Seiler v. New York Ice Cream & Creameries, Inc.

Superior Court of Pennsylvania
Seiler v. New York Ice Cream & Creameries, Inc., 71 Pa. Super. 32 (1919)
1919 Pa. Super. LEXIS 22
Henderson, Kephart, Orlad, Porter, Trexler, Williams

Seiler v. New York Ice Cream & Creameries, Inc.

Opinion of the Court

Opinion by

Williams, J.,

Defendant hired plaintiff as farm manager at a salary of $100 per month and agreed to give him sixty days’ notice to terminate the employment, such notice to date from the end of the next calendar month. Plaintiff .worked from October 11, to November 21, 1917, when he was dismissed without notice, and as he testified, without payment. The court below, sitting without a jury, found for plaintiff, and judgment was entered for $330. Defendant appealed.

*34The first assignment relates to the refusal of testimony that the books of defendant showed payments of salary had been made to plaintiff. Inasmuch as the books were not offered in evidence and the witness was permitted to testify fully as to all payments we see no harm to defendant in the rejection.

The second and third assignments raise two questions: (1) must plaintiff prove he did not work during the period for which he demanded salary; and (2) is the failure of the court to give plaintiff as much damages as the finding might warrant, reversible error?

Plaintiff, having been wrongfully discharged, was prima facie entitled to wages for the full term provided ■by the contract, and the burden of proving he did work, or might have worked, during the period, was upon defendant: Heyer v. The Cunningham Piano Co., 6 Pa. Superior Ct. 504. There was no such proof.

The failure to give all the damages warranted by the evidence was an injury to plaintiff, of which defendant has no right to complain.

The judgment is affirmed.

Reference

Cited By
2 cases
Status
Published
Syllabus
Master and servant — Action for salary — Testimony—Boohs of account. In an action by an employee against his employer-for salary it is not error for the court to refuse to permit a witness for the defendant to testify that the books of defendant showed that payments of salary had been made to plaintiff, if it appears that the books were not offered in evidence, and the witness was permitted to testify fully as to all payments. Where a servant has been wrongfully discharged, he is prima facie entitled to wages for the full term provided by the contract of employment, and the burden of proving he did work, or might have worked, during the period, is upon defendant. In such a case tried by the court without a jury, the failure of the judge to give all the damages warranted by the evidence, is an injury to plaintiff, of which defendant has no right to complain.