Trumbull Common Pleas.

CONTRACTS.

[Trumbull Common Pleas, February Term, 1890.]

*DAVID S. FOREDYCE V. C. EASTHOPE.

1. CONTRACT FOR A YEAR.

A written contract for services for one year exists where defendant in a letter to and received by plaintiff proposed to hire the latter to labor for him for a year at $180.00, and the plaintiff by letter accepted the proposal without condition or reserve.

2. CONTRACT OF MINOR-AVOIDANCE.

The contract of a minor is voidable, notwithstanding it is in writing, and he may at any time before reaching his majority, or up to, or even at that time, disaffirm his contract and set it aside; but the burden is upon him to prove his disaffirmance thereof.

3. FACTS WHICH DO NOT JUSTIFY VIOLATION.

Under a contract to work on a farm for a year, voluntarily laboring in excess of a day's labor, without compulsion on the part of the em ployer, will not justify an employee in quitting his employment during the year.

4. RULE AS TO MEASURE OF DAMAGES.

The rule of damages for the violation of a contract to labor for a year, is the difference between the contract price and the market value of the services of the employee at the time of quitting his employment.

J. E. Pickering and M. Woodford, for plaintiff.

Geo. P. Hunter, for defendant.

The pleadings show that plaintiff :

First. Sues for $70.00 earned by him as wages.

Second. It is conceded the work was done and was worth that sum. Third. But payment thereof is sought to be avoided, by setting up an entire contract for a year, and quitting of service of plaintiff (below) before the expiration thereof, without cause, and therefore nothing due.

Fourth. Such construction of contract is denied, and alleges new proposals and inducements acted on by plaintiff (below) alleges justification for quitting in any event, and also sets up minority.

Charge to the Jury.

GILMER, J.

Gentlemen of the Jury: David Foredyce brings this action against the defendant, C. Easthope, to recover for services he alleges to have rendered for the defendant from March 21, 1889, to August 10, 1889, upon his farm.

He says that he worked during this time, and that these services were reasonably worth the sum of fifteen dollars per month, and that in the aggregate it amounts to the sum of seventy dollars.

*This decision was affirmed by the circuit court of Trumbull county, April Term, 1891, and by the Supreme Court without report in 52 O. S., 663.

Foredyce v. Easthope.

There is also another claim for extra hours mentioned in the petition. No proof has been given upon that; and in no event will you consider that part of the claim in the case for the plaintiff has withdrawn that claim from his petition.

To this petition the defendant files his answer in which he admits that the plaintiff worked for him, the defendant, from March 21 to August 10, 1889; admits that his services were reasonably worth the sum of $15.00 per month, and then by way of denial of plaintiff's claim, he says these services were performed under an agreement by which the plaintiff agreed to work for the defendant for the term of one year at an agreed price of one hundred and eighty dollars, and that without defendant's fault the plaintiff quit his services before the expiration of this time. He then further avers by way of cross-petition, that he has been damaged by reason of this breach of contract on the part of plaintiff in the sum of thirty dollars, and asks judgment at your hands for that sum.

To this answer the plaintiff makes reply and says, that if there was a written contract, that still all the terms of that contract are not fully set forth in writing, and one reply to the defendant's answer is, that the requirements of the defendant were such that it was impossible for him to perform them and that he was obliged to quit; that he quit on account of the fault of this defendant and not on account of his own fault. He further says, that when this contract was made he was a minor and that he disaffirmed the contract, and that whatever services he rendered were not rendered under the contract claimed by the defendant, under the admissions made by counsel and the admissions in the answer in this

case.

Defendant's counsel have had the opening and closing arguments to you, and the first question the court would direct your attention to is whether or not there was a contract made as alleged in the defendant's

answer.

The burden of proof would be upon the defendant to satisfy you by a fair preponderance of the evidence that such a contract in substance as is alleged, was entered into. Upon that question I am asked to say that if you find from the evidence that previous to March 21, 1889, that plaintiff and defendant had correspondence by mail, and that defendant in a letter to and received by plaintiff, proposed to hire plaintiff to labor for him for a year at a stated price, and that plaintiff in a letter written to and received by defendant, accepted said proposal without condition or reserve. Then, I say to you that such a letter would constitute in law a written contract between plaintiff and defendant to labor for one year.

You will remember what the parties claim here. The claim of the defendant is-you will have them before you that there was a written contract for services for one year. The plaintiff in reply says, that not

Columbiana Common Pleas.

all of that contract was in writing. You will ascertain what the proof was, and the burden of proof is as I have stated.

The question is now before you: What was the contract entered into, if any, by these parties?

If you find that there was a contract, find upon this issue for the defendant. Then, you will enquire further, was this contract disaffirmed or put an end to? You will remember the claim of the plaintiff is that he was a minor when this contract was entered into. If he was a minor this contract was voidable and he could put an end to this contract, although it was in writing. He says to you that when he went to work for this defendant, as he supposed to do ordinary farm labor, he was required to work late in the night and early in the morning; that he found the labor such that it was impossible for him to do it, and thereupon he informed the defendant and put an end to this contract; he disaffirmed it and told him he could work no longer under it. Thereupon the defendant asked him to go on, and then made, as he, the defendant, claims, substantially a new contract. In other words, from that time on he did not work under the contract as made, if you find there was one made, but that he worked independent of it. How is this, gentlemen? This is to be determined by the evidence in this case.

I say to you that the plaintiff had a right to disaffirm the contract if you find he was a minor, at any time before he became of age or up to the time or even at that time, he might disaffirm it and set it to one side. In this matter, the burden as I say, is upon the plaintiff to satisfy you by a fair preponderance of the evidence. These parties are at issue about it. The plaintiff insists by the evidence that he has given, that perhaps on more than one occasion before he became of age, and even, I think, at the time he became of age, he disaffirmed this contract, and said to this defendant that he must quit his services, and that the defendant thereupon requested him to go forward.

The claim of the plaintiff is that he did not go forward, if there was a contract; the claim of the defendant is that he did go forward under this contract and that he never did disaffirm it.

It would be a defense, if you find upon the evidence, that there was a written contract between the plaintiff and defendant made previous to March 21, 1889, by which plaintiff agreed to labor for defendant for one year, and that plaintiff commenced to labor for defendant under such contract on said March 21, 1889, and continued to labor for defendant under such contract until he quit on August 10, 1889, unless you should find that plaintiff disaffirmed the same before or about the time he be came of age.

The other question made in reply in this case is that this defendant required of this plaintiff excessive labor-labor that was not required and was not contemplated within the terms of the contract, and that it was

Foredyce v. Easthope.

excessive beyond what reasonable men would require of their help, and therefore, he was justified in doing as he did. If you find that he did not disaffirm the contract, if one was made, he still claims that he was justified, under the circumstances, in quitting.

I say to you upon this subject, that if you find from the evidence that plaintiff was working for defendant on his farm under contract to work for a year, and at any time while so laboring worked hours in excess of a lawful day's labor, and did it voluntarily, without any compulsion on the part of the defendant, that would not in law alone constitute justification to quit his employment during the year.

You will remember that the plaintiff claims that it was not voluntary -that it was a requirement; it was something that the defendant asked of his employees. That is the claim of the plaintiff. The claim of the defendant is that whatever the plaintiff did was voluntarily done.

Now, then, gentlemen, it is a question for you to determine whether or not, under all the circumstances in the case as proved here, he was justified in quitting the employment of the defendant.

If you should find against the plaintiff upon these several matters set up in his reply, then, as I have said, and find that there was a contract, in the manner I have instructed you, then that would not only be a defense to the plaintiff's claim, but the defendant would be entitled to recover damages. He alleges in his cross-petition that he has sustained damages in the sum of thirty dollars. The rule of damages would be the difference between the contract price and what the market value of plaintiff's services were worth at that time.

On the other hand, if you find against the defendant on the contract as alleged in petition, then, the verdict would be for the plaintiff; the sum of $70.00 with interest upon it up to the first day of the present term of court, February 10. Also, if you find he was a minor and disaffirmed the contract, the same rule would prevail, and for the plaintiff, or if you find he quit the employment without fault of the plaintiff and on account of the fault of the defendant, then your verdict would be for the plaintiff in the sum of $70.00, it having been admitted that his services were worth that much in the answer, whatever these services were worth, with interest up to the first day of the present term of court, February 10, 1890.

Under the instructions I have given you, you will determine what the facts in this case are.

Columbiana Common Pleas.

NEGLIGENCE-MASTER AND SERVANT.

[Columbiana Common Pleas, February Term, 1894.]

*TIMOTHY CONNORS V. GOLDING & SONS COMPANY.

1. RULE AS TO INJURIES CAUSED BY ANOTHER EMPLOYEE.

To recover in an action against the owners of a factory for personal injuries caused by the negligence of an employee, it is necessary to prove that he was the representative of the defendant for the time being at least and that he had authority to direct and control the plaintiff, but it is immaterial by what manner he was commissioned with such authority, whether by express direction or not.

2. FAILURE TO USE SAFETY APPLIANCES.

The fact that an employee in a factory, after being caught in a cylinder, did not use the devices for his safety, in the form of a rope or lever which would have stopped the cylinder, would not be such negligence as would prevent recovery, providing the defendant was guilty of negligence. 3. BURDEN OF PROOF.

The burden is on the plaintiff to show that the injury was caused by the negligence complained of, without regard to whether the defendant was negligent in other respects.

4. MEASURE OF DAMAGES.

The measure of damages in an action for personal injuries includes compensation for loss of time, physician's fees, reasonable expenses incurred to effect a cure, necessary expenses for nursing, an allowance for physical suffering or pain sustained and endured by reason of the injury and also compensation for loss of earnings by reason of the permanency of his injury.

Timothy Connors commenced an action in the court of common pleas of Columbiana county against The Golding & Sons Company, to recover damages for a personal injury. The Golding & Sons Company owned and operated a mill for grinding flint, for use in the manufacture of pottery, at East Liverpool, and Connors was an employee in the mill as "cylinder man.”

The flint was ground by placing a charge in a horizontal cylinder, together with a quantity of hard pebbles. There was an opening in the side of the cylinder for putting in and withdrawing the charge. After the cylinder was charged this opening was closed by a head, which was

*Judgment affirmed by the circuit court, September term, 1894, and by the Supreme Court, 53 Ohio St., 647, unreported. In the Supreme Court, H. R. Hill, A. H. Clark, and J. A. Ambler, for plaintiff in error, cited: Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; C. C. & C. R. R. Co. v. Keary, 3 Ohio St., 201, 202; Whaalan v. Mad River, etc., R. R. Co., 8 Ohio St., 249; P. Ft. W. & C. R. R. Co. v. Devinney, 17 Ohio St., 197; Berea Stone Co V Kraft, 31 Ohio St. 287; Railway Co. v. Ranney, 37 Ohio St., 665; P., Ft. W. & C. Ry. Co. v. Lewis, 33 Ohio St., 196; Sorenson v. Menasha Paper Co., 56 Wis., 338, 342; Gores v. Graff, 77 Wis., 174; Sherman v. Lumber Co., 77 Wis., 14, 22; Trapnell v. Red Oak, 76 Iowa, 744; Lehman v. Brooklyn, 29 Barb., 234; Payne v. Railroad Co., 40 New York Sup. Ct., 8; Stager v. Railway Co., 119 Pa. St., 70; Gores, Admr., v. Graff, 77 Wis., 174.-2 syllabus, and pp. 177, 180; 1 Shear. & Red. on Negligence (4 Ed.). Sec. 99 and notes.

P. M. Smith and R. W. Taylor, for defendant in error, cited: Street Railroad Co. v. Nolthenius, 40 Ohio St., 376-380; Western Union Telegraph Co. v. Wisden, 85 Texas, 201; S. C. 34 Am. St., 805.