Dunkell v. Simons — 27 N.Y. St. Rep. 811

Majority

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Albert Dunkell, Resp’t, v. Henry F. Simons et al., App’lts.^[1]

(New York Common Pleas, General Term,

Filed December 2, 1889.)

Headnote

1. Master and servant—Disobedience of orders.

An order by a master to his salesman to submit to him offers for goods which are less than the prices marked is a reasonable one and the jury should be so instructed. It is error to leave the question whether it is reasonable to the determination of the jury.

2. Same—Discharge—Justified by intoxication.

It is error to charge that gross intoxication of a clerk will not warrant his discharge if it were produced by drinking liquor for sanitary reasons. This fact furnishes no palliation for the offense.

3. Same—Condonation.

The mere fact that the master did not at once discharge the clerk does not necessarily show a condonation of the offiense; but it is for the jury, on all the circumstances, to determine whether it had been condoned.

Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of plaintiff.

Plaintiff, who was in the employ, under a contract for a year, of Henry F. Simons & Co., produce commission merchants, was discharged in January, 1888, and brought an action in the city •court to recover the balance of salary for the unexpired term of his contract The defendants answered, justifying the discharge on the ground of the plaintiff’s refusal to obey their orders to sub

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mit to them offers received by him for goods of the defendants-which were less than the prices marked on the goods, and on the further ground of the intoxication of the plaintiff during businsss horns, a few days prior to the date of his discharge.

On the trial the court left it to the jury, under exception from the defendants, to say whether the orders of the defendants were reasonable and proper, and further charged the jury that if they should find that the plaintiff’s intoxication was caused by liquor taken for medicinal purposes, as claimed by him on the trial, that such intoxication was no justification of the discharge; to which the defendants also excepted. On appeal from the judgment entered on a verdict in favor of the plaintiff to the general term of the city court, the judgment was affirmed, the court holding" that the question of the reasonableness of the orders was properly submitted to the jury, and that the defendants by retaining plaintiff in their employ after the offense of intoxication condoned the-offense.

Henry B. B. Stapler, for app’lts; Henry M. Parsons, for resp’t.

The plaintiff, as the servant of the defendants, was bound to obey the lawful instructions they gave as to-the manner in which he should perform the work that they employed him to do. It was no excuse for his disobeying his masters’ orders that he thought that his dignity would be imjjaired in the eyes of some customers if he should, in obedience to the defendants’ commands, apply to the defendants for permission to sell goods at a lower figure than that at which he had first offered them. The defendants had a right to fix the prices upon their own goods, and to insist that any offer of a smaller price should be submitted to them, that they might determine whether or not it would be better to accept it than to have an intending purchaser leave without buying. A clerk who is too dignified to obey such an order places his employer in a most embarrassing position, for the clerk must then usurp the powers of his employer and reduces the prices as he pleases, or else the price first asked must be insisted upon even though the customer is, by a refusal to shade the prices, lost to the store forever. A clerk who refuses to obey such instructions ought not to complain if his employer has no further use for him. It was error to leave it to the jury to determine whether such commands of the employer were or were not reasonable. The law adjudges them to be reasonable, and the judge ought so to have instructed the jury.

It was also error to tell the jury, as the judge did in substance tell them, that the gross intoxication of the clerk would not warrant the employer in discharging him if it were produced by drinking liquor for sanitary reasons. No such palliation for drunkenness in a clerk while on duty is known to the law. It would be most unfortunate if a clerk, who by drunkenness totally incapacitated himself for the performance of his duties, could compel his master to retain him in his service by setting up the excuse that his inebriety was the result of an attempt to cure the malaria with whiskey.

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It is for the jury, and not for the court, to determine whether •or not the defendants had pardoned and condoned the offense of drunkenness; and the court should tell, the jury that it did not follow that the offense was condoned because the employer did not discharge the clerk on the spot; that there must be evidence of condonation, and that the circumstances must show that the •employer had forgiven the clerk and that the delay of the employer in discharging him was owing to forgiveness of the delinquency, and not for any other good reason.

The judgment should be reversed, and a new trial ordered, with costs of the appeal in this court to the defendants to abide the event.

Larremore, Ch. J., and Daly, J., concur.