May v. New York Motion Picture Corp.

'This is an action by a motion picture actress, employed by defendant, to recover for an alleged wrongful discharge, alleged to have occurred about twenty-one weeks before the expiration of the term of her employment.' Prom a judgment for plaintiff for $2,123.60, based on the verdict of a jury, defendant appeals.

Plaintiff and defendant entered into a written contract, which, so far as material to our purpose, is as follows: “The party of the first part [defendant] hereby engages the party of the second part [plaintiff] as motion picture actress to enact roles in the motion picture productions of the party of the first part in its company and such companys as the party of the first part may hereafter form, for a period of one year, commencing June 16, 1915, and ending June 16, 1916, for a salary of $75.00 weekly. . . . The party of the second part agrees to abide by. the rules and regulations of the producing company to which she may be assigned, and to report for rehearsals promptly after notification to do so, and to direct or act in such parts and at such places as she may be instructed.” The contract, as modified by a subsequent written agreement, likewise provides that the “party of the second part [plaintiff] further, for the consideration of $1300.00, which is to be paid in weekly installments of $25.00 by the party of the first part, does hereby grant an option to the party of the first part [defendant] to continue this contract for the following year at a salary of $125.00 weekly, commencing June 16, 1916, and ending June 16, 1917.”

Plaintiff commenced work for defendant on June 16, 1915, at defendant’s camp or studio at Inceville, in Los Angeles County, about three and a half miles from the city of Santa Monica, and continued in its employ until discharged on January 27, 1916. During all this time plaintiff made her home at Santa Monica. The last day she worked for defendant was December 24, 1915. On that day defendant finished a picture in which plaintiff had been cast, and in which she had worked for some weeks. Except when specifically notified and sent for, plaintiff never went to the camp or studio, except weekly to draw her weekly pay check. Witnesses for defendant testified that prior to December 24, 1915, and during the time when plaintiff was acting parts in which she had been cast, she frequently arrived on the ground so late that her tardiness caused ex

On January 7, 1916, defendant’s manager sent for plaintiff and told her the company was cutting down expenses, that defendant might not be able to continue giving her leading parts, that she might have to take second parts, and suggested to her that she might think it to her advantage to take her two weeks’ salary and return to New York. The next day plaintiff wrote defendant’s manager that she fully realized that the written contract required her to act in such parts as might be assigned her, and that she expected to comply with her agreement in all particulars.

On January 22, 1916, defendant caused to be delivered to plaintiff a letter—written and signed on the 13th—which is as follows:

“Miss Lola May:

“In the future it will be absolutely necessary that you report at the studio every morning not later than 8:30 A. M., irrespective of whether, you are cast or not, and not absenting yourself when you think you are not cast, as you have taken upon yourself to do in the past.

“Yours very truly,

“E. H. Allen, Manager.”

This order we shall designate as the order of January 22, 1916,—the date of its delivery—though it was written and signed on the 13th. Whether this order is consistent with the written contract of employment, and whether it is a reasonable order, are the principal questions presented on this appeal.

It was stipulated at the trial that defendant had no printed general rules or regulations. Nor is there any evidence to show that defendant had any kind of general rules or regulations applying to actresses in its employ, enacting roles or parts in the producing company such as plaintiff was employed to enact, and requiring such actresses to report at defendant’s studio every morning irrespective of whether they were cast in a part or not. Indeed, defendant does not claim ever to have promulgated any such general rule or regulation. On January 24, 1916, plaintiff wrote defendant a letter acknowledging receipt of defendant’s order of January 22, 1916. In this letter to defendant

Plaintiff did not report at defendant’s studio on the twenty-fourth, twenty-fifth, or twenty-sixth days of January, 1916. She was discharged on January 27th. On January 24th she had been cast in a play called “Beatrice of St. Cecile,” but had not been notified thereof before her discharge on January 27th; although, according to defendant’s director, he would have liked to see her as early.as January 18th or 20th, in order to go over her part with her, but, according to the manager’s assistant, she could not be reached on the telephone at that time.

On cross-examination plaintiff testified that she did not make any attempt to go to defendant’s studio after, receiving the order of January 22, 1916, for the reason that, as she claims, her contract did not require her to report at the studio if she was not cast for a part. On January 27, 1916, defendant discharged plaintiff by delivering to her a letter which reads:

“Dear Miss May:

“This is to notify you that you have automatically discharged yourself by refusing to report to work for the past three days. You can obtain the salary due you by applying to our cashier.

“Yours truly,

“New York Motion Picture Corp.,

“By B. H. Allen.”

The court instructed the jury that it was for them “to consider whether the order for her to appear at 8:30 A. M. after the 22d, when she received that notice, was within the terms of the contract, and was a reasonable order under the circumstances.” This instruction was, we think, erroneous and clearly prejudicial.

[1] The relation of master and servant which, in contemplation of law, existed between these parties, cast certain duties upon plaintiff, as the servant, which she was bound to fulfill and discharge; the principal one was that of obedience to all reasonable orders of the defendant, the master, not inconsistent with the contract. “A promise

[2] Disobedience of a reasonable order is a violation of duty which justifies a rescission by the master of the contract of employment and peremptory discharge of the servant. (Jerome v. Queen City Cycle Co., 163 N. Y. 351 , [ 57 N. E. 485 ]; Peniston v. John Y. Huber Co., 196 Pa. 580 , [ 46 Atl. 934 ]; Von Heyne v. Tompkins, 89 Minn. 77 , [ 5 L. R. A. (N. S.) 524 , 93 N. W. 901 ]; School Directors v. Hudson, 88 Ill. 563 ; Standidge v. Lynde, 120 Ill. App. 418 ; Wiley v. California Hosiery Co., 3 Cal. Unrep. 814 , [ 32 Pac. 522 ]; Civ. Code, secs. 1981, 2000.) The law is thus summarized in Fraser on Master and Servant, page 71: “Where a servant deliberately violates his master’s orders, or refuses to obey them when given, he is clearly guilty of the grossest breach of contract. His duty is to obey the master in all things for which he became bound expressly, or in which obedience is implied from the nature of the service undertaken.” Any “willful” disobedience of an order that is reasonable and not inconsistent with the contract of employment is sufficient to justify the servant’s discharge. (Civ. Code, sec. 2000.) “Willful” disobedience of a specific, peremptory instruction of the master, if the instruction be reasonable and consistent with the contract, is a breach of duty—a breach of the contract of service; and, like any other breach of the contract, of itself entitles the master to renounce the contract of employment. Ac

[3] A “willful” disobedience is an intentional disobedience. It does not necessarily imply any evil intent on the part of the servant or malice toward his master. In civil cases, the word “willful,” as ordinarily used in courts of law, does not necessarily imply anything blamable, or any malice or wrong toward the other party, or perverseness or moral delinquency, but merely that the thing done or omitted to be done was done or omitted intentionally. It amounts to nothing more than this: That the person knows what he is doing, intends to do what he is doing, and is a free agent. (Benkert v. Benkert, 32 Cal. 470 ; Towle v. Mathews, 130 Cal. 577 , [ 62 Pac. 1064 ]; 40 Cyc. 944.) There are eases which -go to the extent of holding that to justify a discharge for disobedience of orders, the disobedience must be perverse, but these cases cannot be vindicated on principle. (McCain v. Desnoyers, 64 Mo. App. 66 . See Civ. Code, sec. 2000.)

[4] Whether the reasonableness of any particular rule or order given by the master to the servant is a question of law for the court or of fact for the jury, is a matter upon which the authorities- are not entirely harmonious. We think the correct doctrine, deducible from a consideration and analysis of many authorities, may be stated substantially as follows: Where the reasonableness of the master’s order depends upon undisputed facts, and the in

The questions, then, are, first, is the order of January 22, 1916, consistent with the contract between the parties? And, second, if it is, is it, under the circumstances that were detailed by defendant’s witnesses, clearly a reasonable order ? If these two questions must be answered in the affirmative, then it follows that their submission to the jury, in the form in which they were submitted in the instruction complained of, was prejudicial error.

[5] We see nothing in the contract with which the order can be said to be inconsistent. By her contract plaintiff engaged to “enact roles in the motion picture productions” of defendant. The order of January 22, 1916, did not require plaintiff to pérform service of a kind other than or different from that called for by her contract of employment, namely, the enactment of roles in motion pictures produced by defendant. The sole purpose of the order was to insure plaintiff’s presence at a certain place, near the spot where the pictures were being filmed, in order that she might readily and conveniently be notified of the times when she would be required to enact any role in which defendant might .see fit to cast her. By her written contract plaintiff, in effect, engaged to give defendant all her services as a motion picture actress during the whole of the year from and after June 16, 1915. There can be no doubt that if she had not expressly contracted “to report for rehearsals promptly after notification so to do,” defendant would have had the right to require her presence at or near

[6] Nor was the order unreasonable if, as testified by defendant’s witnesses, plaintiff frequently arrived on the ground late for rehearsals and for motion picture productions, and if defendant’s servants, at times when her presence was urgently needed in order that she might enact the roles in which she had been cast, had great difficulty in reaching her by telephone, in order to notify her that her presence was required. By her own conduct, if defendant’s witnesses have truthfully and accurately described the' conditions created by plaintiff’s habitual tardiness and the difficulties encountered in endeavoring to communicate with her upon occasions when her presence was needed, she herself has made the order a reasonable, if not a necessary one. Plaintiff’s place of abode at Santa Monica was three and one-half miles from the canyon in which defendant had its camp or studio. The available means for travel between the two places, particularly during the rainy season, was none too good. Defendant’s business was so conducted that it was necessary to commence work early in the morning, so as to take advantage of all possible sunlight. The other members of defendant’s large organization were, as a gen

[7] We conclude, therefore, that the order to report at the studio every morning -not later than 8:30 was consistent with the contract between the parties; that, if the circumstances were as described by defendant’s witnesses, the order was reasonable and fair;.and that the court erred in charging the jurors that it was for them to determine whether the order “was within the terms of the contract” and whether it “was a reasonable order under the circumstances.” The jury should have been instructed specifically that if it be true, as testified by defendant’s witnesses, that plaintiff was frequently tardy, and defendant, at times, had difficulty in reaching her by telephone in order to notify her to be present to enact her roles, then the order was reasonable, and a willful disobedience of its terms would be good ground for plaintiff’s discharge. Instead, the jury was, in effect, told that a willful disobedience of the order is not a defense to plaintiff’s action. In its charge to the jury the court gave this instruction: “If the defendant did not have any general rules and regulations applying to actresses in its employment, enacting roles and acting parts in its producing company, the same as plaintiff was enacting, which required such actresses to report at the studio of the defendant every morning not later than 8:30 A. M., irrespective of whether they were cast or not, and the defendant had not notified plaintiff to report for rehearsals on January 24th, January 25th, or January 26th, or any of such dates, and the defendant had not instructed the plaintiff to direct or act in any particular part or given

[8] Since the case must be remanded for retrial, it is necessary that we notice one other objection. Appellant complains of an instruction respecting the amount of recovery. The action was not simply to recover plaintiff’s wage of seventy-five dollars a week for the balance of her term of service. It was brought to recover damages for breach of the entire contract. Under her contract with defendant, plaintiff was to receive a salary of seventy-five dollars a week for her services as a motion picture actress and likewise one thousand three hundred dollars, payable in weekly installments of twenty-five dollars each, as a consideration for the optional right which she gave to defendant and which entitled it, at its option, to employ plaintiff for another year at an agreed salary. We shall assume, as contended for by defendant, that the contract is sever-able. That is, we shall assume that the agreement for services at a wage of seventy-five dollars a week for the first year is one agreement; that the agreement whereby plaintiff gave defendant the optional right to re-employ her for another year, in consideration of the sum of one thousand three hundred dollars, payable in equal weekly installments, is another and separate agreement; and that the aggregate of the amounts payable weekly to plaintiff during the first year, one hundred dollars, is the total amount payable under two separate and independent divisions of the contract. But, even so, if plaintiff is entitled to recover at all, she is entitled to recover for defendant’s breach of the contract as a whole, not merely for a breach of defendant ’s agreement to employ her for a year at a wage ' of

Judgment reversed.

Sloane, J., and Thomas, J., concurred.