Opinion
William Thomas, Robert H. Frick, Louis S. Beedy, and James Lanagan, for appellant.
H. W. Hutton, for appellee.
Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.
GILBERT, Circuit Judge (after stating the facts as above).
We find no ground for disturbing the conclusion reached by the court below that the appellee was wrongfully discharged. That conclusion was reached upon the consideration of testimony which was taken in open court, and the record does not sustain the contention that the
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court erred in so finding.
The appellee, it is true, on one or two occasions, used rough language, and was insolent toward the owner of the boat, who was also the mate, but the offense so committed does not seem to have been seriously considered at the time, and when the appellee was discharged some six weeks later, at the time when all the other employes of the boat were discharged, and the boat was laid up, the controlling reason for his discharge is found in those facts, rather than in his insubordination and breach of duty, which occurred six or seven weeks before.
It is contended that the court below committed error in finding the amount due the appellee. It is not denied that, if he was wrongfully discharged, he was entitled to $450, the unpaid balance of the agreed upon compensation for six months' service, less any sum he could have earned in the period between August 1st and September 25th. Under the contract, he was entitled to his wages at $100 a month from September 25th to the date of his arrival at Seattle, and also to the cost of his transportation to Seattle. He testified, and there is no evidence to the contrary, that from the 1st to the 28th of August he could find no employment, and that the expense of his maintenance during that period was $81, and that he worked on the Martha Clow from the 28th of August to the 2d of October, and earned $204. When to the $450 admitted to be due under the contract there is added $125, the cost of transportation to Seattle, together with the wages which were due the appellee for the time engaged in returning to Seattle, and when from the sum of these amounts there is deducted the proportion of the net earnings of the appellee between the date of his discharge and September 25th, it will be found that the result is almost exactly that which was reached by the court below.
We find no error. The decree is affirmed, with interest and costs to the appellee.
*For other cases see same topic & Sec. Number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes.