Rosenberger v. Pacific Coast Railway Co.

The Court.

This cause was tried by the court and a jury, the plaintiff had judgment, and the defendant appeals therefrom and from an order denying a new trial.

The plaintiff claimed that he was employed by the defendant as an accountant for the period of one year commencing November 24,1893, at a salary of eighteen hundred dollars per annum, payable in monthly installments of one hundred and fifty dollars, and that he was discharged without cause March 24, 1894. This action was commenced July 17,1894, to recover three months’ salary, from March 24 to June 24, 1893, amounting to four hundred and fifty dollars, and for that sum he recovered judgment.

The defense was that the employment was not for any definite time, and that his discharge was justifiable because of his failure to give bond for the faithful discharge of his duties.

Prior to the employment in question plaintiff was employed in a similar capacity in the offices of the Union Pacific Railway at Omaha, and had made an application for employment to the auditor of the Oregon Improve *316 ment Company, with which company defendant is connected. 0. 0. Johnson, defendant’s superintendent, wrote plaintiff November' 4, 1893, to know whether he was still an applicant, and for information as to experience, salary required, etc. To this letter plaintiff replied, saying, as to salary, that it should be worth eighteen hundred or two thousand dollars a year. To this Johnson replied by telegraph, saying: “Yours ninth. Salary eighteen hundred. Change immediate if possible. Could probably arrange transportation-Wire earliest date.”

Plaintiff arrived at San Luis Obispo the night of November 24th, and on the morning of the 25th talked with Mr. Johnson an hour and a half, but plaintiff was unable to state with any particularity what was said, but, as he expressed it: “As near as I can give it, we arrived at an understanding—to furnish me one year’s employment upon satisfactory performance of my duties which I had undertaken. .... I say, that as near as I can recollect, we arrived at that understanding.”

Mr. Johnson-testified that in this conversation nothing was said as to salary or the term for which he was employed, but that it related wholly to the duties he was to perform.

Though plaintiff was paid monthly, up to the time of his discharge, at the rate of one hundred and fifty dollars per month, the correspondence constituted a hiring for a year. Section 2010 of the Civil Code provides: “A servant is presumed to have been hired for such length of time as the parties adopt for the estimation of wages. A hiring at a yearly rate is -presumed to be for one year; a hiring at a daily rate, for one day; a hiring by piecework, for no specified time.”

The payment by the month, at the monthly proportion of the. yearly rate, would not of itself he sufficient to change the contract to a hiring by the month; nor would the custom of the defendant, or of all railroad companies, to hire by the month convert the contract created by the correspondence between the parties, *317 which under the code constituted a contract for a year, into a contract by the month. If the correspondence had not fixed the term for which the plaintiff was hired, section 2011 of the Civil Code, as well as the custom, would have made a hiring by the month. Upon this point the instruction to the jury was right, and the verdict justified by the evidence.

The second defense, viz., the failure of the plaintiff to give a bond for the faithful discharge of his duties, -was not established at the trial. This was an affirmative defense, alleged by the defendant in its answer, and, unless established by evidence, -would not prevent a recovery by the plaintiff. The appellant does not claim that the giving of a bond was originally made a condition of the employment, or that any reference thereto was made in the correspondence between the parties prior to the hiring, or until after the plaintiff Irad entered upon the discharge of his duties, but alleged in its answer that there was a general usage among railroad companies to require bonds from those of their employees whose duties require the handling of money, and that the plaintiff was aware of this usage, and contends from this that it entered into and formed a part of the contract of employment. To establish this defense it was, therefore, necessary for the defendant to show, not only the existence of the usage, but also that the plaintiff was aware of its existence at the time of the hiring. The record, however, fails to show that any evidence of this nature was presented to the jury. Mr. Johnson, who was the only witness on the part of the defendant at the trial, testified that the plaintiff was discharged for the reason that he failed to furnish such a bond, but no question was asked him on behalf of the appellant respecting the usage of railroad companies in requiring bonds to be given, or the knowledge of the plaintiff of such usage. Upon his cross-examination, after he had stated that there was ho other contract with the plaintiff with reference to the employment-than the correspondence which was in evidence, he was *318 asked what right he had to require him to give a bond, to which he replied: “ Because he in his letter showed that he was sufficiently familiar with railroad usage to know the necessity of a bond in connection with his duties.” This is the only evidence in the case with reference either to the usage or the knowledge of the plaintiff, and falls far short of establishing either. The letter referred to is entirely silent upon this subject, and gives no ground for inferring either the existence of the usage or the knowledge of the plaintiff.

The request of the plaintiff that he give a bond, which was made by the defendant after he had entered upon his duties, did not make it one of the terms of the employment, nor were those terms varied by the fact that in pursuance of that request he filled out the blank application which was handed him.

The court properly refused the instruction asked by the defendant. While it is the duty of an employee who has been wrongfully discharged to seek other employment, and thus diminish the damages sustained by him, he is not required, as a condition of recovery, to show that he has made such endeavor and failed. The burden is on the defendant to show that he could by diligence have obtained employment elsewhere. Whatever compensation may have been received in such employment is also to be shown by the defendant in miiigation of damages: otherwise the damages will be measured by the salary or wages agreed to be paid. (Sutherland on Damages, sec. 693; Costigan v. Mohawk etc. R. R. Co., 2 Denio, 609 ; 43 Am. Dec. 758 ; Howard v. Daly, 61 N. Y. 362 ; 19 Am. Rep. 285 ; Utter v. Chapman, 43 Cal. 279 .)

The judgment and order are affirmed.

Hearing in Bank denied.