#### McKEITHAN v. TELEGRAPH CO.

(Filed October 18, 1904).

1. CONTRACTS — Evidence—Master and Servant.

The evidence in this case shows a special contract between the employer and employee, whereby the former agreed to employ the latter for four months.

2. CONTRACTS — Burden of Proof — Master and Servant.

An employer relying on an employee’s incompetency as a justification for his discharge has the burden of proving the incompe-teney.

3. CONTRACTS — Master and Servant.

In an action for wages by a discharged employee for breach of the contract of employment, the employee being shown to be incompetent, it is immaterial whether this was the reason for his discharge.

ActiON by A. A. McKeithan against tbe American Telephone and Telegraph Company, beard by Judge R. B. Pee-bles and a jury, at February Term, 1904, of tbe Superior Court of Cumberland County. From a judgment for tbe plaintiff tbe defendant appealed.

I. A. Murchison and Robinson & Shaw, for the plaintiff.

N. A. Sinclair and R. H. Dye, for the defendant.

*214Montgomery, J.

Tbe plaintiff brought this action to recover of tbe defendant corporation $195, wbicb be claimed was due to him for a breach of contract of employment. The plaintiff alleged that his employment was for five months at $50 per month and his board, and that at the end of two months he was discharged without cause. The defendant denied the material allegations of the complaint. The only issue submitted to the jury was, “Is the defendant indebted to the plaintiff, and if so, in what sum ?” The defendant excepted to one of the instructions of his Honor, which was in these words: “If you believe the evidence of either plaintiff or defendant, you will find a special contract between the parties; that contract was to last five months and plaintiff was to be paid $50 per month and traveling expenses according to both parties.” We think the instruction was a proper one.

The plaintiff testified as follows: “I was to commence work for defendant company as soon as called for after January 1, 1902, and I was to continue for five or six months at least, and was to receive $50 per month and all expenses, including board and traveling expenses.”

T. E. Grafton, a witness for the defendant, who was the building inspector for the company and authorized to employ labor, upon the matter of the contract said: “I told plaintiff I did not care anything about testimonial; that if he would do my work it was all right; that it would not take me long to find out whether he could hold the job; that if he proved satisfactory we would need him until the line of that division was completed, which would take at least five months, but that if he could not do the work to my satisfaction then he would have to go, and that was all there was to it. He was to get $50 per month and all expenses, of which he had to keep an account.” In that connection his Honor gave such an instruction to the jury as enabled them to fully understand the reservation on the part of the defendant to discharge the *215plaintiff, sbonld be turn out to be incompetent for bis work. Not tbat it was necessary for the defendant to have explicitly reserved tbat right when be made tbe contract, for tbe law did tbat for bim, but tbat tbe jury might understand tbe right of the defendant.

His Honor said: “Another feature about this contract about which there is a dispute is: ‘Grafton said be was to have tbe privilege of discharging McKeithan if be did not suit bim. If you are satisfied by tbe greater weight of tbe evidence tbat was tbe bargain, then be had a right to discharge bim whenever bis services displeased him.’ ” The defendant made exception to tbat instruction, but why is not clear to us, because it presented tbat aspect of the case in tbe very strongest light for tbe defendant, tbat is, in view of tbe contract as found by tbe jury under tbe instructions of tbe Court.

There is an error, however, in one of tbe instructions of bis Honor which necessitates a new trial in this case. The defendant requested tbe Court to instruct tbe jury “tbat an employee hired to do certain work for a specified time upon condition tbat be is competent and fit for tbe work, if upon trial he proves incompetent and careless and unfit for the duties of the position, tbe master can discharge bim before tbe expiration of tbe time of hiring, and no legal obligation rests on tbe employer to pay for tbe unexpired time of hiring.” His Honor gave tbe instruction, but modified it by adding “tbat tbe burden of showing what tbe employment was rests upon tbe party tbat employs bim, tbat is, upon tbe defendant in this case, and unless be satisfies you by tlie greater weight of evidence tbat McKeithan was incompetent, and further tbat tbat is why be discharged bim; for if you find that tbe plaintiff was incompetent for this work by preponderance of evidence, and tbat tbe plaintiff ivas discharged on this account, tbe plaintiff is not entitled to recover.” His *216Honor was right so far as he instructed the jury that the burden of showing incompetency of the plaintiff rested on the defendant. The language of his Honor was explicit in that matter, and that is what he clearly meant when he said “the burden of showing what the employment was rests upon the party who employs him.”

In Deitrick v. Railroad, 127 N. C., 25, this Court said: “From such authority as we have, and upon common reasoning, we are of opinion that the burden of showing cause for the discharge was upon the defendant. If the plaintiff was able to show his alleged contract and that he was discharged during the term, he showed prima facie a breach of the contract and was entitled to damages unless the defendant could justify the breach by showing legal cause for the discharge.” But the latter part of the instruction, that is, that the defendant had to show that the plaintiff’s incompetency was the cause or reason for the plaintiff’s discharge, was erroneous. In a case like this one, the motive which prompted the defendant to discharge the plaintiff is wholly immaterial. The only question about it is whether there was a sufficient ground for the discharge. 20 Am. & Eng. Ency., 32; Spotswood v. Barrow, 5 Exch., 110; Kane v. Moore, 167 Pa., 275; Horse Shoe Co. v. Eynon, 95 Va., 151. In the same volume of the Encyclopedia, and at the same page, the author writes: “It it not necessary that the reasons for discharging the servant be stated at the time of the discharge; any adequate cause for dismissal, existing and known to the employer at the time, excuses and justifies the discharge, whether assigned or not, and although a different cause was assigned. It is also equally well settled at the present time that if a good cause of dismissal really existed, it is immaterial that at the time of the dismissal the master did not know of its existence, and acted upon some other causes which may have been insuffi*217cient.” And numerous authorities are there cited in support of each proposition.

The defendant was entitled to the instruction without modification. For that error there must be a

New Trial.