Daniels v. Boston & M.R. Co.

• Decision Date: 30 October 1903
• Parties: DANIELS v. BOSTON & M. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 337

68 N.E. 337

DANIELS v. BOSTON & M. R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 30, 1903

COUNSEL

J. B. Carroll and W. H. McClintock, for plaintiff.

Brooks & Hamilton, for defendant.

OPINION

LORING, J.

This is an action for breach of a written contract dated May 29 1891, whereby the defendant agreed, in settlement of claims which the plaintiff had against it for personal injuries while in its employ as freight brakeman and freight conductor, to employ him as station agent at its station in Fairlee, Vt., so long as he should perform the duties of the place in a thorough, honest, and businesslike manner. The plaintiff began work as station agent at Fairlee on June 10 1891, and was discharged on June 16, 1898. The defendant justified the discharge on the ground that he had been guilty of a number of shortcomings extending over nearly the whole of the period of his service. The case was sent to an auditor. It afterwards came on for trial before a jury. The jury were unable to agree, whereupon the judge directed them to find a verdict for the defendant, and the case comes here on an exception to that ruling. In submitting the case to the jury the presiding judge ruled that, if the plaintiff was entitled to recover, they could give him nominal damages only.

We are of opinion that the judge was wrong in directing a verdict for the defendant. The contract sued on was made in Vermont, and was to be performed in Vermont. The law of Vermont is the law which must be looked to in determining what would justify the defendant in discharging the plaintiff. The particular rule of law which is material here is how far the defendant corporation waived its right to discharge the plaintiff for a breach of duty by electing not to do so after the breach of duty came to its knowledge. A witness who was duly qualified to testify to the law of Vermont was asked this question: 'Supposing the railroad company were informed of the dereliction of duty of the employé, and the railroad company, through its proper officer having charge of the employé, wrote to the employé, 'We shall have to submit to the general superintendent the question whether a certain process of discipline will be sufficient to meet this case,' and we will suppose, after the matter was submitted to the superintendent, it was decided that a process of discipline would be sufficient, and the employé would be allowed to continue, would you not say that the railroad company had waived its right to discharge the employé for any preceding breach?' To this he replied: 'I should say they had, if nothing further occurs; but, if something further of the same kind occurs, they would have that additional cause.' The auditor found 'such to be the law in the state of Vermont.' The auditor's report was put in evidence at the trial, and no evidence was introduced there to contradict or control this finding of fact.

The last breach of duty on the plaintiff's part prior to the letter of June 4th, which the defendant relies on in connection with the plaintiff's previous shortcomings as a justification for discharging him, was in connection with the plaintiff's duty as telegraph operator at the station in question. The defendant was under a contract with the Western Union Telegraph Company to furnish a competent and reliable man to do their work, to be paid by the telegraph company. On May 28th, the defendant asked the plaintiff for an explanation of a delay in a message held at White River Junction from 2 p. m., May 26th, until 8:05 a. m. of May 27th, 'on account of that office being unable to raise you.' The plaintiff's explanation was that he was away on that day, and his man might have plugged the telegraph instrument while talking over the telephone and have forgotten to take it out when he got through speaking on the telephone. On June 3d the defendant's superintendent, Folsom, wrote to the plaintiff acknowledging receipt of his letter of explanation, and, after stating the facts, wrote: 'While I should not wish to apply discipline against you on account of it if it was the first case of this kind, must do so in view of the frequent trouble we have with your office in connection with telegraphing; and you must, if you wish to remain there, so conduct the office as to avoid these complaints.' It was found by the auditor that 'in 1897 a system of 'discipline marks,' as it was called, was adopted by the defendant, by which was meant that in case of any failure on the part of an employé to properly perform duties required of him certain discipline or demerit marks were put down against his name on a record book kept in the office of the division superintendent.' We are of opinion that the plaintiff is right in his position that the defendant elected not to discharge the plaintiff for the breach of duty in connection with the dispatch of May 28th, and the question arises whether the letter of June 4th was a breach of duty on the part of the plaintiff, which, taken with the previous shortcomings for which the defendant had elected not to discharge him, justified his discharge under the law of Vermont. The defendant has argued that under the findings of the auditor the question for the jury was whether the letter of June 4th, taken in connection with the previous delinquencies for which discipline marks were imposed, justified the defendant in discharging the plaintiff. The finding relied on here is that matters for which discipline marks were applied were not waived. But this and the preceding finding 'that until the use of discipline marks, the defendant, by continuing to employ the plaintiff after knowledge of his delinquencies, waived the same,' are conclusions of law, and are inaccurate, if not wrong. By continuing to employ the plaintiff after knowledge of his delinquencies, whether before and after the use of discipline marks, the defendant, elected not to discharge the plaintiff for those shortcomings, but as matters to be taken into account in case of a subsequent breach of duty they were not waived. By continuing to employ the plaintiff after knowledge of a breach of duty the defendant waived its right to discharge him for that, but it did not waive the breach of duty, and in case of a subsequent shortcoming on the plaintiff's part the defendant had a right to take the plaintiff's whole record into account.

The question...