CHAMBERS v. SHAYNE & CO. Gen. No. 48,147.
32 Ill. App.2d 16 (1961)
176 N.E.2d 645
Emma Chambers, Plaintiff-Appellee and Cross-Appellant, v. John T. Shayne & Co., an Illinois Corporation, Defendant-Appellant and Cross-Appellee.
Appellate Court of Illinois — First District, Second Division.
June 30, 1961.
Henehan, Donovan & Isaacson, of Chicago (Edward V. Donovan, Jr., of counsel), for appellant.
Gottlieb and Schwartz, of Chicago (Charles D. Stein, of counsel), for appellee.
MR. JUSTICE BRYANT delivered the opinion of the court:
This is an action for a breach of an oral contract of employment for one year and the implied renewal for the subsequent year. The plaintiff, Emma Chambers, seeks as damages her full salary until the end of the second year following the termination of her employment and a full bonus for each of the two years. Defendant denied the making of or the existence of the contract. The jury returned a verdict in favor of the plaintiff for $8,106.19, an amount equal to her claimed salary and her bonus for the fiscal year 1956-7. Defendant appeals from the judgment entered on the verdict. In a cross-appeal, plaintiff urges that the court's sole error was in denying her motion for judgment notwithstanding the verdict in the sum of $11,736.19, and she requests a judgment in her favor for this amount.
Defendant is a family-owned corporation engaged in the retail of women's clothes. Their main store is on the corner of Michigan Avenue and Randolph Street in Chicago. Plaintiff started working for the store in 1927, and since 1941, was the buyer for the coat and
On July 15, 1957, upon her return from a two-week buying trip in New York, the plaintiff was called into the office of the defendant's president, Thomas Considine, Jr. and informed that she was discharged as a buyer for the company. She was not given any advance notice of this decision to replace her in mid-season, nor was she given any special termination pay. Upon inquiring whether the discharge was due to a dissatisfaction with her work, she was told that it was because business was bad and that it was not her fault. Considine asked her to stay on as a saleslady at $75.00 a week, which she declined. Her basic salary at that time was $8,000 a year, or $666.66 per month.
The plaintiff's claim is for her salary for the remainder of the year and her bonus for the two years. The company is on a fiscal year extending from February 1 and terminating on January 31. The bonus is determined around February 10th, on the basis of the prior year. The plaintiff says that her bonus is computed on the basis of 1 1/2% of the net sales in her department over $200,000, which would amount to $3,772.90 for the 1956 fiscal year, and $3,630.00 for the 1957 fiscal year.
The plaintiff testified that in 1941, when she first assumed her duties as a buyer, she was told by Tom Considine that her percentage would be 2 1/2% over $150,000 and her salary "was about $475.00 a month, and that would be it for the coming year." Her basic salary gradually increased over the years, and every year from 1941 to 1956, on about February 10th, Thomas Considine, Jr. would come to her office and personally present to her the bonus based on the previous
She testified that on February 14, 1956, she had a conversation with Tom Considine at the store when he handed plaintiff her bonus check, as was the custom. Her testimony was that at that time, Considine informed her that the bonus arrangement would be changed from 2 1/2% over $150,000 to 1 1/2% of the net sales over $200,000. She told Considine that she "had better make a note of that" and pulled out the envelope and make the following penciled notation on it: "2/14/56 After 200 1 1/2 perce".
The plaintiff testified that in February 1957, at the close of the 1956 fiscal year, she failed to receive her bonus. Tom Considine had been ill, so she talked to the comptroller, a Mr. Wangnett (who was deceased at the time of the trial) and was advised that no bonus checks had been issued for the fiscal year 1956. She subsequently had a conversation with Vincent Considine about her failure to receive a bonus. Vincent Considine told her that there wouldn't be any bonuses because the firm didn't make any money. The plaintiff thereupon vigorously denied that her bonus was based on profits and told him that "Mr. Tom Considine always made it very emphatic my bonus was made on certain figures, not on profit." Vincent Considine then said: "I am going to talk to my brother about it and find out what the arrangements were." The plaintiff said that there were no further conversations on the terms of her employment.
Thomas Considine, Jr., testifying for the defendant, denied that he presented the plaintiff with a bonus check for 1954 or 1955, that he had a conversation
Vincent Considine, a member of the Illinois Bar, testified that he handled defendant's fiscal matters; that in 1955, he became the general manager and assumed the duties of his brother, Thomas Considine, Jr., who had become seriously ill; and that in February, 1956, he presented plaintiff with a bonus check for the prior fiscal year. He said that he was in daily contact with the plaintiff, but that she never discussed the matter of the nonpayment of the bonus with him. He said that Mrs. Chambers never told him about the agreement she had with his brother, nor did he have any recollection about her asking him to talk to Tom about any agreement.
The financial data of the corporation pertinent to the case included the profit-and-loss position of the defendant, the gross business done by it, the aggregate
Plaintiff said she was fired in mid-season without any special termination pay. Defendant introduced in evidence the plaintiff's earning record which showed that she was paid her normal monthly payment of $666.66 on July 15, 1957, the date of her discharge. Mr. Blommaert, the present comptroller for the defendant, testified that the plaintiff was paid on the 15th of the month, for the entire month. The witness admitted that the earning statement did not indicate the pay period, but that the period was shown on a confidential payroll which was not introduced into evidence.
Defendant asserts that the plaintiff was impeached by numerous contradictory statements in her pretrial deposition and in the trial. A fairly typical example was the plaintiff's answer to the question in the pretrial hearing relative to the year the commission was changed from 2 1/2% over $150,000 to 1 1/2% over $200,000:
Further on in the pretrial deposition, she stated that the last oral agreement she had with the defendant was in February 1956. At the close of the oral interrogatories to the plaintiff and during the course of the same deposition, plaintiff's counsel propounded the following interrogatories to her and received the following answers:
The sole issue of fact pending at the trial was whether the parties had entered into an oral contract of employment on February 14, 1956. This issue was specifically and directly resolved by the jury in favor of the plaintiff by the following special interrogatory and the answer thereto:
Judgment for the plaintiff is affirmed and the orders denying the post-trial motions of the parties are affirmed.
FRIEND, P.J., concurs.
BURKE, J., dissenting:
Plaintiff, about 70 years of age, had been employed by the defendant for over 30 years. Upon the trial she was the sole witness in her behalf. Defendant operates a retail women's clothing store at the corner of Michigan Avenue and Randolph Street in Chicago.
She testified that on February 14, 1956, she had a conversation with Thomas Considine, Jr., at the store when he handed plaintiff her bonus check for the preceding fiscal year of 1955. She said that at this time Considine told her that her bonus arrangement would be changed from 2 1/2% over $150,000 to 1 1/2% of the net sales over $200,000. She inquired whether she would receive a raise in salary, to which he answered that the salary would be the same the coming year. The bonus check was in an envelope which she placed in a drawer without looking at the check. She told Mr. Considine she "had better make a note of that" and pulled out
She testified that in February, 1957, after the close of the 1956 fiscal year, she failed to receive her bonus based on the net sales of her department for the preceding year; that after making several requests of the comptroller, Mr. Wangnett, (deceased at the time of the trial) she was advised that no bonus checks had been issued for that year; that several months after January 31, 1957, she spoke to Vincent Considine, vice president of defendant, and that he told her there would be no bonuses for 1956 because the firm had failed to make any money. She responded that her bonus was not based on profits.
Thomas Considine, Jr., testifying for the defendant, denied that he presented the plaintiff with a bonus check for 1955, that he had a conversation with her on February 14, 1956 or that he promised her a bonus or commission based upon a percentage of the sales of her department. Vincent Considine testified that he handled defendant's fiscal matters; that in 1955 he became general manager and assumed the duties of his brother, Thomas Considine, Jr., who had become seriously ill; and that in 1955 and 1956 he presented plaintiff with a bonus check for the prior fiscal year. He testified further that he did not in 1955 or 1956 discuss with plaintiff the terms of her employment with the defendant; that bonuses had been paid to her for the fiscal years 1948 through 1955; and that the payment of and the amount of these bonuses was determined after the fact of performance and in the light of the defendant's over-all profit situation. No bonuses were paid for 1956 and 1957 to
Defendant maintains that the judgment is against the manifest weight of the evidence. Plaintiff, calling attention to the rule that this court will not substitute its judgment for that of the jury where the facts leave room for different conclusions to be drawn by reasonable men, insists that she established the existence of an oral contract of employment for the fiscal year 1956, and that the continuation of her employment into the fiscal year 1957 without a new agreement renewed the term of employment at the same rate of compensation. Plaintiff's case rests solely on her testimony that an oral agreement was entered into on February 14, 1956, between herself and the defendant through Thomas Considine, Jr. At that time he was president. At the time of the trial he was not employed by defendant. On the trial defendant testified that the alleged change from 2 1/2% to 1 1/2% occurred in 1956. In her pretrial discovery deposition she testified that the alleged change occurred in 1954. Her original statement of claim alleged that the percentage of her supposed bonus was 1 1/2% over $200,000 in 1954. It was not until her direct testimony at the trial that she said the 1 1/2% figure was first arrived at in 1956.
On direct examination she testified that during the alleged contract discussion with Thomas Considine, Jr. she asked him whether in view of the change in bonus percentage she would receive a greater salary and that he told her the salary would remain the same.
Plaintiff's allegations as to the creation of a contract of employment with the defendant on February 14, 1956, and the terms of such contract are denied
The financial data of the corporation pertinent to the case included the profit and loss position of the defendant, the gross business done by it, the aggregate bonuses paid to its employees, the bonuses paid to plaintiff and the sales of the department under plaintiff's control year by year. These exhibits served to corroborate the evidence of the defendant, to render improbable the testimony of the plaintiff and to support the theory of the defendant. This documentary evidence refuted plaintiff's allegations that defendant's practice was to pay her a bonus or commission computed in accordance with a predetermined agreement to pay her a bonus equal to a fixed percentage of the sales of her department. These records substantiate the contention of the defendant that bonuses were paid to employees after the fact of performance upon a discretionary basis related to profit. These bonuses were, both for the plaintiff and other employees, substantial in highly profitable years, moderate in less profitable years and nonexistent in years when the corporation experienced a loss.
A variation in practice from the contractual requirements asserted by plaintiff whereby she was to be paid a bonus check equal to 2 1/2% of sales in her department
Vincent Considine, in charge of the fiscal affairs of the defendant, testified that profitable operation of the corporation was a prerequisite to the payment of and the principal determinant of the size of the bonuses. His testimony is reinforced by the undisputed evidence of the corporate practice and is corroborated by plaintiff's attribution to him of a like spontaneous statement prior to any contemplation of a lawsuit. Plaintiff failed to establish a relationship or identity between her mode of compensation prior to the alleged express agreement relied upon and that provided by the alleged agreement. Her position at all times has been that this was a continuation of an old type of employment contract only different as to its rate. If plaintiff's testimony is taken at face value it would appear that her employer failed in regard to a bonus to live up to its contractual commitments to her for a decade, and yet she did not upon the presentation
Plaintiff points out that on cross-examination of Thomas Considine, Jr. it was elicited notwithstanding defendant's contention that it had never paid bonuses based on net sales to buyers, that there was an agreement made between Rudolph Schlam in 1947 whereby defendant agreed to pay Schlam, the buyer for the fur department, a salary plus a bonus based on 2 1/2% of net sales in excess of $400,000. When the hiring of Schlam was brought to Considine's attention by reference to a letter the witness's recollection was refreshed and he then explained the matter. It is significant that plaintiff, an employee for thirty years, failed to produce a witness in refutation of defendant's position that a buyer for the firm had received a bonus on the basis of the net sales of a department.
The judgment rests solely upon the testimony of plaintiff. There are serious contradictions and inconsistencies in her testimony. Her testimony in regard to pertinent aspects of the alleged conversation of February 14, 1956, has been impeached. There are no corroborative facts or circumstances supporting her allegations
"The constitution, which provides that the right of trial by jury as previously enjoyed shall remain inviolate, does not make the jury the final judges of the weight of evidence, and if a verdict is manifestly against the weight of the evidence it is the duty of the trial judge to set it aside and grant a new trial, and a failure to do so is error, for which a judgment must be reversed. (Chicago, Burlington and Quincy Railroad Co. v. Gregory, 58 Ill. 272; Henry v. Eddy, 34 id. 508; Lincoln v. Stowell, 62 id. 84.) In Belden v. Innis, 84 Ill. 78, the court said that in all cases where a verdict is manifestly and palpably against the weight of the evidence the judge in the trial court should promptly take the responsibility of setting aside the verdict, and a failure to do so is error. If a verdict is manifestly against the weight of the evidence, it is not necessary that it should further appear that it was not the result of the impartial and honest judgment of the jury, nor that it resulted from prejudice, passion or some improper motive or condition. To permit a verdict which is clearly and manifestly against the weight of the evidence to stand, upon the supposition that the jury were impartial and honest, would be as unjust and injurious to the defeated party as though it proceeded from passion, prejudice or some improper motive."
The part of given instruction No. 2 tendered by the plaintiff that if "defendant has not proved by the greater weight of the evidence that the parties agreed to any changes in the agreement of employment" tends to confuse the jury on the subject of the burden of proof. Plaintiff's given instruction No. 4 also has a
The judgment should be reversed and the cause remanded with directions to proceed in a manner consistent with these views.
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