O'Brien v. John O'Brien Boiler Works Co. , 154 Mo. App. 183 ( 1910 )

REYNOLDS, P. J.

This is an action to recover compensation for services alleged to have been rendered as general superintendent of the appellant company, by John J. O’Brien, deceased, the action being brought by his executrix-. The petition contained two counts, one seeking recovery on a special contract for compensation at the rate of $416.66-2-3 a month; the second on a quantum meruit, the value of the services being stated at the same amount, the services rendered, as it is alleged, between the 8th of January and 22d of April, 1908. The trial was before the court and a jury.

At the close of plaintiff’s evidence and again at the close of all the evidence in the case, defendant interposed demurrers, which were overruled. The plaintiff appears to have abandoned the first count and the court instructed on the second count alone. The jury found in favor of plaintiff on the second count for the full amount claimed, $1458, and judgment followed. Defendant filed a motion for new trial and that being overruled and exceptions saved, has duly perfected its appeal to this court.

' This case presented a very simple issue and there should have been no room for error. It should have gone to the jury on the sole question of whether Mr. O’Brien was employed as general superintendent of defendant, under an implied contract of employment for hire, and if so, what was the reasonable value of his services. He was an officer and director of the defendant and could only be entitled to compensation for any services rendered when compensation for his services was provided for, either in the company’s articles of association, in its by-laws or by resolution of its board of directors, passed before the' services were rendered; or, being services outside of his duties as director or vice-president, and he was both when the services are said to have been rendered, whether they were performed at the instance of its directors or an officer having general power, “upon an implied promise to pay for such services, whep they were rendered, under such circumstances as to raise a fair presumption that the parties intended and understood they were to be paid for or ought to have so intended and understood.” Proof of the fact of employment by a corporation being also subject to the same rules as in case of employment by an individual. [See Taussig v. St. Louis & K. R. Co., 166 Mo. 28, l. c. 34, 65 S. W. 969; Wagner v. Edison Electric Illuminating Co., 141 Mo. App. 51, 121 S. W. 329.] It is also to be remembered, in passing on the competency of witnesses, that in the case at bar Mr. O’Brien is dead. [Banking House of Wilcoxson & Co. v. Rood, 132 Mo. 256, 33 S. W. 816.] We do not think that these issues were kept in mind by counsel in this trial. We make this remark here as the judgment will have to be reversed.

The motion for a new trial assigns ten reasons, the first, second and third to the effect that the verdict is contrary to the facts and the evidence and the law and the evidence; the fourth that the verdict is excessive ; the fifth, that there is no evidence upon which the jury could predicate a verdict; the sixth, that there is no evidence as to the reasonable value of the services claimed to have been rendered upon which the jury could predicate a verdict; the seventh, that the defendant has discovered new and important evidence which even with the most perfect diligence it could not have discovered sooner; the eighth, that the court erred in admitting incompetent, irrelevant and immaterial evidence over the objection of defendant; the ninth, that the court erred in refusing to admit competent, relevant and material evidence offered by defendant ; tenth, that the act of the corporation is ultra vires because its by-laws did not provide for a general manager and plaintiff’s decedent knowingly participated in the act.

As to the first, second and third assignments, it is sufficient to say that this court, as an appellate tribunal, does not weigh the evidence; that. is for the jury and the trial judge.

The verdict is for the exact amount sued for, excluding any interest, and if plaintiff is entitled to recover at all, we have nothing before us to show that it is excessive. There was some evidence as to the reasonable value of the services claimed upon which the jury could predicate a verdict, so that the fifth ground is untenable. The error, however, for which we are compelled to reverse this ease lies, not in the absence of probative evidence, but in the reception of incompetent evidence. The value of the services of the deceased rests, first, on the testimony of a witness who testified that if he had been in the position to hire a superintendent of the 'defendant works at that time, he would have been'willing to pay a person as competent as he knew John J. O’Brien to be, three or four thousand dollars a year. This is not the test of value. The test is, not what the witness himself might have been willing to pay for the services of one as competent as Mr. O’Brien, but, considering the nature and character of his services and the business of defendant, what the witness, if acquainted with these matters,, would say was the reasonable value of the services rendered, not to him, but to others in the same line of business as defendant. As another, and the second test of value which plaintiff was allowed to introduce, was testimony as to the salary the defendant company was paying its general manager at the time of the trial and after the termination of the alleged employment of Mr. O’Brien. This was improperly received, as ■there was no evidence of what the duties of the general manager now are; what he is receiving now is no criterion for the determination of the value of the services of O’Brien, unless it also appeared that the services, as well as the ability, of the two men were alike. It also appears that the general manager referred to was also president of the company. The seventh ground, newly discovered evidence, is unsupported by any showing. The eighth is covered by what we have said above. The ninth is too general for us to pass upon, unaided by suggestion of counsel. The tenth has no merit in it.

Defendant makes six assignments of error in this court: The first, that the trial court should have sustained the demurrer to the evidence; the second and third, that the court erred in giving to the jury the first and second instructions for plaintiff; the fourth, as to the error in permitting plaintiff’s counsel to show what the present salary of the manager of the business was; the fifth, in the admission of testimony that was irrelevant and immaterial; the sixth, that the ■ court erred in excluding competent and material testimony for defendant. As before remarked, this first assignment of error in refusing to sustain the demurrer to the evidence cannot be allowed; under the evidence before the court and jury the demurrer would not lie. The second and third assignments of error cannot be noticed as in the motion for new trial no complaint whatever is made to the action of the court in giving the instructions. As to the fourth, fifth and sixth as- . signments, they are covered by what we have said before as to error in admission of testimony. For that error in admission of testimony, we have concluded that the judgment should' be reversed. We see no error other than this in the action of the learned trial judge in his rulings on the reception and exclusion of testimony, but we are not to be understood as approving the instructions which were given; as there was no challenge of them in the motion for a new trial, we do not review them. The judgment of the circuit court is reversed and the cause remanded.

Norloni and Caulfield, JJconcur.