Adams' Express Co. v. Trego

Alvey, J., delivered the opinion of the Court. This was an action of assumpsit, instituted by the appellee against the appellant, to recover the sum of $2,000, the balance of salary for the year 1869. The ground of the action ⁵⁹ is, that the appellant, through its agent, had contracted with the appellee to employ him for the entire year of 1869, at a salary of $4,000, payable monthly, and that he was wrongfully dismissed from the service of the appellant on the first of July, 1869, up to which date his salary was paid. At the trial in the Court below several bills of exceptions were taken by the appellant; but as the fourth and fifth exceptions involve questions of a preliminary character, we shall dispose of them before considering the questions raised by the other exceptions, which are of a different nature.

And as to the fourth exception, we discover nothing in it to justify a reversal of the judgment appealed from. Whether a continuance should have been ordered, after the amendment of the appellee’s declaration, was matter of discretion, which is exclusively confided to the Court in which the amendment takes place; and no appeal lies from its exercise. Code, Art. 75, secs. 23 and 24. If the Court below was not satisfied that the ends of justice required a continuance, it was clearly right in refusing to grant it; and no mere rule of Court could be allowed to operate to divest such discretion, or in any manner to change or modify the statutory provision on the subject.

Rules of Court must not be in conflict or inconsistent with the Statute law of the State. The fifth exception was taken to the' refusal of the Court to order the removal of the cause into the Circuit Court of the United States for the district of Maryland; and, under the facts disclosed by the record, wo think the Court was entirely right in such refusal. The cause was in progress of trial, and three bills of exceptions had been taken to the rulings as to the admissibility of evidence, when the application for removal was made; and according to what we regard as the true and plain interpretation of the Act of Congress, under which the right of removal is claimed, being that approved March 2d, 1867, entitled “An Act to amend an Act entitled ‘An Act for the removal of causes in certain cases from State Courts,’ approved July 27, ⁶⁰ 1866,” the application came too late to stay the further progress of the trial. By this amendatory Act of 1867, it is provided, “That where a suit is now pending, or may hereafter be brought in any State Court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, and the matter in dispute exceeds the sum of $500, exclusive of costs, such citizen of another State, whether he be plaintiff or defendant, if he will make and file, in such State Court, an affidavit stating that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State Court, may, at any time before the final hearing or trial of the suit, file a petition in such State Court for the removal of the suit into the next Circuit Court of the United States to be held in the district where the suit is pending, and offer good and sufficient surety for his entering in such Court, on the first day of its session, copies of all process, pleadings, depositions, testimony, and other proceedings in such suit, and doing such other appropriate acts as, by the Act to which this Act is amendatory, are required to be done, upon the removal of a suit into the United States Courts.” 14 Statutes at Large, 306, 558.

This Act, so far as it is applicable to defendants, is but a modification of the 12th section of the Judiciary Act of 1789,. and while by the Act of 1789 the application for removal was required to be made at the time of the defendant’s appearance entered in the cause, by the words of the latter Act of 1867, the right to apply for removal is extended to any time before final hearing or trial ; and as, in this case, the trial ha.d actually commenced, and several questions in its progress had been decided before the application was filed, such application cannot be said to have been made before trial. The application should have been made before the hearing or trial commenced; for otherwise it would be impossible to determine at what stage of the trial the application would be proper. Could it be made at the last stage of the trial, after all the legal questions had been ⁶¹ decided by the Court, and the facts submitted to the jury, but before the verdict found? We can hardly suppose that any one would seriously attempt to maintain such a proposition.

And if not in such case, at Avhat prior stage of the trial Avould the application be admissible ? W e think it clear, that it is not at any time before the conclusion, but at any time before the commencement of the trial, that the application to remove must be made. It AA'as contended, however, that because the appellee Avas alloAved to amend his declaration after the commencement of the trial, by inserting a special count therein, there Avas a neAV issue made, and that, as to that part of the case, the trial did not in fact commence until after pleas filed to the amended declaration, and issues joined thereon; and as the application to remove AA’as made before the amended declaration Avas pleaded to, it should be regarded as made in due time. But in this view of the subject avo do not concur.

The pending trial did not terminate by the leave to amend; for as the substance of the issue Avas not materially changed by the amendment, the jury Avas not required to be re-sworn; but all the evidence previously given remained before them, as if no amendment had been make. Garrett vs. Dickerson, 19 Md., 418 . Amendments that are proper to secure the trial of the real merits of the cause may be made at any time before the jury retire to make up their verdict; and unless the issue is materially changed by the amendment, or a continuance is deemed necessary to the ends of justice, Avhere the amendment is made during the course of the trial, a juror is never Avithdraivn, as AA’as the practice prior to the Act of 1852; but the cause proceeds as if no amendment had been made. Code, Art. 75, secs. 23, 24.

The making of the amendment, therefore, afforded no ground for alloAving the application for removal. But the failure to make the application in due time Avas not the only objection to the right of removal in this case. The appellant is alleged to be a corporation chartered by the ⁶² State of New York, where it has its principal office, and therefore claims to be regarded as a citizen of that State, and thus within the provisions of the Act of Congress referred to, which was passed to regulate the exercise of jurisdiction of the Federal Courts over controversies between citizens of different States, conferred by section 2, Article 3, of the Constitution of the United States. And, according to the decisions of the Supreme Court of the United States, the appellant is certainly entitled to be so regarded and treated, in reference to the question of Federal jurisdiction; for it is now settled, by a series of decisions of that high tribunal, that where a corporation is created by the laws of a State, the legal presumption is, that its members are citizens of the State in which alone the corporate body has a legal existence; and any suit by or against such corporation, in its corporate name, must be presumed to be a suit by or against' citizens of the State creating the body corporate; and that no averment or evidence to the contrary is admissible for the purpose of withdrawing the suit from the jurisdiction of the Courts of the United States.

Louisville, Cin. & Charleston Railroad Co. vs. Letson, 2 How., 497 ; Marshall vs. The Balt. & Ohio Railroad Co., 16 How., 325 ; Covington Drawbridge Co. vs. Shepherd, 20 How., 231 ; Ohio & Miss. Railroad Co. vs. Wheeler, 1 Bl., 286 . But while this is the ease in reference to the defendant, it no where appears in the record that the plaintiff is a citizen of Maryland; and according to the recent case of The Insurance Co. vs. Francis, 11 Wall., 210 , in order to entitle a party to the right of removal under the Act of Congress, it must affirmatively appear, either by the pleadings in the cause, or other appropriate allegation, that the party desiring the removal is a citizen of another State than that in which the suit is pending, and that the adverse party is a citizen of the particular State in whose Court the suit was brought. So that, in any aspect of the case as the record presents it, it would have been erroneous for the Court to have granted the prayer for removal. ⁶³ Having disposed of the questions raised by the fourth and fifth bills of exceptions, we shall now proceed to consider the other questions in the case, and which relate to the admissibility of evidence, and the propriety of granting and refusing certain instructions to the jury.

And before referring particularly to each several exception remaining to be considered, we shall state the leading and undisputed facts of the ease, and the general principles of law that would seem to be applicable to them. The appellee was employed, according to his own testimony, by the appellant, from 1852 to the time of his discharge in July, 1869, as assistant superintendent, and the contract of employment was made with Samuel M. Shoemaker, as the appellant’s agent and general superintendent for this district. His employment was yearly, from January to January; and in 1867 his .salary was $4,000, and continued at that amount to the close of his service. He was notified of his discharge on the 28th of June, 1869, to take effect from the 30th of that month, and no reason for the discharge was given at the time.

He further proved, by his own evidence, that from November, 1868, up to the time of his dismissal, he had been interested, with certain other parties, as the Philadelphia, "Wilmington and Baltimore Transfer Company, in conveying freight from the President street railroad station to consignees in Baltimore; and that the business of the appellant was and is to transport freight from city to city, and that, with exception of freight transported by its own company, it did not deliver freight to consignees in Baltimore. He also proved, on cross-examination, that in April or May, 1869, he was notified by Shoemaker, the general superintendent, that the appellant disapproved of his connection with the Baltimore Transfer Company, and that it demanded that he should cease his connection with that concern; that he tried to sell out his interest, but did not; that lie waited, in his own language, “for something to turn up.” Ho also proved, that at the time of his dismissal he had overdrawn ⁶⁴ the salary due to that date, some $500, which he afterwards paid back. That he had authority over the subordinate officers of the appellant. These facts were all proven by the appellee himself, and therefore, so far as he is concerned, and as against him, may be taken as true.

It was also proved, that the authority of Shoemaker, as general superintendent of the Maryland district, was to supervise the working and general management of the business and affairs of the company in such district, and to appoint and discharge agents and other subordinate employés. It was proved, moreover, that Shoemaker was well aware of the appellee’s connection with the Transfer Company, from the time such connection commenced. There was also proof tending to show, that in fact the operations of the Transfer Company, of which the appellee was a member, did injuriously conflict and compete Avith the operations and interest of the appellant, in Baltimore. On this state of case, the main question is, whether there was justification for the dismissal of the appellee; and this involves the further question as to the extent of the authority of Shoemaker, the general superintendent, by whom the appellee was employed and retained in service, with knowledge of the fact that the latter was connected with the Baltimore Transfer Co.; the other questions raised, and to be decided, being subordinate to these.

Whether there existed, as matter of fact, sufficient ground for the discharge of the appellee, Avas, of course, a question for the jury; but, as a principle of law, it may be stated generally, that the appellee, by the nature of his employment, Avas impliedly bound to serve the appellant faithfully, and to refrain from doing any act knowingly and wilfully Avhich might affect injuriously the business of his employer. It has been expressly decided, that a servant, Avhile engaged in the service of his master, has no right to do any act which may injure his trade, or undermine his business. Nichol vs. Martyn, 2 Esp. Rep., 732.

And in the case of Lacy vs. Osbaldiston, 8 ⁶⁵ C. & P., 80, brought for wrongfully discharging the plaintiff as an acting manager of a theatre, it was held, that if the plaintiff had so conducted himself as to render it injurious to the interest of the theatre to retain him, the proprietor might lawfully dismiss him; the learned Judge, in summing up, saying to the jury, that, as to the dismissal, it was a question of fact whether the plaintiff was so conducting himself as that it would have been injurious to the interests of the theatre to have kept him; and if so, he should have no difficulty in saying that it would be a good ground of dismissal. And the same principle is distinctly recognized by this Court, in the case of Jaffray vs. King, 34 Md., 220 . But it is insisted by the appellee that, as he became interested in the Baltimore Transfer Company in the fall of 1868 j with the knowledge and consent of Shoemaker, the general superintendent of the appellant, and was afterwards retained in service as he had been before, by such superintendent, it became a condition in the contract of employment that he should be allowed to hold such connection with the Transfer Company, and that the appellant is, in effect, estopped from setting up any such cause of dismissal as is relied on by it. And this, of necessity, involves the question of the extent of Shoemaker’s authority, and the effect of his knowledge of and acquiescence in the appellee’s connection with the Transfer Company.

Now, assuming that the authority of Shoemaker was as broad and comprehensive as contended by the appellee, that is, that he was authorized to employ and discharge employés and agents, and direct their conduct, make contracts, and exercise generally supervision over the business of the appellant, in the particular division; still, wc think it would be difficult to maintain that such delegation of authority included power in the agent to license or authorize one of the coemployes, who was himself entrusted with large and important control over the business transactions of the appellant, to engage in and carry on a business in competition with that which he ⁶⁶ had been employed to foster and promote. To bind the appellant as