Geissendoerfer v. Western Horseshoe Co.

110 S.W. 640, 131 Mo. App. 534, 1908 Mo. App. LEXIS 473

• Court: Missouri Court of Appeals
• Decided: May 12, 1908
• Status: Published

Opinion

GOODE, J.

(after stating the facts). — This action was instituted before a justice of the peace on a statement of account for salary alleged to be due plaintiff.

“St. Louis, Oct. 1, 1905.

“Western Horseshoe Company, Dr.,

To Martin Geissendoerfer.

1905.

To six months’ salary from April 1, ’05, to October 1, ’05, at $85 per month, six months......................$510.00

By cash received...................... 81.70

$178.30”

The case reached the circuit court where it was tried before a jury and resulted in a verdict for plaintiff for $527.99. Defendant filed a motion for a new trial, which the court sustained on the ground that error had been committed in admitting in evidence all of a certain paper writing purporting to be a contract of employment between plaintiff and defendant, but which was not sued on or filed with the justice. The court held a portion of said paper, which related to the purchase of stock by plaintiff in the defendant company, was adapted to prejudice the minds of the jury in favor of plaintiff and against defendant. From the order granting a new trial this appeal was prosecuted. At the trial in the circuit court, defendant admitted plaintiff was employed to work for it by the month at a salary of $85 a month. His employment was to begin January 1st.' Plaintiff asserted he had worked until October, 1905, and sued for unpaid salary alleged to be due for the period from April 1st to October 1st, amounting to $510, on which a payment of $31.70 was credited. Defendant contended plaintiff was discharged May i, 1905, having been told during the previous April his services would not be required after May first. It should be stated that before the trial in the justice’s court the defendant had filed a written offer to allow judgment to go against it for the sum of $41. The position of defendant’s counsel is that the only issue of fact between the parties is whether or not plaintiff was discharged May first, or whether he continued in defendant’s employ until October first and is entitled to recover wages to the latter date. The court took the same view of the case, nor does it appear from the record plaintiff’s attorney held a different theory. But said attorney offered in evidence the written contract referred to in the order for new trial, for the purpose of showing plaintiff was employed by defendant at $85 a month. Though plaintiff’s attorney admitted no question was raised about his client having-been employed, he insisted it was competent to shoAV the circumstances, the agreement made at the time, and what plaintiff did to get employment. On this theory he insisted on the competency of the written contract. This paper will accompany the opinion and a person reading it aauII perceive it contains distinctive subject-matters and is, at least in large part, a contract by which A. W. Jones, as vice-president and general manager of the company, agreed to sell and plaintiff agreed to buy one hundred and fifty shares of the capital stock of the company for $1,000. Jones also agreed to guarantee eight per cent dividends on the par value of the stock and to make good the difference between the amounts declared as dividends on July 1,1905, and January 1, 1906, and what the dividends would amount to at eight per cent. It contains provisions by which Jones employed plaintiff in the business of the defendant company at eighty-five dollars a month, agreeing if plaintiff’s services proved satisfactory, to have his salary raised to one hundred dollars a month July 1, 1905, and thereafter periodically as his services might warrant. There are other provisions in the document relating to the employment of plaintiff. The recitals in the order for new trial show the court thought defendant Aims prejudiced by the portion of the writing relating to the purchase of' stock from Jones by plaintiff. Appellant’s contention on the appeal is that inasmuch as defendant’s counsel only objected to the paper on the ground it Avas not a contract of employment by defendant, the objection did not go specifically to any part of the contract, but to the whole of it; hence the trial court had no right to grant a new trial for error in admitting a portion of the paper.

As to the prejudicial influence of the document or the portion of it relating to a sale of stock, we think the opinion of the lower court ought to be respected. It is possible this part of the writing had no influence on the jury, but it is possible, too, it influenced them against the defendant. Hence we decline to interfere with the order for new trial on the ground the lower court was in error in supposing a part of the contract was harmful. The main argument is that as defendant’s counsel made only general objections to the document on the score of its incompetency, it was error to grant a new trial because part of it was incompetent. This argument is rather strained. Without saying that in no event could the writing be competent to prove plaintiff’s employment, Ave hold it was irrelevant as the case stood, because the employment was conceded and the only issue of fact Avas the time of his discharge. Where evidence competent for any purpose, is admitted over a general objection, the ruling of the trial court will not be reviewed on appeal; because it is the duty of the objector to point out definitely the reasons Avhy the evidence should not be admitted, both to enable the trial court to rule intelligently and the appellate court to pass on the competency of the evidence, with reference to the same reasons which prevailed below. [Fields v. Hunter, 8 Mo. 128.] But this is a different proposition from saying if the trial court itself becomes satisfied a bit of the admitted evidence was irrelevant, improperly admitted and prejudiced the jury, the court, because the evidence was objected to generally, is powerless to set. aside the verdict given under the bias produced by the incompetent evidence.

The order for new trial is affirmed and the cause remanded.

All concur.