Emery v. Steckel , 126 Pa. 171 ( 1889 )

Opinion,

Me. Justice Claek:

The contention of Steckel, the plaintiff below, was, that he had been employed by T. B. Brown & Co. to keep their books, etc., for a period of nine months from the" fourth day of June, 1887, at the rate of $70 per month; that he remained in the defendants’ service and was paid at the rate agreed upon until July 25, 1887 ’When without cause or sufficient legal excuse he was discharged. He avers that he stood ready and willing at all times during the period stated to perform his duty, according to the nature and terms of his employment, but his services were refused: his claim is for damages upon the footing of his contract, that is to saj*-, according to the rate of compensation agreed upon. The defendants • deny the existence of such a contract; they allege that the plaintiff was employed at the rate of $70 per month, but for no determinate period; that'his withdrawal from the defendants’service was voluntary; that Steckel was incompetent, and failed to discharge the duties which he undertook to perform, and that the defendants were justified upon either- or all of these grounds in discharging' him from their employment. The facts in dispute, however, have been settled by the jury, and in the further consideration of the case here we must proceed upon the plaintiff’s theory of the case, on the facts.

In anticipation of this finding by the jury, the defendants’ counsel, in substance, requested the court to instruct the jurors that it was incumbent ux>on Steckel after his disci targe, to exercise due diligence to obtain other employment, and if they should find that he did not exercise a proper degree of diligence to that end he could not recover. The learned judge of the court below declined so to instinct the jury, saying that the burden of proof was upon the defendants, and that as it was not shown the plaintiff either failed to seek employment or refused it when offered, or that he might have obtained employment had he made a proper effort, the point of law suggested had no application to the case. “ There is no evidence; in this cause,” said the learned judge in his general charge, “ which you can take into consideration in mitigation of damages, excepting the testimony showing that Mr. Steckel was employed during a part of the nine months and for which he received a hundred dollars,” etc. “ The burden of proof was upon the defendants to show that he might have received other employment had he sought it,” etc. The answer to this point, and this portion of the charge, to the same effect, are the only matters embraced in the several assignments of error.

It is well settled that where a servant has been discharged without sufficient excuse, before the expiration of his term of employment, he may in addition to the v». ges earned recover the damages actually sustained; pilma facie, he is entitled to recover to the extent of his wages for the whole term : Fereira v. Sayres. 5 W. & S. 210. He is bound, however, to use reasonable efforts to obtain employment elsewhere; if he fail to find it of the same or a similar character in the same neighborhood he may recover to the extent stated, but the burden of showing that he might by reasonable effort have found such employment elsewhere is upon the defendant. This would seem to be the doctrine of all the eases: Costigan v. M. & H. R. Co., 2 Den. 609; Gillis v. Space, 63 Barb. 177; Sherman v. Transportation Co., 31 Hun 162; Horn v. Land Association, 22 Minn. 233; Wood on Master & Servant, 245-6, and cases there cited. The same rule is announced in 2 Greenleaf’s Ev., 274, citing, among other cases, Costigan v. M. & H. R. Co., supra, where the oases in this country and in England are collected and the question fully discussed. The defendant being' the wrongdoer, as between him and the person wronged the presumptions are in favor of the latter. It is to relieve himself from the results of his own wrongdoing, by way of mitigation merely, that the defendant may make this defence, and the burden of proof under such circumstances of right should rest with him who asserts the fact and would avail himself of it. What is a reasonable effort is necessarily a question of fact for the jury, dependént upon the circumstances of each case.

Our own cases are to the same effect. In King v. Steiren, 44 Pa. 99, the rule is stated with much clearness, that in this class of cases the plaintiff is prima facie entitled to the stipulated compensation for the whole time. “ If so,” says the learned judge delivering the opinion, “ the burden of proof in regard to his employment elsewhere, or his ability to obtain employment, must necessarily rest on the defendant. All evidence in mitigation is for a defendant to give. In its nature it is affirmative and hence it is for him to prove who asserts it. But the possibility of obtaining other similar employment, or the fact that other employment was obtained, bears upon the case only in mitigation of damages, and is therefore a part of the defendant’s case.” This case was followed by Kirk v. Hartman, 63 Pa. 107, where it is said that the question must be considered as settled in King v. Steiren, supra, and to the same effect are the cases of Wolf v. Studebaker, 65 Pa. 459, and Chamberlin v. Morgan, 68 Pa. 168.

The judgment is affirmed.