Broussard v. Melong

• Decision Date: 01 April 1948
• Citation: 78 N.E.2d 623,322 Mass. 560
• Parties: BROUSSARD v. MELONG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 560

78 N.E.2d 623

BROUSSARD

v.MELONG et al.

Supreme Judicial Court of Massachusetts, Norfolk.

April 1, 1948.

Appeal from District Court of East Norfolk; Mulhall, Judge.

Action of contract to recover value of personal services by Lottie C. Broussard against Leonard F. Melong and another. From an order of the Appellate Division dismissing the report, the defendants appeal.

Order affirmed.

Before QUA, C. J., and RONAN, WILKINS, SPALDING, and WILLIAMS, JJ.

D. E. Smart, of Quincy, for plaintiff.

M. H. Kramer, of Quincy, for defendants.

WILLIAMS, Justice.

This is an action of contract to recover the value of personal services brought in the District Court of East Norfolk. After a finding for the plaintiff, questions of law raised by the denial of the defendants' requests 1, 2, 3 and 4 were reported to the Appellate Division. From findings of fact made by the judge it appears that the plaintiff was employed by the defendants to work as a cook in a diner at a wage of 94 cents per hour for an eight hour day, six days a week. Without mentioning any rate of pay, she was told by the defendants that she would be paid for overtime. She worked thirty-six ten hour days and was paid 94 cents per hour. This action is to recover the overtime pay for seventy-two hours. The judge stated that in finding the amount of damages he took judicial notice of the compensation commonly paid for overtime in the vicinity of the employment.

The defendants have appealed from an order of the Appellate Division dismissing the report.

Requests 1 and 2 in substance ask for rulings that, as matter of law, the plaintiff is not entitled to recover. Requests 3 and 4 seek rulings to the effect that the plaintiff is bound by the provisions of G.L.(Ter.Ed.) c. 149, § 56, and if she contracted to be employed more than forty-eight hours in any one week, or for more than nine hours in any one day she is not entitled to recover for overtime wages.

The pertinent language of G.L.(Ter.Ed.) c. 149, § 56, as amended, St.1941, c. 574, is: ‘No * * * woman shall be employed or permitted to work in, or in connection with, any * * * mercantile * * * establishment * * * more than nine hours in any one day * * *; and in no case shall the hours of labor exceed forty-eight in a week * * *.’ By § 57, a penalty is imposed on any one who employs any person in violation of § 56. The purpose of the statute is protection of the health of women. Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383;Commonwealth v. Riley, 210 Mass. 387, 97 N.E. 367, Ann.Cas.1912D, 388, affirmed, Riley v. Massachusetts, 232 U.S. 671, 34 S.Ct. 469, 58 L.Ed. 788;Commonwealth v. John T. Connor Co., 222 Mass. 299, 110 N.E. 301, L.R.A.1916B, 1236, Ann.Cas.1918C, 337.

In Bowditch v. New England Mutual Life Ins. Co., 141 Mass. 292, 293, 295, 4 N.E. 798, 800,55 Am.Rep. 474, Morton, C.J., said, ‘It is a rule universally accepted that, if a statute prohibits a contract in the sense of making it unlawful for any one to enter into it, such a contract, if made, is wholly void, and cannot be enforced. * * * Each statute must be judged by itself as a whole, regard being had, not only to its language, but to the objects and purposes for which it was enacted. If the statute does not declare a contract made in violation of it to be void, and if it is not necessary to hold the contract void in order to accomplish the purpose of the statute, the inference is that it was intended to be directory, and not prohibitory of the contract’.

In Huey v. Passarelli, 267 Mass. 578, 581, 166 N.E. 727, 728, the court quoted from Harris v. Runnels, 12 How. 79, at page 84, 13 L.Ed. 901, ‘It is true that a statute, containing a prohibition and a penalty, makes the act which it punishes unlawful, and the same may be implied from a...