Mitchell v. Toale , 1886 S.C. LEXIS 129 ( 1886 )

The opinion of the court was delivered by

MR. Chief Justice SimpsoN.

The plaintiff, respondent, was employed as book-keeper by the defendant, appellant, for the year 1884, to wit, from December, 1883, to December, 1884, at a salary of $800 for the year. On May 31,1884, the defendant dismissed the plaintiff, but in a short time after this dismissal, and before the plaintiff had obtained other employment, the defendant, finding that the books kept by the plaintiff had not been balanced, called upon the plaintiff to do this work, which plaintiff refused to do, except at the rate of $5 per day, which defendant declined to pay. The plaintiff afterwards obtained other employment, and upon the close of the year brought the action below, demanding judgment for three hundred and sixty-three dollars ($363). the balance due.him for the year’s salary, after deducting a payment of $438.37.

At the trial the defendant was allowed credit for the amount earned by the plaintiff since his discharge, $120, and also for a small amount due by plaintiff to defendant on the books, $38.39, which left $241.63 due plaintiff, for which sum a verdict was rendered in favor of plaintiff. The appeal rests upon the refusal of the presidinggudge to charge certain requests, and also upon his charge.

The defendant requested his honor to charge : “That if a servant employed by a master for a stipulated period be discharged by such master before the period expires, even wrongfully, but the master at any time thereafter require him to return to his service, or to perform any of the duties he had agreed to do, he is bound to do so, or else he cannot recover.” This his honor refused to charge as too general. He, however, in response to the request, charged that if the call upon the servant could fairly admit of the construction that the discharge is recalled, and that the servant is expected to go to .work again under the old contract, being restored to his old place, “he had a right to do so. But if he required of him particular work, which he claimed was left undone, that that would not relieve him from his obligations connected with the discharge.” The defendant also requested the judge to charge that “a promise to obey the lawful and reasonable orders of the master is implied by law. Any breach of his promise justifies discharge.” This his honor also declined, unless the request was qualified by the word “substantial”' — in other words, “that it was only a ‘substantial’ breach of the promise to justify a discharge.” The appeal assigns error to the refusal above, and to the response given to the first' request above.

We agree with the presiding judge, that the first request was too broad and general in its terms. A master dismissing a servant has no right to recall at any time and under all circumstances after dismissal, on pain of forfeiting all right of recovery. See the case of Saunders v. Anderson, 2 Hill., 486, cited by the appellant. In that case, where the general rule that the master had the right to exact or dispense with any portion of the time of the servant, and capriciously, if he chose, provided he inflicted no injury on the servant, was recognized, yet the court said that this rule must be understood with some qualifications; saying that the planter is not at liberty to drive off and recall at pleasure. If, in consequence of being improperly dismissed, the overseer engage in any other employment, he would not be bound to return. This being the law, the Circuit Judge did not err in declining the broad request made.

But we think the judge erred in the response which he made to this request. The contract between the parties being an entire contract for the year 1884, the defendant was entitled to plaintiff ’s services for that period, within the scope of his employment, and as was said in Saunders v. Anderson, supra, he had the right to exact from the plaintiff the performance of that service, or to dispense with said service, as he chose, even capriciously, or for any cause, so that he kept within the qualification above suggested. See, also, Wood's M. & S., 269. It appears that! the plaintiff, at the time he was called to balance the books, hadt not been engaged by others, and it was no injury upon him to be \ recalled to do this work. It was error, therefore, for the judge . to charge that the defendant had no right to recall the plaintiff, unless the plaintiff was to be restored to his former position.

The difference between the second request and the charge is so slight that the error assigned there hardly needs discussion. No doubt, the servant is bound to obey the lawful and reasonable orders of the master, within the scope 'of the business, and if he refuses to do so, a discharge would be justifiable ; and probably no order would be lawful and reasonable, unless at the same time it was substantial — that is, pertained substantially to the business. Mr. Wood says: “The servant is bound to obey all the master’s lawful and reasonable commands, even though such commands may, under the circumstances, seem harsh and severe, but the master has a right to manage his own affairs, and it must be a very extreme case in which a servant would be justified in refusing obedience to his orders.” Wood M. & S., 224, 225.

The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded for a new trial.