Cooper v. Denver & Rio Grande Railroad

39 P. 478, 11 Utah 46, 39 P.R. 478, 1895 Utah LEXIS 35

• Court: Utah Supreme Court
• Decided: January 28, 1895
• Docket: No. 541
• Status: Published

Opinions

Mereitt, O. J.:

In this case the plaintiff sued to recover a balance due Dim for salary while in the employment of the defendant 'in its express business in Salt Lake City. The defendant •claimed that plaintiff was not employed during the month ■of February, 1891, and also set up a counterclaim against the plaintiff, alleging that a shortage amounting to $444.9' •occurred in the company’s Salt Lake office while plaintiff was in its employment, through the negligence of the plaintiff. The jury rendered a verdict for plaintiff for the full amount of his claim. A motion for a new trial was made and overruled. From the order overruling the motion ■for a new trial, defendant appeals.

The defendant claims that the court erred in charging the jury that “ it appears that he [the plaintiff] went into their [defendant’s] employment about the 1st of November, 1890, and remained there until the last of February, 1891. Attorney for defense (interrupting): Last of Janu.ary. The Court: According to the plaintiff’s claim he remained there until the last of February, 1891.” This was ^ statement by the trial court of the position taken by plaintiff. The court did not state this as a fact proved. The jury was not misled.

It is claimed that the court erred in charging the jury that “the defendant company admits the employment,^and also acknowledges that they owe him .for these two months, in their correspondence.” The plaintiff testified that he-worked for defendant the full month of February. Plaintiff' was allowed to introduce his exhibits without objection. These exhibits were letters received from- the superintendent-of the defendant company, in which the employment is-admitted, and in which the full salary is allowed. Defendant claims on the appeal that these letters were written with a view to a compromise. No objection was made to-this introduction of the exhibit on this ground. Furthermore, there is no evidence in the record tending to contradict the statements of the. court contained in this charge-to the jury. It is also claimed that the plaintiff was responsible for the shortage in the office. This fact was-controverted. Plaintiff had two superiors over him. He-acted under their direction. He was not responsible for the business methods of the office. The record shows that-he performed his duties faithfully. At least the jury thought so. The evidence was conflicting. The jury decided this issue for the plaintiff. This court will not disturb the decision. We see no error in the record. The» judgment of the lower court is affirmed with costs.

SMITH, J., concurs.