Clement v. Rev-Lyn Contracting Co.

• Decision Date: 24 April 1996
• Docket Number: No. 95-P-50,REV-LYN,95-P-50
• Citation: 40 Mass.App.Ct. 322,663 N.E.2d 1235
• Parties: Edward G. CLEMENT, Jr. v.CONTRACTING COMPANY & another. 1
• Court: Appeals Court of Massachusetts

Page 1235

663 N.E.2d 1235

40 Mass.App.Ct. 322

Edward G. CLEMENT, Jr. v. REV-LYN CONTRACTING COMPANY & another. ¹

No. 95-P-50.

Appeals Court of Massachusetts Suffolk.

Argued Feb. 15, 1996.

Decided April 24, 1996.

Further Appellate Review Denied June 5, 1996.

CIVIL ACTION commenced in the Superior Court Department on May 18, 1989.

The case was tried before Hiller B. Zobel, J.

Howard G. Guggenheim, Plymouth, for defendants.

David F. Cavers, Jr., Boston, for plaintiff.

Before ARMSTRONG, GILLERMAN and IRELAND, JJ.

GILLERMAN, Justice.

From September, 1986, until the termination of his employment on August 8, 1988, Edward G. Clement, Jr., was an estimator and foreman for Rev-Lyn Contracting Company (the corporation). The corporation, forty-nine per cent of which was owned by the defendant Ralph L. Beaudoin, ² was in the marine contracting business.

In the action Clement brought against the corporation and Beaudoin, the jury, answering special questions, found that Beaudoin wrongfully interfered with Clement's employment by the corporation, and that Beaudoin's wrongful interference was the proximate cause of Clement's damages in the amount of $45,000. The jury also found that Beaudoin had slandered Clement, that the slanderous remarks were not privileged, but that Clement suffered no damages as a result of the slanderous remarks. ³

Following the verdict of the jury, the judge, over the defendant's objection, allowed Clement's motion to amend the complaint by adding the corporation as a party defendant to the count regarding wrongful interference. ⁴ Thereafter, judgment was entered against both defendants on the wrongful interference claim, and subsequently the defendants' motions for new trial and for judgment notwithstanding the verdict were denied. ⁵ The defendants filed a timely notice of appeal.

We conclude that the judgment against the corporation must be reversed and the claim of wrongful interference against the corporation dismissed, and that there must be a new trial of the claim against Beaudoin as a result of an error in the judge's instructions to the jury on the wrongful interference claim.

1. The judgment against the corporation. Clement acknowledges that his task of preserving the judgment against the corporation requires "departing from the usual rule" that malicious interference by a supervisory employee will not be imputed to the employer. See Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 663 n. 3, 429 N.E.2d 21 (1981); Riseman v. Orion Research, Inc., 394 Mass. 311, 314, 475 N.E.2d 398 (1985); Mailhiot v. Liberty Bank & Trust Co., 24 Mass.App.Ct. 525, 528, 510 N.E.2d 773 (1987); see also Saint Louis v. Baystate Med. Center, Inc., 30 Mass.App.Ct. 393, 404, 568 N.E.2d 1181 (1991). Clement makes the argument that if liability can be imposed on an employer who terminates an at-will employee in violation of clearly established public policy, see Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416, 522 N.E.2d 975 (1988), then vicarious liability should be imposed when an at-will employee is discharged with actual malice by a supervisor acting within the scope of his or her employment. To permit the existing distinction, the argument runs, is merely to select violations of public policy as more deserving of protection than malicious acts of supervisory employees--a choice that cannot rationally be defended.

We will not enter that debate, and consider the result in this case controlled by the cases cited above, ⁶ all of them relatively recently decided. See also Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 404 Mass. 145, 150, 533 N.E.2d 1368 (1989). The judge was in error in entering judgment against the corporation.

2. The judge's instruction regarding Beaudoin. The judge's instructions to the jury regarding the claim of intentional interference reduced the issue of the validity of Clement's termination to the question whether Beaudoin did it "in a reasonable way." ⁷ The defendant objected, citing Wright v Shriner's Hosp. for Crippled Children, 412 Mass. 469, 476, 589 N.E.2d 1241 (1992).

The judge's instructions were not consistent with Wright v. Shriner's Hosp. for Crippled Children, supra, and if the error injuriously affected the substantial rights of Beaudoin, there must be a new trial. See Timmons v. Massachusetts Bay Transp. Authy., 412 Mass. 646, 652, 591 N.E.2d 667 (1992).

In an action for intentional interference with contractual relations, the plaintiff must prove that the defendant intentionally interfered with the business relationship of the plaintiff with a third person, and that such intentional interference was improper in motive or means. See United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816 & n. 8, 551 N.E.2d 20 (1990); Melo-Tone Vending, Inc. v. Sherry, Inc., 39 Mass.App.Ct. 315, 316, 318, 656 N.E.2d 312 (1995). See Restatement (Second) of Torts §§ 766-767 (1979). Where, as here, the termination is by a supervisor acting within the scope of his responsibilities, ⁸ the supervisor (Beaudoin) "was privileged to act as he did," but the plaintiff may prevail if he proves that the supervisor "acted out of malevolence, that is, with 'actual' malice." Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 663, 429 N.E.2d 21 (1981). See also Wright, supra at 476, 589 N.E.2d 1241 (there is a right to fire an at-will employee unless the termination is "for a spiteful, malignant purpose, unrelated to the legitimate corporate interest"); Sereni v. Star Sportswear Mfg. Corp., 24 Mass.App.Ct. 428, 432-433, 509 N.E.2d 1203 (1987).

While Clement presented evidence (and the jury found) that at a meeting on August 9, 1988, Beaudoin grossly slandered Clement in the presence of other employees without justification, and while Clement also presented evidence that Beaudoin, at the August 9 meeting, threatened Clement with physical violence if he showed up for work the next day (all of which was sufficient to warrant the finding that Beaudoin acted with a malignant purpose), there was also evidence presented by Beaudoin ⁹ that he did not act out of a "spiteful, malignant purpose, unrelated to the legitimate corporate...