Campion v. Boston & M.R.R.

• Decision Date: 03 January 1930
• Citation: 269 Mass. 579,169 N.E. 499
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CAMPION v. BOSTON & M. R. R.

269 Mass. 579

169 N.E. 499

CAMPION

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 3, 1930.

Exceptions from Superior Court, Suffolk County; Bishop, Judge.

Action by James E. Campion against the Boston & Maine Railroad. Verdict was directed for defendant, and plaintiff brings exceptions. Exceptions overruled.J. L. Sheehan, of Boston, for plaintiff.

R. W. Hale, of Boston, for defendant.

CROSBY, J.

This is an action to recover damages for an alleged breach of a contract for permanent employment. The declaration is in three counts, the first and second in contract, the third in tort.

The salient facts set forth in the bill of exceptions are that for several years before 1921 the plaintiff had been in the employment of the defendant; that during that year he was employed as a ‘spare’ tower man; that later during the same year the defendant published a bulletin showing a ‘permanent’ vacancy in the Wakefield Junction tower ‘second trick,’ which was ‘bid off’ by the plaintiff; that in 1923 the plaintiff was suspended and afterwards discharged on the ground of insubordination. It is the contention of the plaintiff that his contract with the defendant was one of permanent employment and that the defendnat had no right to discharge him. In support of his contention he introduced in evidence a ‘vacancy notice’ so called. It is undisputed that on this notice the vacancy referred to was termed ‘permanent’; that the defendant had no right to discharge him. accepted the position of tower man, second trick, at the tower of the defendant at Wakefield Junction; and that before this time he had been a spare man with no regular assignment. It is admitted by the defendant that it did advertise and invite bids for ‘permanent vacancy’ as distinguished from a ‘temporary vacancy.’

The defendant by inviting bids for a ‘permanent vacancy’ did not agree to employ a man for life or for any definite period of time without regard to his fitness for the position. Notwithstanding the plaintiff was hired to fill a ‘permanent vacancy,’ he could be later discharged by the defendant at any time it no longer desired his services.

The case at bar is plainly distinguishable from Carnig v. Carr, 167 Mass. 544, 46 N. E. 117,35 L. R. A. 512, 27 Am. St. Rep. 488, where there was evidence tending to show that if the plaintiff would give up his business and enter the service of the defendant, the latter would give him permanent employment at stipulated wages. In an action on the contract it was held that the defendant was not entitled to a ruling that the action could not be maintained. It was said by Morton, J., at page 547 of 167 Mass.,46 N. E. 117,35 L. R. A. 512, 57 Am. St. Rep. 488: ‘To ascertain what the parties intended by ‘permanent employment,’ it is necessary to consider the circumstances surrounding the making of the contract, its subject, the situation and relation of the parties, and the sense in which, taking these things into account, the words would be commonly understood. For it fairly may be assumed that the parties used and understood them in that sense. Schuylkill Navigation Co. v. Moore, 2 Whart. [Pa.] 477, 491. * * * The construction contended for by the defendnat, namely, that it was for him to say whether he needed the plaintiff's services or not, would put the plaintiff entirely...