Arkadelphia Lumber Co. v. Asman , 85 Ark. 568 ( 1907 )

Hart, J.,

(after stating the facts.) Appellant contends that the first instruction given at the request of appellee is erroneous because the president of appellant company did not have authority to employ appellee for a year.

The section of the by-laws referred to is section one, article five, and is set out in the statement of facts. We think a fair interpretation of the by-laws referred to give the president that power, and that the instruction is correct. Tliis is the construction that has been placed upon it by the company; for it is conceded that Pierce was hired by the year, by direction of the president; and that he had worked, for the company for seven years, by employment from year to year. The president of the company says that he had the authority to hire appellee for a year, but claims that he did not do so.

Appellant now contends that the by-laws mean that appellee held his position at the pleasure of the board of directors. It is not claimed that the board authorized or ratified the action of the president in discharging appellee. Conceding appellant’s construction of the by-laws to be correct, appellee was wrongfully discharged, and there was no prejudice to appellant in the instruction. Appellant can not complain of an error that was not prejudicial to it. Kelly v. Keith, 77 Ark. 31.

Appellant asks for a reversal because of the admission of F. R. Pierce’s testimony. Pierce was the person to whose position appellee succeeded. His testimony was to the effect that he had been employed by the year, and had worked for appellant for seven years. «His testimony was admitted as tending to show the custom of the company in the employment of persons to fill that position. There being no express contract of hiring for a definite period of time, his .testimony was competent for that purpose.

Counsel for appellant contends that there was error in giving the second instruction. He claims that there was not sufficient testimony to go to the jury to prove .a custom or usage as to the employment of a sales manager. The testimony on this point is meager, but there was evidence tending to show the existence of the custom.

The appellee testified that Mr. Grayson told him that he was employed to succeed Pierce. Both Pierce and Werner, vice president of the appellant company, told him before he accepted the employment that it was by the year. Pierce testified that he had been employed by Mr. Werner, and that he was employed by the year, and that he had worked for appellant seven years. Grayson admitted that Werner had the authority to fill the position by the year, and stated that he did not know whether or not Werner had employed Pierce by the year. This evidence does not go to the extent of proving a general custom, but is sufficient to establish a particular custom. All that is contended for in this case is that the evidence establishes the custom of appellant to hire by the year employees to fill the position occupied by appellee, and the testimony is sufficient for that purpose. We think this was sufficient testimony to warrant the court in giving the instruction:

“An instruction is not abstract if there be any evidence from which the jury might infer the existence of the fact supposed; and in such case this court will not decide whether the evidence is sufficient to warrant the jury in so finding.” McNeil v. Arnold, 22 Ark. 477.

Appellant also contends that this instruction was erroneous because the custom was not pleaded. The foundation of the suit was an express contract of employment of appellee by appellant. Appellee contends that he was hired by the year, and in support of his contention, among other things, adduced testimony tending to show that it was the custom or usage of appellant to employ persons to fill positions such as he filled for the period of one year. This, being a part of the evidence in the case, was not necessary to be pleaded. McCarthy v. McArthur, 69 Ark. 313.

Appellant objects that the court allowed appellee to make an answer not responsive to a question asked him on cross-examination. The question was, “Did that mutual understanding (referring to appellee’s duties) grow out of that conversation that you had there at Mr. Grayson’s residence — thaf you were to come here and succeed Mr. Pierce ?” Witness answered: “That and my employment with the Wooden Gutter Company and the term under which I was employed by them, with which I supposed Mr. Grayson was fully familiar.” That part of his answer with reference to his employment with the Wooden Gutter Company was asked to be excluded. The court held that it was a part of the explanation of what occurred, but offered to permit the withdrawal of both the question and answer. Appellant declined to withdraw the question, and did not ask to put it in a different form, so as to eliminate that part of the answer he deemed objectionable. There must be some discretion in a trial court in matters of this kind, and we can not say that the.court abused its discretion in holding that the answer did not go beyond the scope of the question.

There are various other errors assigned by the appellant, but they all go to the sufficiency of the evidence,

It is not claimed that there was an express contract of hiring for a definite period, but it is claimed that all the facts and circumstances detailed before the jury in regard to the subject-matter of the controversy tend to show that the hiring was by the year, and not at the pleasure of the board of directors of appellant company. This was fairly presented to the jury in the sixth instruction given by the court; and whatever may-be our opinion as to the weight of the evidence, we think there was testimony to support the verdict of the jury, and, under the ■ repeated decisions of this court, it will not be disturbed.

Affirmed.

Wood, J., dissents.