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or attending to his private affairs, there was

Lancaster Law REVIEW. sufficient cause for his discharge, but his sal

VOL. XXXI.] FRIDAY, NOV. 7, 1913.

ary would be recoverable until the defendant saw fit to discharge him.

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 reason for dismissal is a question of law for the court, the facts if disputed being for the jury.

Change of Date of Publication. Beginning with this number, and hereafter, 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 of the courts is taken on Saturday or Monday.

Advertisements should be handed in before Wednesday of each week to be sure of publication that week.

Common Pleas--Law.

Barr vs. American Caramel Co.

Employer and employee-Misconduct of employee-Discharge-Liability for

wages.

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The defendant company employed the plaintiff by written agreement as sales manager" for a period of two years, from March 1, 1912, at a salary of $6,000 a year payable monthly and further agreed that if at the end of six mon.hs his services proved reasonably satisfactory and beneficial, the salary should be at the rate of $7,500 a year, from March 1, 1912. The plaintiff agreed to devote his whole time and energies to the service of the defendant and serve it diligently. The plaintiff was discharged on June 16, 1913, and on suit to recover additional salary from March 1, 1912, to June 30, 1913, and original salary from March 30, 1913, to June 30, 1913, the affidavit of defense admitted the employment but averred that the services of the plaintiff were, for a considerable time before his discharge, not satisfactory or beneficial and were a detriment and loss to the company, and he did not give it his whole time, specifying particulars. On rule for judgment for want of a sufficient affidavit of defense,

Held, That judgment should be entered for the original salary up to the time of the discharge, with leave to proceed for the balance

of the claim.

If the plaintiff refused to carry out the directions and orders of the president of the company, neglected his duty and spent most of his time in consultation with competitors

Coyle & Keller, for rule.

S. R. Zimmerman and W. U. Hensel,

contra.

October 18, 1913. Opinion by LANDIS, P. J.

It is averred in the statement in this case, and admitted in the defendant's affidavit of defense, that, on February 5, 1912, the plaintiff entered into an agreement with the defendant corporation, whereby he was employed as the defendant's "sales manager" for the period of two years from March 1, 1912, at a salary of $6,000 per year, payable in monthly installments. It is also admitted that this agreement provided that,

if at the end of six months from that date, the services rendered by the plaintiff proved reasonably satisfactory and beneficial to the corporation, the salary, after September 1, 1912, for the balance of the period, should be at the rate of $7,500 per year, payable monthly on the last day of the month, and that, in such case, the company should also pay him, as back salary, a sum equal to the difference between the salary actually received up to September 1, 1912, and the amount he would have received had he been paid to that date at the rate of $7.500.

It is averred and admitted that, in pursuance of the agreement, the plaintiff, on March 1, 1912, began to render services as sales manager to the defendant company, and that he continued to do so until June 16, 1913. The plaintiff claims that the services so rendered were reasonably satisfactory and beneficial to the company, and that, although he was ready and willing to comply with the pro

visions of his agreement, he was dis- | charged on June 16, 1913. He claims He claims that he was paid (and this, too, is not denied) at the rate of $500 a month to March 30, 1913, but that he has received no back salary, and that there is, therefore, due and owing to him back salary from March 1, 1912, to June 30, 1913, namely, $2,000, and his regular salary from March 30, 1913, to June 30, 1913, or $1,500.

There is no dispute as to the agreement or its terms. The second paragraph of it says that "the said party of the second part shall devote the whole of his time and attention and energies to his duties as such sales manager, and shall not, either directly or indirectly, alone or in partnership, be connected with or concerned in any other business or pursuit whatsoever during said term of two (2) years," and the third paragraph says that "the said party of the second part shall serve the said party of the first part diligently and according to his best abilities in all respects."

The affidavit of defense, which of course at this time must be taken as true so far as its facts are legally set forth and material to the present rule, alleges that "the services of the plaintiff were not satisfactory or beneficial; that, after he (the plaintiff) had been in defendant's employ several months, he had not succeeded in increasing its sales; that, in fact, he had not sold or caused to be sold sufficient goods to pay the expense of his hiring, and, altogether, his services were proving a loss and detriment, instead of an advantage to defendant"; that, "Without authority from defendant, . . the plaintiff, on the 16th of March, 1912, employed an assistant, at the expense of defendant, to do the work and perform the services for which plaintiff had been hired"; that, "by his unbusinesslike methods, he alienated and lost instead of gaining customers, and through his arbitrary treatment of the company's salesman, incurred their enmity and hampered their efficiency." It is also averred that, about September 5, 1912, the plaintiff asked the president of the company, whether his salary would be increased from $500 per month to $625 per month,

to date from March 1, 1912, as the contract stipulated it should, provided his services on September 1, 1912, proved "reasonably satisfactory " to defendant; that thereupon the president asked him whether "he really thought his services had been satisfactory, or whether he really believed that he had made good,' to which plaintiff promptly replied that he did not think he had, and defendant refused to pay him such additional salary for the reason that his services were not, and had not been, reasonably satisfactory or beneficial." factory or beneficial." I have not recited the conversations set forth in the affidavit of defense which preceded the execution of the agreement, nor do I refer to the averments of derelictions alleged prior to March 30, 1913. I do not think either are material or can be considered. The first were all merged in the agreement, and as to the second, the defendant was paid his salary for the period during which they seem to have taken place, and he was, at those times, in the employ of the defendant company under the contract. If he performed no services of value to the defendant during that period, he should have been discharged; but, as long as the defendant retained him, it was bound to pay the salary under the agreement.

The first question, then, which arises is: Is the plaintiff entitled to recover his regular salary from March 30, 1913, to the date of his discharge? There does not seem to me to be any good defense to this part of the claim. I think that that proposition has been again settled by the Supreme Court in the recent case of Coates vs. Allegheny Steel Company, 234 Pa., 199. That was also an action to recover wages under a contract of employment for a definite term. The contract gave either party the right to terminate it by giving twelve months' notice in writing, and on April 29, 1909, the company gave notice to the appellant of its intention to exercise this privilege by terminating the contract on May 1, 1910. On November 9, 1909, the company wrote a letter, which is construed by the Supreme Court to be a discharge of the appellant. It was held that, "in such a case, while the plaintiff is entitled

to recover full monthly salary up to the time when notice of discharge was given, the question whether a good cause for discharge existed is, under the facts, for a jury." Therefore, under the facts of this case, I think that the plaintiff is entitled to recover, without question, his salary from March 30, 1913, to June 16, 1913, or two months and sixteen days, at the rate of $500.00 per month, making $1,266.67, with interest from June 16, 1913, and judgment for that amount is now ordered to be entered.

'An employer may not, without cause, discharge an employee who has contracted to serve for a specified term; but, where there is any misconduct inconsistent with the relation of master and servant, the master has an undoubted right at any time to put an end to the contract, and what is sufficient reason for dismissal is a question of law for the Court." Matthews vs. Park Bros., 146 Pa., 384. In Peniston vs. Huber Company, 196 Pa., 580, the Court said: "The first question, then, that arises is, was the discharge proper? Disputed facts connected with such a discharge, and alleged by the employer to have been reasonable cause for it, are for the jury; but whether it was proper, under undisputed or admitted conditions, relied upon as justifying it, is for the Court." As we have said, we must, at this time, take the allegations of the affidavit of defense to be true, and if the plaintiff refused to carry out the directions and orders of the president of the company, if he neglected his duty and spent most of his time in consultation Iwith competitors of defendant and on 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 sufficient to prevent judgment, except for the time we have stated, when the plaintiff was actually in the employment of the defendant company.

The next question is: Should judgment be entered against the defendant for the extra salary claimed by the plaintiff? This salary was only to be paid provided the plaintiff's services should prove "reasonably satisfactory and beneficial to the,

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said party of the first part." While it is not specifically set forth in the agreement as to who was to be the judge of whether or not the plaintiff's services proved reasonably satisfactory and beneficial," presumptively that right rests in the defendant company, upon whom is cast the burden of paying for such services. If the company, in good faith, exercised the right to judge, and, for the reason that such services have not proved "reasonably satisfactory and beneficial," refused to pay the extra salary, that I think is a sufficient defense to this part of the claim. The affidavit of defense states that the decision of that question was submitted to the plaintiff on September 5, 1912, and that he himself decided that his services had not proved reasonably satisfactory, that he had not "made good," and it is also averred that the services were not satisfactory nor beneficial. It seems to me that these averments are quite sufficient to prevent a judgment at this time. This covers the claim not only for back services, but also for the additional compensation from September 1, 1912, to the date of the plaintiff's discharge.

In accordance with this view, judgment is now ordered to be entered in favor of the plaintiff and against the defendant company for the sum of $1,266.67, with interest from June 16, 1913, making in the aggregate $1,292.43, and the rule for judgment for want of a sufficient affidavit of defense is discharged as to the balance of the claim, with leave to proceed in due form to recover it.

Judgment for plaintiff and against defendant for $1,292.43.

Landskron vs. Graber.

Evidence-Expert opinions.

The court was asked to instruct the jury to disregard the opinions of physicians called as experts, where said opinions are given on a hypothetical case, which said case is founded upon disputed questions of fact.

the duty of a jury to follow the opinion of

He'd, Not to be error to charge that it is

an expert witness if it finds the facts (upon which such opinion is predicated) are true.

Motion for new trial. C. P. Montgomery Co. October Term, 1912, No.

41.

Charles D. McAvoy, for plaintiff.

is based upon facts which are true as you find from the weight of the testimony, and you believe the opinion of that physician, then of course it would be your duty to follow it, if you believe that opinion is correct, and you believe the facts 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 testitestimony. In other words, the defendspecially presiding.

Larzelere, Wright & Larzelere, for defendant.

In this case the plaintiff brought an action in trespass to recover damages alleged to have been sustained by him on account of the death of his wife, Mary Landskron, caused, as the the plaintiff claims, by the negligent and careless treatment of an injury or wound in her left hand from a toy pistol in June, 1911. The case was submitted to the jury and a verdict rendered in favor of the defendant. The plaintiff is now asking for a new trial and to sustain his motion for a new trial assigned the following

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This case raised a clear-cut issue of fact whether or not the defendant was negligent in the treatment of the plaintiff's wife, and if so, whether such negligence caused the death of plaintiff's wife. Unless the first reason is sustained a new trial should be refused. The plaintiff contends that his first point submitted at the trial should have been affirmed, which is as follows:

"The jury shall disregard the opinions of physicians called as experts where said opinions are given on a hypothetical case, which said case is based upon disquted questions of fact."

The answer of the court to the plaintiff's first point was as follows: "We refuse 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

But

mony the opinion of an expert witness is
obtained and given to you. It will be
your duty to follow that opinion if the
facts are true, if you find the facts are
true and you must find that-and if
you believe that expert witness, although
the plaintiff may have put witnesses on
the stand to contradict those facts.
if you believe the facts of the opposing
side, and not the facts on which the ex-
pert opinion is given, of course then you
could not follow the expert opinion, be-
cause it would not be based upon the
facts in the case as you find them. Now
I think you understand it." We think
the above answer was in accordance with
the law.

"It is equally within the special function of the jury to decide which of the facts upon which, hypothetically stated, the answer of the expert is based, actually exists." 17 Cyc., 264, and cases

there cited.

It is quite evident that in cases of this kind the evidence will be conflicting and it will be necessary for the jury to determine the facts to exist on which the opinion is based before any weight can be given to the opinion. If the facts exist on which the opinion is based and the. opinion of the expert is believed by the jury, the opinion should be followed by them. This is what the jury were told. We can see no error in the refusal of the plaintiff's first point, and as we think the question was one of fact for the jury and there was sufficient evidence for their finding, the verdict should not now be disturbed.

tion for a new trial is overruled and a And now, September 16, 1913, the monew trial refused.

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summons shall show on the subject of the cause of action. It is the record that must show this. All that the summons must show is the day, the place and the hours between which the defendant must appear and before whom."

We, therefore, come to the consideration of the body of this record; and we do so with every reasonable presumption in favor of the proceedings consistent with the record: 2 Stewart's Purdon, 1453, n.; 2 Pepper & Lewis's Cross-RefMarch 20, 1810, sec. 22, 5 Sm. Laws, erence Annuals, col. 3017. The Act of 161, says: "That the proceedings of a justice of the peace shall not be set aside or reversed on certiorari for want of formality in the same, if it shall appear on the face thereof. . . that a precept issued in the name of the Commonwealth of Pennsylvania requiring the defendant to appear before the justice on some day certain . . . agreeably to the provision and directions contained in this act, and that said constable having served the said precept, judgment was rendered on the day fixed in the precept, or on some other day to which the cause was postponed by the justice with the knowledge of the parties.'

The exceptions filed by the defendant to the judgment of the justice of the peace are urged by him for the single purpose of showing a want of jurisdiction in the magistrate. Indeed, they could have no more extended scope because the certiorari in this case was not issued until after the expiration of 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 to the inquiries, whether there was lack of jurisdiction and whether the proceedings were tainted by partiality, fraud or corruption. We, therefore, come to the consideration of this record, having in view the single question of jurisdiction. This must be determined from the entire record. Any defect in the original process is of no consequence if the body of the record shows jurisdiction. The summons in this case was “in a plea of trespass arising from contract, either expressed or implied, not exceeding $300." The word trespass "does not necessarily deprive the summons of its contractual quality. Even assumpsit is in its origin an action of trespass on the case upon promises: 1 Chitty's Pleadings, Ed. 1867, p. 98.

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ant with the plaintiff to deliver up possession of premises demised by the plaintiff to the defendant in as good order and repair as when he took possession. The record further states that the defendant broke his agreement. The justice then recites a list of expenses incurred and to be incurred in order to restore the premises to the condition in which they were demised. This evidence he took into account in adjudicating the amount of damages for the breach of the agreement. This list amounts to $120.61. Upon this evidence the justice renders a judgment for $110.61. A justice has jurisdiction of an action for damages for the breach of the implied undertaking to perform a contract with skill: Conn vs. Stumm, 31 Pa., 14. Such being the case, a fortiori, has the justice jurisdiction of damages for the breach of an expressed contract to restore demised premises in a certain condition?

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