Ulrich v. Hower , 156 Pa. 414 ( 1893 )

Opinion by

Mr. Justice Mitchell,

The exclusion of the testimony of Ritter as to the assignment to him of plaintiff’s claim was error. What was proposed to be proved was not a verbal acceptance of a bill of exchange, draft, or order for the payment of money, which the act of May 10, 1881, P. L. 17, requires tobe in writing, but an assignment to a creditor by a debtor of a claim for money due the latter by a third person. It is not entirely clear that it is within the statute at all, but whether it is or not, the objection can only be raised by the acceptor for whose benefit the statute was passed. The language is “ no person shall be charged as an acceptor,” etc. If Hower had paid Ritter in obedience to the verbal assignment, there could be no question that such payment would be a good defence. So if he sets up the order here and the verdict should be for him on that ground, he would be estopped from setting up the statute hereafter against Ritter. Whether such a verbal assignment is revocable or not may depend largely on the circumstances, which were not allowed to be put in evidence, and in any event the fact of revocation was for the jury. The first, second, fifth and sixth assignments are sustained.

There was also error in the qualification of the defendant’s second point, and in the general charge on the subject of the plaintiff’s conduct. Defendant discharged the plaintiff and claimed that no wages were due him, because he got drunk, drove defendant’s team recklessly, and used it in hauling for other people, besides the still more serious accusation that he had sold some of defendant’s feed for the team and pocketed the money. As to the last item the learned judge instructed the jury correctly that if it was true it was such a breach of trust as would prevent a recovery. But as to the other matters the jury were told without qualification that “ his being drunk while off duty would not be such misconduct as would prevent his recovery.” This was much too broad. He might never be actually drunk on duty and yet have been so drunk while off, as to be incapable of the faithful and efficient performance of his work, and the testimony tended to show that that was the case here. There is no fixed rule which allows the court to say as matter of law that drunkenness off duty is or is not a sufficient cause for forfeiture of wages. The test for that is the faithful and proper performance of his work, and that is a question of fact to be considered with all the circumstances. Again, in regard not only to drunkenness but also to reckless driving and using the team for other people’s work, the jury were told “ unless his conduct was general, or frequent, or habitual, it would not be such as would prevent his recovery.” This is not the law. A single instance of such misconduct may be sufficient. An employer is not bound to wait until his team is spoiled, before discharging a reckless or malicious or even incompetent driver. So a single use of the employer’s team for other people’s work may be a serious breach of duty, or may be only a piece of neighborly reciprocal service of which no just complaint can be made. There is no fixed legal rule on the subject. It is a question of fact. The law requires of an employee diligent and faithful performance of his work, with due and reasonable regard for his employer’s interest at all times while in service. The performance or breach of this duty, and the right to his wages therefor, must be determined in each case by the evidence and the circumstances.

The levy under the fi. fa. should also be set aside, and the appellant relieved from the costs of it. At the time the fi. l’a. was issued there was an attachment sur judgment by a creditor of the plaintiff, of which plaintiff had notice. The defendant, as garnishee in that attachment, was entitled to an opportunitj1to protect himself. Whether plaintiff’s claim against defendant was exempt from attachment was a question the latter as garnishee was not bound to decide at his own risk. Plaintiff could have gone into court and tested that, on a rule to dissolve the attachment, but his conduct in paying the jury fee, entering judgment and issuing a fi. fa. three days after service of the attachment, shows an intention to harass the appellant, which the court should not have permitted to be successful. Getting the attachment out of the way subsequently by assignment to Mr. Everitt did not cure the improper imposition of costs on appellant by the fi. fa.

Judgment reversed and venire de novo awarded.