdict is against the weight

It is quite evident that in cases of this of the evidence.”

kind the evidence will be conflicting and This case raised a clear-cut issue of it will be necessary for the jury to deterfact whether or not the defendant was

mine the facts to exist on which the opinnegligent in the treatment of the plain- ion is based before any weight can be tiff's wife, and if so, whether such negli- given to the opinion. If the facts exist gence caused the death of plaintiff's wife.

on which the opinion is based and the Unless the first reason is sustained a new

opinion of the expert is believed by the trial should be refused. The plaintiff jury, the opinion should be followed by contends that his first point submitted at

them. This is what the jury were told. the trial should have been affirmed,

We can see no error in the refusal of the which is as follows:


plaintiff's first point, and as we think the “ The jury shall disregard the opinions question was one of fact for the jury of physicians called as experts where and there was sufficient evidence for said opinions are given on a hypothetical their finding, the verdict should not now case, which said case is based upon dis- be disturbed. quted questions of fact."

And now, September 16, 1913. the moThe answer of the court to the plain. tion for a new trial is overruled and a

We retiff's first point was as follows:

new trial refused. fuse that point as put, for as we have told you, it is for you to determine first the facts, and if you find that the opinion

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No. 100.


Mallon vs. Mallon.

summons shall show on the subject of Jurisdiction, J. P.-Action by landlord the cause of action. It is the record that against tenant for failure to deliver

must show this. All that the summons premises in good condition.

must show is the day, the place and the

hours between which the defendant must A of has .” an action by a landlord to recovere damages “We, therefore, come to the consideracaused by failure of a tenant to deliver up the premises in the condition they were de

tion of the body of this record; and we mised. Whether a justice of the peace had

do so with every reasonable presumption jurisdiction is to be determined from the body in favor of the proceedings consistent of the record. Any defect in the original with the record: 2 Stewart's Purdon, process is of no consequence.

1453, n. ; 2 Pepper & Lewis's Cross-RefCertiorari to a justice of the peace. March 20, 1810, sec. 22, 5 Sm. Laws,

erence Annuals, col. 3017. The Act of C. P. Delaware Co. June Term, 1912, 161, says: “That the proceedings of a

justice of the peace shall not be set aside Theodore J. Grayson, for exceptions.

or reversed on certiorari for want of for

mality in the same, if it shall appear on W. R. Frone field, contra.

the face thereof . . . that a precept is

sued in the name of the Commonwealth Opinion by BROOMALL, J.

of Pennsylvania requiring the defendant

to appear before the justice on some day The exceptions filed by the defendant certain . . . agreeably to the provision to the judgment of the justice of the and directions contained in this act, and peace are urged by him for the single that said constable having served the said purpose of showing a want of jurisdic- precept, judgment was rendered on the tion in the magistrate. Indeed, they day fixed in the precept, or on could have no more extended scope be- other day to which the cause was postcause the certiorari in this case was not poned by the justice with the knowledge issued until after the expiration of of the parties. twenty days following the judgment. This suit by the justice's record is The effect of this is to limit the consid- upon an agreement made by the defenderation of the magistrate's proceedings ant with the plaintiff to deliver up posto the inquiries, whether there was lack session of premises demised by the of jurisdiction and whether the proceed- plaintiff to the defendant in as good ings were tainted by partiality, fraud or order and repair as when he took poscorruption. We, therefore, come to the session. The record further states that consideration of this record, having in the defendant broke his agreement. The view the single question of jurisdiction. justice then recites a list of expenses inThis must be determined from the entire curred and to be incurred in order to fecord. Any defect in the original pro- restore the premises to the condition in cess is of no consequence if the body of which they were demised. This evidence the record shows jurisdiction. The sum- he took into account in adjudicating the mons in this case was " in a plea of tres- amount of damages for the breach of the pass arising from contract, either ex- agreement. This list amounts to $120.61. pressed or implied, not exceeding $300." Upon this evidence the justice renders a The word

trespass ” does not neces- judgment for $110.61. A justice has sarily deprive the summons of its con- jurisdiction of an action for damages for tractual quality. Even assumpsit is in the breach of the implied undertaking its origin an action of trespass on the to perform a contract with skill: Conn case upon promises : 1 Chitty's Pleadings, vs. Stumm, 31 Pa., 14. Such being the Ed. 1867, p. 98.

case, a fortiori, has the justice jurisdicAs said by Stewart, J., in Mills vs. tion of damages for the breach of an exRoss, 11 Dist. R., 790: "There is no pressed contract to restore demised statutory requirement as to what the premises in a certain condition?

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