O'Neil v. Schneller , 63 Pa. Super. 196 ( 1916 )

Opinion by

Kephart, J.,

An employee, engaged for a given term, to charge the master with liability for wrongful discharge, must have rendered faithful service and have so conducted himself toward his fellow employees, and others who are brought in contact with him, as not to interfere with his master’s business or with his or his fellow employees’ usefulness in the proper discharge of their duties: Hand v. Clearfield Coal Company, 143 Pa. 408; Matthews v. Park Bros. & Co., Lim., 159 Pa. 579. Where the evidence sustaining a justification for discharge is disputed, the question of justification is for the jury, but where the facts are undisputed or admitted, it becomes one of law for the court: Carson v. Hosiery Co., 15 Pa. Superior Ct. 476; Peniston v. John Y. Huber Co., 196 Pa. 580. The appellants offered evidence of abusive, profane and disrespectful language used by the appellee to his superior and to the men directly under him, causing his superior officer and those men to quit the appellants’ service. It was also shown that the appellee was an incompetent workman. Fully one-third of the clothing cut by him was returned for alteration. These charges were denied by the appellee. The jury should have been instructed that if these charges were true the appellants would have been justified in discharging the appellee. There is no condition of service so menial that would warrant the use of language here used and, if true, its inevitable result must have been trouble in the appellants’ establishment. The appellee denies these statements, some inferentially, others directly, and the question of credibility was for the jury.

The court instructed the jury to take the conduct of the plaintiff, his language, demeanor, and behavior when in the employ of the defendants, and say whether he was reasonably obedient and subordinate; that the burden was on the defendants to prove that he was disobedient and insubordinate “to such an extent as to injure the defendants.” This imposed too heavy a burden on the defendants. It was not necessary for the defendants to show that the appellee’s conduct caused them to suffer any loss. A master is not compelled to keep an employee, hired for a given term, in his service until the master’s business has suffered pecuniary loss, where the employee is disobedient and quarrelsome with coemployees. It is impossible to measure the damage which such employee might cause to the master’s business through loss of custom and other avenues that may be unknown to the master. When the master is justified in believing that the employee’s conduct is such that an injury or loss to the business or a disorganization of the affairs is likely to follow from such conduct if it is permitted to continue, the master would be warranted in discharging the employee. The effect of the trial court’s charge was to cause the defendant to show an actual loss. In this the court erred and the error was not cured by any point submitted or in, the charge as a whole. The third assignment of error is sustained.

The fact of discharge was denied. The substantial point of difference in the testimony was whether the plaintiff, in his endeavor to secure other employment, was required to return in two weeks, or had he unlimited time in which to secure employment, and was four weeks an unreasonable length of time to be absent. When he returned at thé end of four weeks his place had been filled and he was refused employment. Under the plaintiff’s version of the conversation with Taylor, these questions were for the jury. The first and second assignments are overruled.

The judgment is reversed and a venire facias de novo is awarded.