
    Beckman, Jr., et al. v. Garrett.
    
      Employe discharged before expiration of service — Because of default in duty — Actual injury need not be shown by employer — To justify discharge — Master and servant.
    To justify the discharge of an employe before the expiration of the term of employment, it is sufficient for the employer to show that the employe was guilty of a default in duty whose natural tendency was to injure his business, and actual injury thereto need not be shown.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    . Garrett brought suit in the court of common pleas to recover from Beckman & Company damages alleged to have been sustained by him as the result of their breach of a written contract of employment whereby they had employed him for five years from March 1, 1894, to March 1, 1899, at a stipulated salary, and he had agreed to serve them for that period, his obligation being expressed in the following terms:
    “In consideration of the foregoing the said Albert P. Garrett agrees to and does hereby enter into the employment of the said Beckman & Company upon the terms hereto set forth and agrees to devote all his time and attention to the interest of said parties of the first part.”
    
      The plaintiff, admitting the performance of the contract until September 30, 1896, alleged that upon that date the defendants in violation of its terms and without his consent terminated the employment.
    The answer admitted the execution of the contract upon which the plaintiff counted, and further alleged:
    “That the plaintiff did not give to the business and interests of the defendants the time and attention required to be given by him thereto, under the terms of said agreement on the 18th, 19th and 28th days of September, 1896, on which said days the plaintiff, without the-consent and against the wishes of the defendants, and without any cause, excuse or justification therefor, did wholly absent himself from the defendant’s place of business and from his said employment, and during the whole of said days did utterly fail and neglect to perform the duties of his said employment, in utter disregard of the terms of his said agreement and to the great injury and inconvenience of these.defendants. On account whereof these defendants did, on said 30th day of September, 1896, discharge the plaintiff from their said employment, as hereinbefore admitted.
    By the reply the allegations of the answer were denied generally.
    Upon the trial without objection, so far as the record discloses, the plaintiff first introduced his evidence. Three hundred and forty-seven pages of the printed record are required to present to us the evidence and other things which were recited to the jury in the form of evidence. From the evidence it appears with much repetition that the plaintiff was absent from the defendants’ place of business on the days named in their answer. The plaintiff in advanee of the defendants’ evidence undertook to justify his absence by showing that it was in part for purposes consistent with his employment and in part in consequence of illness. Evidence was introduced by the defendants to show that the absence was not for purposes consistent with his employment nor on account of illness. There was no evidence to show the effect of the plaintiff’s absence on the business of the defendants.
    With enough amplification to make it entirely intelligible to the jury the following propositions were given for their guidance in determining the plaintiff’s right to recover: First, if the plaintiff’s absence from the defendant’s place of business was with reasonable excuse or justification it did not in law warrant the defendants in terminating the contract of employment, and to defeat a recovery it was incumbent on the defendants to show not only the absence but also that it was without reasonable excuse. Second, that to defeat a recovery the defendants were bound to show not only that the plaintiff was absent without reasonable excuse, but, further, that his absence occasioned actual injury- to their business. A verdict was returned for the plaintiff which was followed by a judgment which the circuit court affirmed.
    
      Messrs. Meyer & Mooney, for plaintiff in error.
    In the determination of the question submitted, the jury was instructed to regard the absence of the plaintiff below from his employment on the said days, and which absence constitutes the defense set forth in the answer, as substantially admitted. The said absence, we submit, was such breach of his contract of employment as would justify his. discharge from service, unless lie should show, by proper evidence, that it Avas either authorized by his employers, or involuntary and unavoidable on his part. Such being the case, the burden of so showing was upon the plaintiff below. The court, however, charged to the contrary, in the folloAving terms: “Now in reference to this matter, I say to you, gentlemen, that the burden of establishing that the absence of the plaintiff on those days was without excuse or reasonable justification rests, upon the issues presented in this case, in the judgment of the court, upon the defendants to establish by a preponderance of the evidence.”
    This, it is submitted, Avas clearly error to the prejudice of the plaintiffs in error. Fowler v. Ice Company, 1 McArthur, 14; Harrington v. Iron Works Co., 119 Mass., 82; Naylor v. Iron Works Co., 118 Mass., 317; Libhart v. Wood, 1 Watts & Serg., 265; 30 Georgia, 612; 163 N. Y., 351.
    
      Messrs Sanders cC- Wilson, for defendant in error.
    An employer always has the power to dismiss his employe from his service, but if such discharge be in violation of the contract of service, he must respond in damages. Hence the master must plead and prove justification for his act, because it is in contravention of the terms of his contract. The courts uniformly hold that the discharge must be justified. Mere absence, unless prolonged, is not sufficient. Wood’s Master and Servant, 226. The burden of proof is therefore upon the master to establish the justification where he relies upon it to defeat the claim.
    Mr. Beckwith himself testifies that Mr. Garrett’s absence on those days was unnoticed and not objectionable, and he did not seek to justify his discharge for this absence, but for the “drunkenness and carousing.” His absence on the 19th was “unavoidable” 
      and “involuntaryHis absence was not unreasonable of itself in view of the contract — the nature of the business and the effect upon the business. Hence the burden still remained upon the master to show that such absence was without cause or justification.
    The authorities are numerous and uniformly sustain this proposition. Milligan v. Furniture Co., 111 Mich., 629; Morris v. Taliaferro, 75 Ill. App., 182; Stevens v. Stephens, 14 Utah, 255; Babcock v. Appleton Mfg. Co., 93 Wis., 124; Crawford v. Mail Pub. Co., 47 N. Y. Supp., 747; McMullan v. Dickinson Co., 63 Minn., 405; Green v. Washburn, 7 Atl. Rep. (Mass.), 390.
    Upon this branch of the charge touching master’s interests, we call attention to the entire charge.
    Wood’s Master and Servant, page 216, says: “That every case (discharge) must be determined by the contract — the nature of the business and the effects upon the master’s interests.”
    Did Mr. Garrett’s absence of two days, all told, injuriously affect the master’s interests? If such absence was without reasonable excuse, did it injure the business of the defendants?
    This was, in effect, saying that not every absence without permission or excuse will justify the master in discharging his servant. If this particular absence was without excuse by reason of the circumstances attending it, still you will inquire further as to the effect upon the master’s interest. If it did not injure the master’s interests and the absence of itself was not unreasonable in length, then, etc. Wood’s Master and Servant (2 ed.), 211.
    The defendants were manufacturers of horse blankets and lap robes, and Mr. Garrett, as their salesman, came in contact with dealers in hardware and harness men. Hence there was nothing in Mr. Garrett’s conduct incompatible with the nature of Beckman’s business, though he occasionally drank a glass of beer.
    Mr. Beckman testified that he and his father drank it habitually, or when he felt like it, and that he had invited Mr. Garrett to drink with him on numerous occasions.
    It was customary for the firm to drink. To charge Mr. Garrett with misconduct on account of drunkenness on those days, and that the same injuriously affected their business, devolves upon the defendants the burden of proving it.
    Mr. Beckman testified that he did not discharge Mr. Garrett for absence; that his absence was all right, but it was the injurious effect upon his business which would result from his habitual drunken-. ness.
    He waived all objections to his absence on the 18th and 19th, and again waived it on the 29th for absence on the 28th, and he so states in his testimony. Hence he relied upon the effects upon his business of Garrett’s misconduct to justify his discharge, and it was not error to so direct the jury.
   Shauck, J.

The correct rule as to the obligation of the plaintiff under his contract of employment appears to have been given to the jury in the general terms of the charge. And the instruction that the defendants in order, to justify a rescission of the contract before the expiration of the time, were required to show the unjustifiable absence of the plaintiff from their place of business seems to be unobjectionable. But it is insisted that the defendants should not have been required to show that such unreasonable absence resulted in actual injury to their business. There being no evidence of such actual injury, the instruction upon that point was equivalent to a direction to return a verdict for the plaintiff. Such direction might have been given with entire propriety if proof of actual injury was, in a correct view of the law, essential to the defense.

It is, however, manifest that in giving this instruction the trial judge failed to discriminate between a cause of discharge and a cause of action. The established rule upon the subject is that the employer may discharge for misconduct whose necessary tendency is to the injury of his business. If the discharge had been for the plaintiff’s misconduct while present and attending to his duties, nothing more could have been required of the defendants in that respect than to show misconduct having such tendency. Such was the inevitable tendency of the plaintiff’s absence from the place where his duties were to be performed. Nothing should have been required of the defendants below except to show that the admitted absence of the plaintiff was without reasonable excuse. Jerome v. Queen City Cycle Co., 163 N. Y., 351.

Judgment reversed.

Burket, Davis and Price, JJ., concur.  