Bass Furnace Co. v. Glasscock , 82 Ala. 452 ( 1886 )

SOMEBiVILLE, J.

— 1. The first portion of the charge given by the court, to which exception is taken, raises the inquiry, under what circumstances an employer is justified in discharging an employee from his service on the ground of drunkenness. The plaintiff was employed by the defendant company, to reduce to charcoal, or, as expressed by the witness, to “coai” the wood on a tract of land owned by the company, for which he was to be paid wages at the rate of fifty dollars per month. The evidence tends to show that the plaintiff, a short while before his discharge, was drunk on premises of the defendant, where an iron furnace was in process of operation, about four miles away from “the coaling,” as it is called, and, while so intoxicated, he there “raised a disturbance, and had a fight with a man.” At another time, he was seen “drunk, in a wagon with some negro women, going towards the coaling.” This is all that is shown by the evidence bearing on this point, no details being given. The court charged the jury, that “the fact that the plaintiff was drunk once, or a number of times, at the furnace or elsewhere, during his employment under the contract, is no evidence against plaintiff’s right of recovery, unless drunkenness incapacitated and caused the plaintiff to fail in his part of the contract.” Is this a correct statement of the law on this subject?

To justify an employer in discharging a servant, or employee, the rule, no doubt, is, that the servant must have been guilty of conduct which can be construed to be a breach of some express or implied provision in the contract of service. It seems to be settled, that it is an implied part of every contract of service, that the employee will abstain from habitual drunkenness, or repeated acts of intoxication, during the period of his employment. If he be guilty of this indulgence, his conduct will justify his dismissal. — 2 Addison on Contr. (Morgan’s ed.), $ 890; Wise v. Wilson, 1 Car. & 31 662; 2 Parsons on Contr. 36, note (f); Gonsolis v. Gearheart, 31 Mo. 585; Huntington v. Claflin, 10 Bosw. (N. Y.) 262. There may be circumstances, however, under which a single act of drunkenness would warrant a servant’s discharge ; as, for example, in the case of a minister of the gospel, where the act might bring personal reproach, and tends to degrade the moral standard of religion; or of a family physician, where it might result in negligence; or malpractice in pharmacy or surgery. — Wood on Master and Servant, § 111, p. 213. The same act when committed by a day laborer, in privacy, and when off duty, or on some rare occasion when great temptation was presented, might not be a sufficient excuse for his discharge. The rule is stated by a recent author to be, that “intoxication, while in service, is generally a good excuse for discharging a servant, particularly when it is habitual, and interferes with the discharge of his duties, or will be likely to. But it is held, that as to whether it is to be regarded as a proper excuse, depends upon the occasion.” — Wood on Master and Servant, § III, p. 213. We do not doubt that public drunkenness of any employee, while in the service of the employer, and manifesting itself in boisterous and disorderly conduct, either towards the employer or third persons, is such misconduct as to constitute a violation of the stipulation, implied in every contract of service, that, the employee will conduct himself with such decency and politeness of deportment as not to work injury to the business of the employer. This he can do by a single act of drunkenness, which may tend to offend the reasonable prejudices or tastes of the public, or impair their confidence, or render him disagreeable in social or business intercourse. The drunkenness of employees may well deter the patrons of any business establishment from continuing their business intercourse with it, especially when social contact is frequently necessary to its consummation. It may prove, also, equally offensive to the master or employer, who may justly regard sobriety as an indispensable element of efficient service. The charge of the court laid down the rule, that no drunkenness justified the plaintiff’s discharge, unless it incapacitated him, and caused him to fail in the performance of his part of the contract. This, under the principles above declared, was erroneous, and must work a reversal of the cause. We may add, that the act approved February 17, 1885, entitled “ An act to prevent public drunkenness,” and making it a misdemeanor under certain circumstances, has no bearing on this case, having been passed after the present alleged cause of action.

2. It was not competent for tire witness Brandt to testify, that the plaintiff so mismanaged the business, in which he was engaged, as to cause a loss of a large sum of money to the defendant, estimated at two thousand dollars, or any other amount. This was a mere matter of opinion of the witness, and was properly excluded from the jury. Losses and profits in business, moreover, are dependent upon so many ever changing and variable contingencies, unconnected with, skillful management, that the. existence of the one or the other, standing alone, affords no reasonable presumption as to the degree of skill or negligence with which a business is conducted. When labor and materials are high in price, and the products of manufacture are low, losses may occur even with the best possible management; and so, when the converse of these propositions exist, large profits may result, despite the most unskillful management. For this reason, the proposed evidence was objectionable for irrelevancy.

3. The court did not err in allowing the plaintiff, when introduced as a witness in his own behalf, to state that, “according to his best judgment,” he delivered to the defendant four hundred bushels of coal per day, — the amount called for by the terms of his contract of service. Quantity, like value, time, distance, and some other like matters, is one of the subjects in reference to which even a non-expert witness may express his opinion, when based on personal observation ; no better evidence being generally obtainable as to such matters, than mere approximate estimates, based on judgment or opinion.

We find the other rulings of the court to be free from error.

Reversed and remanded.