FARMER v. FIRST TRUST CO. In re MILWAUKEE MOTOR CO., 246 F. 671

ALSCHULER, Circuit Judge (after stating the facts as above). It is maintained for appellant one serving in a supervisory capacity is not so strictly accountable to the employer for his time as is a clerk or a workman, and that Farmer’s absence of two or three days without permission was not such a breach of the contract as warranted its termination. The legal proposition, as generally stated, is sustained by the authorities cited from Wisconsin, the state where this contract was made, as well as elsewhere. Moody v. Streissguth Clothing Co., 96 Wis. 202, 71 N. W. 99; Schumaker v.

Heinemann et al., 99 Wis. 251, 74 N. W. 785; Loos v. Walter Brewing Co., 145 Wis. 1, 129 N. W. 645, 140 Am. St. Rep. 1052; Green v. Somers, 163 Wis. 96, 157 N. W. 529; Beach on Modern Law of Contracts, § 584. But the applicability of such rule must depend on the facts of particular cases. Conditions may be readily imagined where in a well-organized, smoothly running, and successful business a day’s or even a month’s absence of a general superintendent, who has the business well in hand, might be wholly consistent with its' continued uneventful and successful operation.

Upon the other hand, the business may be in condition so critical that a single hour’s willful absence of such an officer at such a time might well be regarded as rank disloyalty and gross insubordination. Nearly five months of the new contract period had passed. Instead of deliveries of 1,050 engines required during that time under a single contract, to say nothing of other outstanding contracts, but 190 all told had in fact been delivered, and these more or less defective.

Purchasers were clamoring for deliveries and complaining of defects in those delivered; materials were delayed; there was more or less trouble in the shop; and things generally seemed to be going awry. Added to this, the new equipment was in process of installation; old machines were being moved and changed; and the shop was undergoing radical rearrangement and reconstruction. The responsible head was Farmer.

He had various foremen under him, but he was the only mechanical engineer connected with the plant, and while in authority it was itpon his designing, planning, and direction that success or failure depended. This high-priced man faced obstacles, to surmount which would manifestly require his fullest capacity and undivided attention. Surely this was not a situation wherein the man at the helm might needlessly and with impunity abandon his post that he may tread “the primrose path of dalliance.” It is urged that the evidence shows no harm to the business resulting from these days of absence of its mechanical head.

The sentry sleeping at his post is not less derelict in duty if, haply, disaster does not follow; nor is the responsible employé’s disloyalty or insubordination measured by the extent of the resultant harm to the employer, nor minimized if none happens to follow. It is insisted that even if, while at Chicago, appellant did transgress the canons of propriety and right living, this of itself would not warrant his dismissal.

The authorities support the proposition that if the transgression does not injure the employer, nor unfit the transgressor for the employment, termination of a contract of employment for such cause alone would not be justified. Wood, Master & Servant, § 110; Child v. Boyd, etc., Co., 175 Mass. 493, 56 N. E. 608; Brownell v. Ehrich, 43 App. Div. 369, 60 N. Y. Supp. 112. But the dismissal here is not justified on the ground of the employé’s personal transgression at Chicago.

The fact of the transgression affords evidence that the absence from duty was not necessitated by any of such causes as might excuse it, and emphasizes the conclusion that it was willful and deliberate, and under conditions which gave to the conduct strong color of disloyalty and insubordination. Nor is it material that at the time of the dismissal the employer did not know of his conduct at Chicago, and did not assign it as a cause of dismissal. Even if the cause assigned for dismissal was not in itself sufficient, if it appears that sufficient cause therefor did in fact exist, the dismissal was justified.

Wood, Master & Servant, § 121; Rabatt’s Master & Servant, § 189; Carpenter Steel Co. v. Norcross, 204 Fed. 537, 123 C. C. A. 63, Ann. Cas. 1916A, 1035; Thomas v. Beaver Dam Mfg. Co,, 157 Wis. 427, 147 N. W. 364, Ann. Cas. 1916A, 1020; Loos v. Walter Brewing Co., 145 Wis. 1, 129 N. W. 645, 140 Am. St. Rep. 1052; Von Heyne v. Tompkins, 89 Minn. 77, 93 N. W. 901, 5 L. R. A. (N. S.) 524.

But the employer did then know the desperate condition of things at home; did know that appellant’s place was there, and his presence there much needed; did know appellant had been asked at Jackson to return at once to the shop, and had stated he would do so after a short stay at Chicago for buying a present; and did know that for several days he did not put in appearance at his place of duty.

Without any excuse appearing for the absence, such as illness or other unavoidable cause might afford, the employer was warranted in attributing it to a willful disregard of the master’s interests, and to insubordination, which, in our judgment, upon this record justified his dismissal. The order, of the District Court is therefore affirmed.