
    NO. 7626.
    LEOPOLD WOLFF. VS J. M. GOLDSMITH.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   OEIHIOH,

Bv his Honor

John St. Paul.

Da-fondant was manager and general agent of a life Insurnace Como*tiv, and -olaintiff wa“ a solicitor or soeoial agent in his employ.

\ Bv the terms of the contract Between them olaintiff was to reoeire in addition to his recular commission on first vear oremiums, certain other commissions on renewal oremiums,conditioned however "that the Aergnt (plaintiff) remain oontinuouslv in the emnlov of the Manaa-er (defendant)."

This is a suit for those other and additional premiums: and the defense is, that the olaintiff is no lone-er in the emnlov of defendant, having Been discharged for cause.

Whilst, it is written in the contract that either oartv mav terminate it at oleasure on seven days notice, it is not claimed Bv everqised defendant that this right might Be ###### By him without pause to the prejudice of Dlalntiff's claims for the additional commissions aforesaid/ and indeed, the last paragraph of section Id of the contract seems to contemplate that the defendant may not do so; since it provides that, "in case there shall Be any question as to the violation of the conditions of this contract By the Agent at the date of the termination of this contract, the question shall Be referred to the Company for its decission, and its decision shall Be final."

So that phase of the question does not present itself here; and the only íbsub Before us, is whether or not defendant had a just cause for discharging plaintiff.

In this connection it is also written into the contract that, "if the Agent (plaintiff) fails to comply with any of the duties, conditions- or obligations of this contract the Hanager (defendant) may terminate same upon Immediate notice." TZbioh of course Is nothing But the general law (as will hereafter appear).

The contract further provides that the Agent (plaintiff) shall he governed in the business of his agency by the instructions he may from time to time receive, orally or in writing, from the Manager (defendant); and by the written or printed rules of the Conpany." Vihioh is also only the general law.

How among the rules of the company (with which plaintiff was of course familiar) there is one which provides that, "All collections made by Agents xx must be turned over to xxx Managers the day they are made ." It was also well known to plaintiff that Special Agents were not authorised to oolleot premiums other than the first; and. that the Company recognized no payment except in exchange for its official receipts, issued by the Home Office and entrusted only to Seneral Agents and Managers.

Moreover the Manager (defendant) had repeatedly warned plaintiff, both orally and in writing, that he had no authority to collect renewal premiums, and should not do so; but that if he did so, he must remit the «mount in the same day on which the collection was made»"

Yet in spite of the well known rules of the Company, and of express and particular instructions from defendant, plaintiff nevertheless persisted in collecting renewal premiums, without the official receipts (which he did not have), and instead of remitting suoh collections on the same day, kept the same for periods as long as thirty days; with the consequanoe that the manager, having no knowledge of the paymente, aent notloes of delinquency in due course to the policy holders, who thereupon protested that they had paid through the agent (plaintiff).

This necessitated always a three cornered correspondence between the Manager, the Polioy Holder and the Agent; whloh of oourse was um atiéfaotory and exasperating to the two former, and brought frlotia between all three. In fine, defendant testifies that he feared, that as a result of this state of affairs his own position with the oompany was being jaopardiied.

Acoordlngly ho discharged the plaintiff.

The trial judge thought, and so do we, that defendant was fully justified in auoh a course. In his written reasons for Judgment the learned'judge summarizes the whole oase thus: "The evidence clearly shows that this is a oase in whioh the employer and the employee disagreed as to whether the business was to he run in the manner in whioh the employer wanted, or in the manner in whioh the employe# wanted; and the defendant (the employer) would not stand for it."

Por of oourse an employer has a right to make rules for the oonduot of his business, whioh his employee is bound to obey; ana a breach of such rules is Just oause for a discharge.

The rule on this subject is thus laid down in the Cyclopedia of law and Proceedure; "As a general proposition any act of a servant whioh injures, or has a tendency to injure, his masters business, interests or reputation, will, justify his dismissal, x x x A master is justified in discharging his servant for any breach of the express or implied conditions of the contract of employment.” 26 Cyc 988, 989. (Yerbo; Raster and servant)

In Vicknair vs Southside Plantation Co, 10 Orleans Appeals 43, the court held that the refusal of an employee to obey an apparently reasonable order from his employer, amounted to a defiance of authority, and warranted his discharge.

In Kenner vs Southwestern Oil Co, 113 La 80, the Supreme Court said; "disobedience of lawful and reasonable orders connected with his employment, affords just grounds for the discharge of an employee."

In this last oase the grounds for discharge were, that the employee failed and refused to send dally reports of his sales when directed to do so, although no injury was shown to have resulted therefrom.

It is said the defendant condoned the acts of plaintiff because he acoepted the belated payments, or charged them to plaintiffs account; and that he insisted that collections "if made" should be remitted the same day.

Of oourse a vigorbus protest (suoh as defendant repeatedly made) against plaintiff making suoh collections, cannot dMUMF ¿jjmmÜW'.i'ddrasWiafiMrjurfbeB- he construed into an acquiescence in that course, even if defendant did recognize a "fait accompli" and accepted the company's ,jU3t dues through that' irregular channel. But even conceding this to he, yet it is quite certain that defendant never for a moment acquiesced in plaintiff's failure to remit such collections the same day; for it was just "that practice which defendant and the Company most strongly objected to. Had plaintiff observed that part of his instructions, the other matter might never have been complained of. But plaintiff would not have it so.

It is also claimed that defendant condoned plaintiff's teta by inviting him, just a few days before the diaoharge, to take part in a ooapeny reJojoin* and banquet; of whieh defendant bore part of the expense#, this le not sound. The invitation was general, and doubtleae Issued to plaintiff as a wore matter of oourse, he being then still in the employ of defendant. Moreover that was to be an oeeasion of good feeling and freedom from business eares; and as the guests were not expected to bring their cares and gretvaneas with them, still less was the host permitted to do so himself.

The judgment below was for the defendant, and it appears to ua eorreet.

JaAgMnt

Dlnkelsplel, J, reeused.

New Orleans La, November 24th, 1919.  