The

had occurred which made your services of [ 29, 1909, as a discharge of appellant. little or no value to us, explaining this parties themselves did not so regard it and matter thoroughly to you and also explaining it to you that while we considered it our duty under the contract to continue your salary, it was also your duty to use all due diligence in procuring for yourself another position, so as to relieve us as soon as possible of the burden of paying your salary without any recompense. It does not seem to us that you have made any such effort. We do not know by whose authority or instructions you went to Europe, but we most certainly know it was not instructions from the Allegheny Steel Company. The Allegheny Steel Company takes the position that it had given you sufficient time to procure other employment, that you have made no effort whatever to do so and therefore its obligation to pay you a salary is ended. Personally I regret this very much but under the circumstances the company had no other course to pursue. I remain, very respectfully, [Signed] Allegheny Steel Co., Harry E. Sheldon, President."

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

Frank McC. Painter, for appellant. Alexander J. Barron and McKee, Mitchell & Alter, for appellee.

ELKIN, J. This is an appeal from an order dismissing the rule for judgment for want of a sufficient affidavit of defense. In our consideration of the case we do not have the benefit of the views entertained by the learned court below on the questions involved because no opinion was filed. The suit was brought to recover wages under a contract of employment for a definite term. The contract in terms gave to either party the right to declare a termination by giving 12 months' notice in writing. On April 29, 1909, appellee gave notice in writing to appellant of its intention to exercise this privilege by terminating the contract on May 1, 1910. In giving this notice appellee acted within its contractual rights, and appellant was bound by the terms of his own agreement. As the case then stood the relation of employer and employé was to continue until the time fixed by the notice for the termination of the contract, and appellant had the prima facie right to demand his salary up to May 1, 1910. If nothing had subsequently occurred between the parties, payment only would have been a defense in a suit to recover the salary for the remainder of the period named. Something did subsequently occur, and the questions involved here have to do with the subsequent occurrences. Are they sufficient to overcome the prima facie case upon which appellant stands, and, if so, to what extent is appellee relieved from this prima facie liability?

why should the courts? There is nothing in the language used to indicate an intention to discharge at that time, and the payment of the salary for several months after the notice was given can only mean that the party who gave it did not so understand it. It is averred in the affidavit of defense that about the middle of June, 1909, appellee notified appellant that he must diligently exert himself to secure other employment, and, unless he did so, all relations between the parties would be terminated and the payment of salary discontinued. In the light of this averment how can it be seriously contended that there had been a discharge in the preceding April? The averment was that the contract of employment had not been terminated at that time, but would be in the future, unless appellant diligently exert himself to secure other employment. There is the further averment that about the middle of August, 1909, the president of appellee company met appellant in Germany, and there learned that he was traveling in Europe for purposes of his own, and not for the benefit of appellee company. Upon learning these facts, appellee ceased to make further payments on account of salary, but it is apparent on the face, of the record that no notice of discharge or of refusal to pay further salary was given appellant at that time. Whatever reasons appellee had for so doing were not communicated to appellant. The record shows some time in October appellant by cablegram from Germany asked why his salary had not been paid. In answer to this cablegram appellee wrote the letter dated November 9, 1909. This is the first notice served on appellant that can be considered in the nature of a discharge.

It is contended that even this letter does not in any proper legal sense constitute a discharge. We cannot accept this view of the case. The rule is that no set form of words is necessary to constitute a discharge. Words which show a clear intention on the part of an employer to dispense with the services of an employé, equivalent to a declaration that the services of the employé will be no longer accepted, are sufficient. It is true the words used must convey to the servant the idea that his services are no longer required and will not be accepted. We are of opinion that nothing said or done by the appellee prior to the writing of the letter of November 9, 1909, conveyed to appellant the idea that his contract of employment had terminated, and that his services as an employé would be no longer compensated. In other words, up to that time nothing done by appellee was within the meaning of the law sufficient to constitute a discharge. On the other hand, we think the letter of November 9th was a sufficient notice of dis

While we hold the letter in question to be a sufficient notice of discharge, we do not now undertake to determine the question whether there was sufficient cause for discharge. The discharge may or may not have been wrongful, depending upon the facts and circumstances. If there be no dispute as to the facts, the court may determine as a matter of law whether there was sufficient cause, but, if the facts be disputed, the general rule is that the jury must determine whether or not the discharge was wrongful. Appellee contends under the authority of Corgan v. Lee Coal Company, 218 Pa. 386, 67 Atl. 655, 120 Am. St. Rep. 891, 11 Ann. Cas. 838, that it was not necessary to assign a valid reason in his notice of discharge, provided appellee had, in fact, a good reason for exercising the right to discharge.

The rule is that, where a servant has been discharged without sufficient cause before the expiration of his term of employment, he is entitled to recover wages for the whole term, but he is bound to make reasonable efforts to obtain employment elsewhere. We have held that the letter of April 29, 1909, was not a discharge, but was in effect a leave of absence with salary attached. That it was a leave of absence, and not a discharge, is shown by the letter of November 9th, in which it is expressly stated that appellant was given a leave of absence. If the jury shall determine that the discharge of November 9th was made without sufficient cause, the burden of showing that appellant by reasonable effort might have found other employment is upon the appellee.

[4] Such a defense is by way of mitigation, and the burden is upon him who asserts it. Emery v. Steckel, 126 Pa. 171, 17 Atl. 601, 12 Am. St. Rep. 857.

[5] Whether this defense is sufficient to overcome the prima facie case of appellant, or to what extent it may be considered to reduce the amount to be recovered, are questions of fact, to be determined by the jury.

[6] The duty of making a reasonable effort to secure other employment did not arise until there had been a final discharge. Prior to that time, the parties were acting under and bound by their contractual obligations.

[2] The rule announced in that case is sustained by ample authority, but, under the facts of the present case, we think it is for the jury to say whether a good cause for discharge existed when the letter of November 9th was written. It is also for the jury to determine in view of all the facts whether the discharge was made in good faith, and whether the reasons given therefor were not a mere subterfuge to dispense with the services of appellant so as to relieve appellee from the payment of salary under the terms of the contract. In our view of the case under the facts presented by the pleadings, appellant is entitled to recover full monthly [7] The learned court below simply refussalary up to and including November, 1909, ed to enter judgment for want of a sufficient the month when notice of discharge was giv-alidavit of defense, and under the motion en. His right to recover salary after No- nothing else could be done. Appellant was vember depends upon what the jury shall de- not entitled as a matter of law to judgment termine as to the discharge being rightful or for the whole sum demanded. The averwrongful. If appellant was rightfully dis- ments of the affidavit of defense raise some charged, he cannot recover salary; if wrong- questions of fact to be submitted to the jury. fully, his right to recover still exists under the contract.

[3] One more question should be adverted to, so that, when the case is tried in the court below, it may finally be disposed of.

Order of the court below dismissing the rule for judgment for want of a sufficient affidavit of defense is affirmed, and the record is remitted for the purpose of having a trial upon the merits.

TOURJEE v. MATTESON, Town Treasurer sion of the court was based upon the case

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

without any objection to the lapse of time | overruled, and the cases are remitted to the of more than one year after John Matteson superior court within and for the county of had ceased to be town treasurer of said Kent for further proceedings. town, it was too late to file any such motion

to dismiss, and the court erred in granting the same.

EVANS v. MUNRO.

1912.)

"4. That the fact that said Matteson had ceased to be town treasurer of said town of (Supreme Court of Rhode Island. May 11, Coventry on the 14th day of June, A. D. 1909, and that the new town treasurer, said 1. PHYSICIANS AND SURGEONS (§ 18*)-NEGGreene, was not summoned in to answer said case, until more than a year thereafter, is no ground for dismissing said action, and the court erred in granting said motion."

The plaintiffs' claims are as follows: "First. That the said decision in Saunders v. Pendleton is wrong, erroneous, and should be overruled.

"Second. That by entering the general appearance the defendant waived the right to make the motion to dismiss."

The consideration of this case involves the construction of Gen. Laws 1909, c. 283, § 13, which reads as follows:

"Sec. 13. No action, suit or proceeding, commenced or pending by or against any officer, receiver, or trustee, in his capacity as such, shall abate in consequence of his death, or of his ceasing to hold his office, place, or trust, within one year thereafter; but at any time within one year thereafter his successor in the office, place, or trust may come in and take upon himself, or he may be summoned in to take upon himself, the prosecution or defense of such action, suit or proceeding." Although the marginal notes to statutes are no part of the same, nevertheless they afford some indication of the construction placed thereon by the compilers thereof. The marginal notes accompanying the section under consideration read as follows: "Proceedings by or against any officer, receiver

LIGENCE-BURDEN OF PROOF.

In an action against a surgeon for alleged negligence, proof of the fact that a drain was left in an incision in the plaintiff's breast and allowed to remain there after the wound had healed, imposes upon the defendant the burden of explaining that its presence there was not due to his negligence.

[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. §§ 34-41, 43-46, 48; Dec. Dig. § 18.*]

2. APPEAL AND ERROR (§. 1005*)-RECEIVEDVERDICT-CONCLUSIVENESS.

A verdict on conflicting evidence, sustained by the trial judge, will not be disturbed on appeal.

[Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 3860-3876, 3948-3950; Dec. Dig. § 1005.*]

3. PHYSICIANS AND SURGEONS (§ 18*)-AcTION FOR NEGLIGENCE-DAMAGES.

leaving a drain in an incision, causing inflamFor injury from a surgeon's negligence in mation and requiring a subsequent operation for its removal, at which plaintiff's entire right breast was removed, a verdict for $1,250 was

not excessive.

Action by Jane A. Evans against Walter L. Munro. Judgment for plaintiff, and defendant excepts. Exceptions overruled, and cause remitted to superior court, with direc

tion to enter judgment on the verdict.

Plaintiff brought action against a surgeon, who had removed a tumor from her breast, for damages for injuries alleged to have been caused by his negligence in using a drain of improper material and in fastening it so that it slipped into and remained in the wound, causing inflammation and necessitating another operation, at which the The case was right breast was removed. tried before a jury, which returned a verdict for plaintiff for $1,250.

or trustee may be revived by or against his successor within one year." We have no doubt that the present actions are within the purview of this statute. See Saunders v. Pendleton, 19 R. I. 659, 36 Atl. 425. Nor have we any doubt as to the correctness of the doctrine announced in that case. Under the statute referred to, suits against an officer do not abate immediately upon a vacancy occurring in his office by reason of his death, or of his ceasing to hold the same, but become dormant, as it were, subject to be revived at any time within a year there- Littlefield & Barrows, of Providence, for after, by the appearance in court of his suc- plaintiff. Gardner, Pirce & Thornley, of cessor; but in case no successor makes ap- Providence (James A. Pirce and Hugh B. pearance within the year the suits abate by Baker, both of Providence, of counsel), for operation of law, by expiration of the time | defendant. within which they may be revived. In other words, the comatose condition of the suits terminates in their death. Having abated, they cannot be revived. Therefore the questions of general appearance, waiver, and the like have no application in the premises.

The plaintiffs' exceptions are therefore

PER CURIAM. [1] There is no merit in any of the exceptions of the defendant. There is no question but that the plaintiff was in the exercise of due care during the operation performed upon her by the defendant, and thereafterwards while under

PER CURIAM. The petitioner would receive no benefit from the granting of her petition. The same cannot operate to affect the decree of the probate court, entered June 26, 1909, appointing Varnum Steere administrator d. b. n. on the estate of Elliot S. Sayles, from which decree no appeal was taken by the petitioner, and the statutory time for granting relief by allowing an appeal to be taken has long since elapsed.

The petition of the said Laura M. Sayles is therefore denied and dismissed

SHAW v. STREICHER et al.
(Supreme Court of Rhode Island. May 11,
1912.)

APPEAL AND ERROR (§ 1005*)-REVIEW-CON-
FLICTING EVIDENCE.

A verdict rendered under suitable instruc

tions upon conflicting evidence and approved by the trial judge will not be disturbed, in the absence of a showing of improper motive or error in the approval.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3950; Dec. Dig. § 1005.*]

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Henry Shaw against Mark
From a decision for
Streicher and others.

plaintiff, defendants bring exceptions. Ex-
ceptions overruled, with directions.
William A. Heathman, of Providence, for
J. Jerome Hahn, of Providence,
plaintiffs.
for defendant.

PER CURIAM. The evidence in this case was conflicting, and was properly submitted to the jury under suitable instructions, and the verdict for the plaintiff has been approved by the justice of the superior court who In these circumpresided at the trial. stances, in the absence of anything to indicate that the verdict was the result of some improper motive actuating the jury, or that the judge erred in his approval, the verdict The newly disought not to be disturbed. covered evidence is not of such a character as to be likely to change the result, if another trial should be had.

The defendants' exceptions are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict.