Dalton v. Post Pub. Co.
| Decision Date | 08 April 1952 |
| Parties | DALTON v. POST PUB. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
E. J. Campbell, Brockton, for plaintiff.
A. C. Blake, Boston, for defendant.
Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.
This is an action of contract in which the plaintiff, a former employee of the defendant, seeks to recover severance pay to which, he alleges, he is entitled as a result of being discharged from his employment. There was a verdict for the plaintiff. The exceptions of the defendant which have been argued are stated in the opinion.
The action was entered in the Superior Court on October 4, 1948, at which time the plaintiff filed a claim for trial by jury. On November 10, 1950, he filed a written waiver of this claim signed both by him personally and by his attorney. On January 2, 1951, he moved that he be 'granted trial by jury.' The motion was allowed and the defendant excepted. There was no error. The record discloses nothing to warrant a conclusion that the discretion vested in the judge was abused. G.L.(Ter.Ed.) c. 231, § 60. Dolan v. Boott Cotton Mills, 185 Mass. 576, 578, 70 N.E. 1025; Gouzoulas v. F. W. Stock & Sons, 223 Mass. 537, 538, 112 N.E. 221; Solomon v. Boylston National Bank, 269 Mass. 589, 592, 169 N.E. 518.
The plaintiff had been employed by the defendant, the publisher of a newspaper in Boston, since 1919, and after 1926 was a bookkeeper in the circulation department of which one Gray was in charge. The plaintiff testified as follows. On the morning of February 9, 1943, he was not feeling well and telephoned Gray that he was going to stay out. Gray asked him what was the matter and he told Gray that he was going to the Quincy court in connection with some litigation regarding his father's estate. On the following day when he reported for work Gray said that he had checked with the Quincy court and found that the plaintiff had not been there. Gray said, 'That was a lie, wasn't it?' and the plaintiff replied, 'Yes, I hadn't been there, and that was a lie.' Gray then said, 'You have outlived your usefulness with this company, and you are fired.' He added that it 'might give me a better record with the company if I resigned.' On the same date, he wrote a resignation in longhand reading, 'I herewith tender my resignation, to take effect immediately,' signed it, and left it with Gray.
Gray testified that after the plaintiff had admitted lying he, Gray, said, The plaintiff said, 'Am I going to be fired?' Gray said, 'I don't know, but you ought to be,' and 'with that he left my office.' The plaintiff returned in two or three minutes with the resignation and, after some talk, Gray said, 'I accept it.'
The defendant offered evidence that the plaintiff's work had been unsatisfactory for some time, that he was behind in his work on occasions, that he was absent more than he should be, that he did not seem to be interested in his employment as much as he should be, that he came in late quite frequently and would take considerable time for his lunch, and that when the plaintiff left on February 10, 1943, the six months' circulation report was not in good shape.
At the time when the plaintiff left the defendant's employment there was an existing contract between the defendant and an organization of its employees of which the plaintiff was a member providing as follows:
The plaintiff testified that on February 12 he wrote a letter to the defendant's manager, which letter was introduced in evidence and read, 'Please send me * * * a complete statement showing the causes for my dismissal * * * on February 10, 1943.' The manager replied on February 13, stating in substance that in view of the plaintiff's resignation there was no occasion for sending the statement as requested. It did not appeal when the letter of the plaintiff was received.
At the conclusion of the evidence the defendant requested an instruction reading, 'If the plaintiff resigned, or he was discharged for gross neglect of duty or for gross misconduct, he is not entitled to recover.' The defendant excepted to the denial of this request. The judge charged the jury that if the plaintiff was discharged he was entitled to severance pay and that if he resigned he was not. He said nothing relating to gross neglect of duty or gross misconduct. After the charge there was the following colloquy between the judge and counsel:
'Counsel for the defendant: Counsel for the defendant has excepted to the failure of the court to instruct the jury that if the jury found that the plaintiff was guilty of gross misconduct or gross neglect of duty, and was discharged for either reason-- 'The Judge: The court declines to do so, and says that the defendant has chosen to rely upon the proposition that the employment was terminated by resignation, and further, the court had earlier pointed out to counsel that it was open to him to argue that the resignation had been tendered in lieu of charges of gross misconduct.
'Counsel for the defendant: Could I say I don't quite recall your Honor putting it in so many words? The record will speak, of course, as to that.
'Counsel for the plaintiff: You spoke about that, Judge. In fact I raised the issue that you couldn't, because he asked for it. You said: 'There is no occasion for my setting it forth.'
'The Judge: It is a matter of argument on the facts but not on the law.
'Counsel for the defendant: My exception is saved?
'The Judge: Yes.'
If the employee was discharged he was entitled...
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