Stern v. On Time Freight System, Inc.

493 N.W.2d 348, 1 Neb. Ct. App. 302, 1992 Neb. App. LEXIS 241
CourtNebraska Court of Appeals
DecidedOctober 20, 1992
DocketNo. A-90-646
StatusPublished
Cited by2 cases

This text of 493 N.W.2d 348 (Stern v. On Time Freight System, Inc.) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stern v. On Time Freight System, Inc., 493 N.W.2d 348, 1 Neb. Ct. App. 302, 1992 Neb. App. LEXIS 241 (Neb. Ct. App. 1992).

Opinion

Miller-Lerman, Judge.

On March 3,1986, appellant, Donald L. Stern, entered into an employment contract with appellee, On Time Freight System, Inc. The term of the contract was for 4 years. Stern was designated the vice president of sales. The contract generally outlined his duties to the company and listed his compensation. Although Stern is trained as a lawyer with skill in Interstate Commerce Commission matters, his position with On Time primarily involved sales in the freight industry. In May 1988, Stern was discharged with approximately 21 months remaining on his employment contract. Stern alleges he was discharged without cause, in violation of the employment contract, and filed an action for wrongful discharge in the Douglas County District Court. A jury returned a verdict for On Time. Stern subsequently perfected this appeal asserting that (1) the trial court’s jury instructions wrongly placed the burden of proving good cause or lack of good cause for discharge on Stern, and incorrectly stated the measure of damages with respect to the issue of Stern’s duty to mitigate damages, and (2) the trial court erred in refusing to allow certain testimony of a rebuttal witness. For the reasons recited below, we agree that the trial court failed to properly instruct the jury as to which party had the burden to prove good cause for Stern’s discharge and [304]*304therefore remand the cause for a new trial.

JURY INSTRUCTIONS: BURDEN OF PROOF

On appeal, Stern contends that the trial court erred in instructing the jury that the burden of proof was on the employee to prove that his termination was without good cause.

The Nebraska Supreme Court has consistently held that it is reversible error to give a jury instruction which places the burden of proof on the wrong party. Hersch Buildings, Inc. v. Steinbrecher, 198 Neb. 486, 253 N.W.2d 310 (1977).

The challenged instructions in the instant case provide as follows:

INSTRUCTION NO. 10
Before the plaintiff can recover against the defendant on this claim of breach of contract, the plaintiff must prove, by the greater weight of the evidence, each and all of the following:
1. That the plaintiff substantially performed the terms of the employment contract up to the time of his termination, and that he was prevented from completing the performance of his employment contract by reason of his termination by the defendant without cause;
2. The breach of contract was a proximate cause of some damage to the plaintiff; and
3. The nature, extent, and amount of damages sustained by the plaintiff.
If the plaintiff has not met this bruden [sic] of proof, then your veridct [sic] must be for the defendant.
On the other hand, if the plaintiff has met this burden of proof, then your verdict must be for the plaintiff.

(Emphasis supplied.)

INSTRUCTION NO. 12
You are instructed that an employer may not discharge an employee hired to work for that employer for a definite term unless a just cause for that discharge exists.
Just cause has been defined as causes inherent in and related to qualifications of the employee or a failure to properly perform some essential aspect of the employee’s job function.
[305]*305Just cause relates to an employee’s competence, ability and willingness to substantially perform his job duties.
In determining whether just cause exists, you must consider whether Plaintiff adequately performed his duties under the contract. The test is not whether another person could have performed better, but whether Plaintiff’s performance was so inadequate as to make substantial performance of the contract impossible or cause a substantial detriment to the employer’s business.
If you find that Plaintiff was discharged for just cause, then your verdict must be for Defendant.

In an action for breach of an employment contract, the burden of proving the existence of a contract “and all the facts essential to the cause of action is upon the person who asserts the contract.” Stiles v. Skylark Meats, Inc., 231 Neb. 863, 865, 438 N.W.2d 494, 496 (1989). See Smith v. City of Omaha, 220 Neb. 217, 369 N.W.2d 67 (1985) (employee’s failure to introduce the labor agreement into evidence was fatal to his wrongful discharge claim). In Stiles, the employee had entered into a written agreement with the meat company in 1979 which provided that the company could terminate Stiles only if Stiles breached the terms of the agreement or for good cause. Stiles asserted that he had been discharged for complying with U.S. Department of Agriculture regulations, and therefore, the company had wrongfully discharged him. The Nebraska Supreme Court stated that Stiles had the burden of proving his contract of employment with Skylark Meats and that Skylark Meats breached that contract by firing him for other than good cause. The burden then shifted to Skylark Meats to prove that good cause indeed existed for Stiles’ discharge. See Stoffel v. Metcalfe Construction Co., 145 Neb. 450, 17 N.W.2d 3 (1945). See, also, Rasch v. East Jordan, 141 Mich. App. 336, 367 N.W.2d 856 (1985); Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311, 171 Cal. Rptr. 917 (1981); Rosecrans v. Intermountain Soap & Chem. Co., 100 Idaho 785, 605 P.2d 963 (1980). Each of the cases relied on by the Nebraska Supreme Court in Stiles for the proposition that the burden of proving good cause for discharge shifts to the employer holds that the employer has the burden of establishing that it fired an employee for good cause. [306]*306See Stoffel v. Metcalfe Construction Co., supra. See, also, Pugh v. See’s Candies, Inc., supra (holding that once the plaintiff has demonstrated a prima facie case of wrongful termination in violation of his employment contract, the burden shifts to the employer to produce evidence as to why the employee was terminated); Rosecrans v. Intermountain Soap & Chem. Co., 100 Idaho at 787, 605 P.2d at 965 (holding that once the employee has established a termination in violation of the employment contract, the “employer has the burden of proving the existence of good cause for the termination”).

The court finds the opinion in Rasch v. East Jordan, supra, especially instructive in resolving the case at bar. In Rasch, the Michigan Court of Appeals considered a jury instruction placing the burden of proof as to good cause on the employee in a wrongful discharge case. On appeal, the court in Rasch

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Related

State v. Fahlk
524 N.W.2d 39 (Nebraska Supreme Court, 1994)
Stern v. ON TIME FREIGHT SYSTEM, INC.
493 N.W.2d 348 (Nebraska Court of Appeals, 1992)

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Bluebook (online)
493 N.W.2d 348, 1 Neb. Ct. App. 302, 1992 Neb. App. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stern-v-on-time-freight-system-inc-nebctapp-1992.