Borden v. Day

1946 OK 121, 168 P.2d 646, 197 Okla. 110, 1946 Okla. LEXIS 476

Opinions

DAVISON, J.

Maybell Day, hereinafter referred to as plaintiff, commenced this action in .a justice of the peace court in Tulsa county, to recover from R. F. Borden, Jr., and LeRoy Borden, copartners, d/b/a Borden Restaurants, hereinafter referred to as defendant, a certain sum for wages alleged to be due her as a chef in one of defendant’s restaurants. Upon hearing of the cause in the justice court, plaintiff recovered judgment in the sum of $11.66 and costs. Thereafter defendant appealed the case to the court of common pleas. After a trial de novo it was agreed by and between the parties that the court might take the case out of the hands of the jury. Thereupon, after recalling the plaintiff for further examination, the court took the case under advisement and thereafter rendered the judgment for her in the same principal amount she recovered in the justice court. From said judgment, defendant has perfected this appeal.

The controversy arose after plaintiff quit her job with the defendant. The amount involved represents two days’ wages at her agreed rate of pay of $35 per week. After plaintiff quit on the same day that she notified defendant of her intention to do so, the defendant claimed the right to deduct two days’ pay from the total sum due her for services in accord with a provision set forth on the application form which plaintiff signed when applying for the position, as follows:

“Applicant agrees that after he becomes employed he will give forty-eight hours notice of his intent to leave erqj-ployment or forfeit two days pay.”

The plaintiff asserts that the trial court was correct in holding this application for employment invalid as a binding written contract between herself and the defendant because of its lack of mutuality. Counsel for the defendant concedes that said paper or instrument “is not a contract in the usual sense of the word,” but takes the position that such was not necessary in order for plaintiff to be bound by said writing. He asserts that merely as a rule of her employer, the quoted provision was binding on plaintiff if she had notice of it. That an employer may promulgate reasonable rules to govern the service of his employees cannot be questioned, and it is an implied condition of the employee’s service or employment that he or she will obey such rules. 35 Am. Jur. 514, § 83; 39 C. J. 132, § 173. An employee, however, cannot be penalized for the violation of a rule of which he has had no notice and which he has not agreed to observe. Id. and 35 Am. Jur. 503, § 72. And whether the employee had actual knowledge of the rule in question and with such knowledge, either expressly or by conduct from which the same conclusion can be implied, agreed to comply therewith, are questions to be resolved from the facts and circumstances of the particular case. See 35 Am. Jur. 703, § 280, and annotation to Nolan v. New York, N. H. & H. R. Co., 70 Conn. 159, 39 Atl. 115, 43 L. R. A. 305, 357; Harmon v. Salmon Falls Mfg. Co., 35 Me. 447, 58 Am. Dec. 718, and Matthews v. Industrial Lumber Co., 91 S. C. 568, 75 S. E. 170, Ann. Cas. 1914A, 45.

In the present case, the fact that plaintiff signed the application on which the defendant’s rule with reference to the notice it required of its employees before leaving its employment would ordinarily raise a presumption that she had knowledge of the rule, if the same criteria were applied to it that applies to formal contracts, deeds and other instruments of such effect and solemnity. But the presumption that one who has had the opportunity to read or become familiar with a contract he has entered into has done so may be overcome by a showing of actual facts and circumstances to the contrary. There are reasons founded upon public policy and the sanctity of contracts for requiring a strong showing of fraud, duress, mistake or some equally valid excuse for such ignorance, when a party seeks, on the ground of ignorance of its contents, to avoid his obligations under a solemn contract he has admittedly entered into. 12 Am. Jur. 629, § 137; 13 C. J. 370, § 249, note 25. On the other hand, an agreement signed without negligence under the belief that it is an instrument of a different character is void. And in the instance of papers or writings having neither the form nor appearance of a contract, to put a person signing or accepting same upon notice that such action would have con sequences of an obligatory character, the presumption above referred to has not been regarded as a formidable obstacle to justice. 13 C. J. 278, § 77,17 C. J. S. 377, 487, §§ 31, 137; 12 Am. Jur. 628, § 137. Especially should this be true where the writing was drawn by and is for the benefit of the party seeking to enforce it Therefore, we do not think that in the present case unusual or overwhelming weight should be given the fact that plaintiff signed the application for employment upon the issue of whether or not she had knowledge of defendant’s rule as to notice before quitting. Besides not being a contract in form, as conceded by counsel, the application was not such an instrument as usually has for its principal purpose the serving of prospective employees with notice of the defendant’s rules and regulations. In general, the application form signed by plaintiff was only a questionnaire. Its principal purpose and fully three-fourths of its volume was used for obtaining answers to written questions appearing thereon that would apprise her prospective employer of plaintiff’s qualifications for the position she was seeking. From the character and form of the instrument, it is reasonable to believe plaintiff might have answered all the questions on the application form and affixed her signature thereto without noticing the provision in question. And that, in short, is what she testified. It also appears that the application was signed in June and that plaintiff did not go to work for defendant until the latter part of October. Plaintiff testified positively that when she finally went to work there was nothing said about the application and that she did not know the provision concerning notice was in it. It further appears that plaintiff held her position only a few days, quitting on November 1st, and she testified that during that short time one other employee left defendant’s employment, that said employee was discharged, and was given no notice of the termination of her employment by defendant. She further testified that after quitting in the middle of the week she went back on Friday, the restaurant’s next regular pay day, to get the pay due her and it was not until a pay check was delivered to her and she called Mr. Borden’s attention to the fact that it was not in full payment that she learned that defendant required its employees to give 48 hours’ notice before quitting and reserved the right to withhold two days’ pay for failure' to comply with such requirement. In contradiction of plaintiff’s testimony, defendant’s manager, Evelyn Morrison, testified that at the time plaintiff signed the application, she explained to her thoroughly the provision with reference to notice. On direct examination, Mr. Borden testified that he had no notice whatsoever that plaintiff was going to quit and didn’t know she had, until she failed to report for work on November 2nd. On cross-examination he seemed to remember plaintiff coming to his office the day she quit and informing him she was going to. When recalled for further examination, after his manager had testified, he claimed that when she came to his office, he reminded her that she had agreed to give two days’ notice if she quit, and that he tried to persuade her to stay. Plaintiff had testified that she went to Mr. Borden’s office on that occasion and that he tried to persuade her to stay, but denied positively that at that time anything was said about her giving, or being under any duty or obligation to give, any other or further notice that she was quitting.

Thus it will be seen that on the basis of plaintiff’s testimony standing alone, one could only conclude that though she signed the application she did not read the provision thereon with reference to the 48 hours’ notice and that she was never otherwise apprised that defendant had such a requirement, until after she had quit, and that consequently her working for defendant could not be considered an acquiescence in or agreement to abide by such a rule or regulation. While it is true that the portions of her testimony most vital to the issues involved were disputed by the other two witnesses in the case, they, like plaintiff, were persons who from the very nature of their positions might very naturally have been partisan in their feelings and views. It was within the province of the trier of the facts to weigh the testimony as a whole, to consider many factors bearing upon the veracity of the witnesses and the credibility of their testimony and to accept the testimony of the plaintiff as true. McIntosh v. Funge, 210 Cal. 592, 292 P. 960, 74 A. L. R. 420; Brooks v. Mitchell, 163 Md. 1, 161 Atl. 261, 84 A.L.R. 547; City of Guthrie v. Shaffer, 7 Okla. 459, 54 P. 698.

The judgment of the trial court is supported by competent evidence and is affirmed.

GIBSON, C.J., and OSBORN, BAY-LESS, and ARNOLD, JJ., concur. HURST, V.C.J., and RILEY and CORN, JJ., dissent.