Stevens v. GL Rugo & Sons

• Citation: 209 F.2d 135
• Decision Date: 17 December 1953
• Docket Number: No. 4721.,4721.
• Parties: STEVENS v. G. L. RUGO & SONS, Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

209 F.2d 135 (1953)

STEVENS v. G. L. RUGO & SONS, Inc.

No. 4721.

United States Court of Appeals First Circuit.

Argued November 3, 1953.

Decided December 17, 1953.

Rehearing Denied January 5, 1954.

Austin Broadhurst, Boston, Mass. (Charles W. Bartlett and Ely, Bartlett, Thompson & Brown, Boston, Mass., on the brief), for appellant.

John F. Hurley, Boston, Mass., for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

The plaintiff, who sets himself out as a "citizen of England and national of the Kingdom of Great Britain," brought suit in the court below against the defendant, a corporation organized under the laws of the Commonwealth of Massachusetts, to recover damages for breach of a contract of employment.¹ Trial before a jury began in the District Court on October 15, 1952, and on the same day at the close of the plaintiff's evidence the defendant moved for a directed verdict on the ground of "lack of evidence produced by plaintiff." The court reserved action on the motion and the defendant thereupon proceeded to put in its evidence. On the following day at the close of all the evidence, the defendant did not move for a directed verdict and the case was submitted to the jury which returned a verdict for the plaintiff in the sum of $10,500. The defendant made no motion to set the verdict against it aside or for a new trial, but nevertheless on November 3, 1952, the court ordered hearing on the motion which the defendant had made for a directed verdict on the evidence introduced by the plaintiff. The court took the motion under advisement and on January 5, 1953, it entered the judgment from which the plaintiff has taken this appeal wherein the court in accordance with its memorandum opinion ordered judgment for the defendant dismissing the plaintiff's complaint, and in addition ordered "that in the event the foregoing judgment is reversed the verdict is set aside and new trial had."

It is evident from the District Court's memorandum opinion that the basis for its order dismissing the plaintiff's complaint, and directing judgment for the defendant on its motion for a directed verdict based on the plaintiff's evidence, was the plaintiff's own testimony as to his understanding of the meaning of the contract involved, to which we shall presently refer. It is equally evident from the opinion that the trial court entertained misgivings, in view of some of the language in Johnson v. New York N. H. & H. Ry. Co., 1952, 344 U.S. 48, 73 S.Ct. 125, as to its power to enter a judgment for the defendant on the latter's motion therefor at the close of the plaintiff's evidence, as to which it had reserved decision, and that, because of its doubts, the court entered its alternative order for a new trial so that in the event its action ordering a judgment for the defendant should be held on appeal to be beyond its powers, it could, in advance of a second trial, reach the same result by granting a motion by the defendant for a summary judgment based on the testimony introduced at the trial. Thus the first and foremost question on this appeal is whether under the law of the Commonwealth of Massachusetts, which concededly and obviously applies, there is evidence enough to warrant submitting the plaintiff's case to a jury.

The plaintiff is a chartered quantity surveyor and estimator, and a member of the Institute of Chartered Surveyors in London. He was trained in England, and up to 1949 he had pursued his occupation of estimating the quantities and costs of materials required for the erection of buildings and other structures, at first in England, and later for about four years in the British West Indies. Early in 1949 he answered an advertisement for an "A-1 Estimator" inserted in a trade publication by the defendant, and in response thereto received a letter from the defendant's president stating that the place of the employment offered was Boston, Massachusetts, and that "the position is permanent." Further correspondence followed, and early in September the plaintiff gave up his position in the West Indies as chief estimator for a firm of English architects, and came to the United States with his family. He and the defendant's president met in Boston for an interview at the latter's office, following which the plaintiff went to England, settled his affairs there, and late in March, 1950, returned to the United States with his family on permanent immigration visas. On the 6th of April he went to work for the defendant at a salary of $150.00 a week. His employment, however, was short lived, for on May 26, the defendant's president complained to the plaintiff with respect to the quantity and quality of his work and his attitude toward it, and discharged him as of the first of June.

The contract of employment involved in this litigation was not reduced to writing. Its terms, therefore, must be drawn from the correspondence which passed between the plaintiff and the defendant's president and their testimony as to what they said to one another. The defendant's president testified in substance that he told the plaintiff that the position offered was "permanent," as he had said in his letter to the plaintiff quoted from earlier in this opinion, in the sense that the defendant's business prospects were bright and there was good reason to believe that it would need the services of a skilled estimator for an indefinite time. Furthermore, he said he told the plaintiff and the plaintiff fully agreed, that at the outset of the employment there would be a trial period of three months in order not only to determine whether the plaintiff was qualified to do the work and fitted harmoniously into the defendant's organization, but also to determine whether the plaintiff found his employment by the defendant congenial. There is no reference in the correspondence to an initial trial period, and the plaintiff testified categorically that nothing whatever was said about such a period in any conversation with the defendant's president, but that he came to the United States with his family on the understanding that he was to have permanent employment with the defendant from the beginning.

The District Court recognized that on the evidence outlined above the jury could reasonably find that the defendant offered and the plaintiff accepted "permanent" employment as defined in Carnig v. Carr, 1897, 167 Mass. 544, 46 N.E. 117, 35 L.R.A. 512, from the start of their relationship. Nevertheless it entered judgment for the defendant because of the plaintiff's testimony as to his understanding of the meaning of the word "permanent." Stevens said, in response to questions by the court:

"As I understood it, when Mr. Rugo wrote to me and told me the job was a permanent one and also when he told me in my interview with him that the job also was a permanent one, as I understood it there was plenty of work to be done and as far as one could see there was no reason to assume that this work would not cease — that this work would cease, and providing I was satisfactory to Mr. Rugo, and providing we got on with each other, and providing I did the job, and providing there was work to do, I could assume that the job really had a long term possibility.

* * * * * *

"I understood the word "permanent" to mean, your Honor, the job had plenty of future in it, I could dig myself in in the job and know very well that providing I was satisfactory to Mr. Rugo, and providing naturally — well, if you like, Mr. Rugo was satisfactory to me, and providing I liked working in the office, providing I did my job, I could remain there on an established basis and not as — on the other hand, as opposed to a temporary basis where one goes in for a particular job or goes in for two or three months, and then he is told he has to find another job, or that job will be finishing in a certain time."

The District Court said that it was clearly apparent from these statements that Stevens understood that the position offered him was permanent, but that his employment in it "was at will until each party knew the relationship was satisfactory." Wherefore the court concluded that since the plaintiff was discharged before mutual satisfaction had been established, the plaintiff could not recover as a matter of law. We feel constrained to disagree for we think the court misconstrued the plaintiff's testimony quoted above.

As we have already pointed out the plaintiff testified definitely that no trial period was agreed upon, or even mentioned, but that he was employed permanently from the outset. Thus when he defined what he meant by "permanent" we do not think he could have intended to frame his definition in such a way as to include an initial period of trial to determine mutual satisfaction. Instead we think he intended to define "permanent" not as meaning forever or for life, but as meaning only for as long as there was work to do and each party was satisfied with the relationship. And this, in essence, is the usual definition of the word in contracts such as the one under consideration.

The word "permanent" is not infrequently used in contracts of employment, but not in its absolute sense of everlasting or enduring forever without change, or even as enduring for life. It is used in a relative sense to distinguish transient or temporary employment for some fixed, and usually limited time, as for a period of days, weeks, months or even perhaps years, or until the completion of a given piece of work or the happening of some event. Its meaning is elastic, depending upon the context in which and the background against which it is used, but its meaning is not for that reason so indefinite that a promise of permanent employment cannot be enforced. As used in a contract of employment it "may fairly be held to mean that the employee is to serve so long as he remains able to do his work properly, and the employer continues to be engaged in...