#### Green, Respondent, vs. Somers, Appellant.

*March 16*

April *11, 1916.*

*Master and servant: Wrongful discharge: Remedy of servant: Grounds for discharge: Insubordination: Questions for jury: Appeal: Direction of final judgment.*

1. Where an employee is wrongfully discharged, having been paid in full up to that time, his remedy is by action for damages for breach of the contract of employment and not by action for wages under the contract.

2. An employer has the right to give all lawful and reasonable commands deemed by him necessary to the proper management of his business, and the employee’s duty is to obey such commands where there is nothing in the contract of employment to relieve him from such duty.

3. Any inexcusable and substantial insubordination on the part of an employee, or wilful refusal to obey such commands amounting to insubordination, is good ground for discharge; but whether a mere breach of duty — it being in dispute whether wrong was intended or injury inflicted — is good ground for discharge, is a question for the jury.

4. Where the-facts are undisputed and it is certain that the disobedience is wilful and contumacious, it may be the duty of the court to determine as matter of law that the commands given were lawful and reasonable and the refusal to obey inexcusable; and if such be the case there is no question for the jury.

5. Commands, given by his employer to the general manager of a hotel, to appoint an assistant manager, to have the storekeeper *97make all purchases, to close the hotel laundry, and to discharge thfe help privately employed, are *held*as matter of law to have been lawful and reasonable commands which the manager wil-fully and inexcusably refused to obey; and the discharge of the manager because of such refusal was lawful.

6. In an action based on alleged wrongful discharge of an employee, the issue having been fully litigated and the testimony being all before this court, which holds that on the admitted facts the discharge was lawful, no new trial is necessary or proper, and final judgment for the defendant is ordered.

Appeal from a judgment of the circuit court for Milwaukee county: E. C. Eschweileb, Circuit Judge.

*Reversed.*

Action to recover one month’s salary and living expenses claimed to be due the plaintiff under a written contract. Tbe contract was made October 1, 1913, and by its terms the defendant employed the plaintiff as “general manager of the Plankinton House” in Milwaukee for the period of two years from that date at a salary of $7,500 per annum, payable in equal monthly instalments at the end of each month; the plaintiff being allowed to retain and occupy certain quarters in the hotel, then occupied by himself and family, so long as the hotel should remain open, and in case of the demolition of the hotel the plaintiff to be allowed and paid at the end of each month the necessary living expenses of -himself and family, not exceeding $300 per month, until other suitable quarters should be furnished him. The duties of the plaintiff as manager were not defined by the contract any further than they may be said to be defined by the use of the words “general manager.” The plaintiff was discharged and ceased to act as manager July 1, 1914, and this action is to recover his salary and living expenses for the month of July, 1914. The defendant justified the discharge by reason of plaintiff’s wilful refusal to carry out the defendant’s orders and instructions as to the management of the house.

The facts were not seriously in dispute. At some time prior to the making of the agreement in suit the defendant obtained a ninety-nir. e-year lease of the hotel property from *98tbe owners, tbe trustees of the estate of John Plankinton, and took possession thereof under such lease. Tbe plaintiff was at that time tbe manager of tbe hotel under tbe trustees and so continued until tbe execution of tbe contract hereinbefore set forth, after which be remained as manager under tbe contract aforesaid. Mr. George Harvey was tbe defendant’s personal representative in complete charge and control of bis interests in Milwaukee (which included other real property besides tbe hotel) and remained such representative until about May 1, 1914, when he was succeeded by bis brother, H. B. Harvey. Tbe hotel bad then been running at a loss of from $5,000 to $8,000 a month for some months and the defendant wished to curtail expenses and stop the loss if possible. The fact that the hotel was expected to be torn down in the near future to make way for a new building had a bad effect on the patronage of the house. H. B. Harvey had various conferences with the plaintiff during the month of May with regard to the management of the hotel and as to certain proposed retrenchments. They could not agree as to many things. On May 28th Harvey commenced issuing to the plaintiff written orders, the first one being an order to operate the hotel on both American and European plans. This was carried out by *Green*and other orders followed. *Mr. Green*objected that he had no evidence of Mr. Harvey’s authority to represent the owners. Proof of Harvey’s authority to represent the defendant being furnished, the disagreements still continued through the month of May. Out of some thirty or forty orders issued by Harvey the plaintiff absolutely refused to obey the following: (1) An order to appoint an assistant manager and issue all orders through him; (2) an order that he (plaintiff) should, when he was about to be absent from the hotel, leave a notification of the same on the books of the hotel naming the hours of leaving and returning; (3) an order directing the discharge of certain help retained by the plaintiff and his family and paid from the *99hotel funds; (4) an order directing that all purchases be made by the steward, who was at that time purchasing the foodstuffs but not the wines, liqiiors, and replacements; (5) an order directing that the hotel laundry be closed; (6) an order directing that one Blennerhasset, plaintiff’s uncle by marriage, who was living at the hotel, register as a guest and pay his board; and (7) an order that the upholsterer employed by the hotel be discharged. The plaintiff having finally refused to obey any of these .last named orders on June 30th, he was discharged on the following day.

A motion to direct a verdict for the defendant was overruled, and, the plaintiff being required to elect whether the action was on the contract for a specific month’s salary or for breach of the contract, elected that the action was on the contract for the month’s salary. Thereupon the cause was submitted to a jury, which returned a general verdict for the plaintiff for $625. Judgment being entered for the plaintiff on this verdict the defendant appeals.

For the appellant there was a brief by *Quarles, Spence &*Quarles, attorneys, and I. *A.*Fish, of counsel, and oral argument by *Mr. Fish.*

*Paul D. Durant,*for the respondent.

WiNsnow, C. J.

In this case it is held:

1. Where an employee is wrongfully discharged, having been paid in full up to that time, his remedy is by action for damages for breach of the contract of employment and not by action for wages under the contract. *Kennedy v. South Shore L. Co.*102 Wis. 284, 78 N. W. 567; *Ornstein v. Yahr & Lange D. Co.*119 Wis. 429, 96 N. W. 826.

2. An employer has the right to give all lawful and reasonable commands deemed by him necessary to the proper management of his business, and the employee’s duty is to obey such commands where there is nothing in the contract of employment to relieve him from such duty.

*1003. Any inexcusable and substantial insubordination on the part of an employee or wilful refusal to obey such commands amounting to insubordination, is good ground for discharge. *Thomas v. Beaver Dam M. Co.*157 Wis. 421, 147 N. W. 364; 26 Cyc. 992. Such a case is to be( distinguished from a case where there has been a mere breach of duty, it being in dispute whether wrong was intended or injury inflicted, in which latter case it is a question for the jury whether such breach is good ground for discharge. *Schumaker v. Heine*mann, 99 Wis. 251, 74 N. W. 785.

4. Where the facts are undisputed as in the present case and it is certain that the disobedience is wilful and contumacious, it may be the duty of the court to determine as matter of law that the commands given were lawful and reasonable and the refusal to obey inexcusable, and if such be the case there is no question for the jury. *Thomas v. Beaver Dam M. Co., supra; Jerome v. Queen City C. Co.*163 N. Y. 351, 57 N. E. 485.

5. In the present case it is held as matter of law that there were several lawful and reasonable commands given by the employer which the employee wilfully and inexcusably refused to obey, and among these were the commands (1) to appoint an assistant manager, (2) to have the storekeeper make all purchases, (3) to close the hotel laundry, (4) to discharge the help privately employed, and perhaps others.

6. Under the admitted facts the discharge was lawful, and a verdict for the defendant should have been directed whether the action be regarded as an action for wages on the contract or an action for damages for breach of the contract.

7. The testimony on the subject being all before the court and the issue as to the lawfulness of the discharge having been fully litigated, no new trial is necessary or proper. Einal judgment should now be ordered.

*By the Gourt.*— Judgment reversed, and action remanded with directions to render judgment for the defendant notwithstanding the verdict.