Johnson v. U.S. Steel Corp.

• Decision Date: 04 December 1964
• Citation: 348 Mass. 168,202 N.E.2d 816
• Parties: , 1 Fair Empl.Prac.Cas. (BNA) 76 George H. JOHNSON v. UNITED STATES STEEL CORPORATION. . Worcester
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 816

202 N.E.2d 816

348 Mass. 168, 1 Fair Empl.Prac.Cas. (BNA) 76

George H. JOHNSON v. UNITED STATES STEEL CORPORATION.

Supreme Judicial Court of Massachusetts. Worcester.

Argued Oct. 9, 1964.

Decided Dec. 4, 1964.

Charles W. Proctor, Holden, for plaintiff.

Francis P. O'Connor, Boston, for the defendant.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

SPALDING, Justice.

The plaintiff's amended declaration is in five counts. The first, second, third, and fifth in so far as they are the same, allege the following: The plaintiff was employed by the defendant as a turn superintendent. The defendant discharged the plaintiff when he was sixty-three years of age, without cause, in violation of G.L. c. 149, § 24A (inserted by St.1937, c. 367, § 2). This was done with the intention of depriving the plaintiff of certain benefits. At the time of the discharge there was work available for the plaintiff and he was capable of performing it.

Counts 1, 2, 3, and 5 differ only with respect to the losses alleged to have been sustained by the plaintiff as a consequence of the wrongful discharge. These are loss of wages (count 1), loss of contributions which the defendant should have made to a mutual savings plan (count 2), loss of medical payments under a policy of insurance carried by the defendant for its employees (count 3), and loss of pension payments (count 5).

In count 4 the plaintiff alleges that the defendant paid him on a monthly basis for a period of six years prior to June 1, 1960; that this method of payment was in violation of G.L. c. 149, § 148, which requires weekly payments; and that as a consequence the plaintiff was deprived of the use of his money and was entitled to interest which, at six per cent, amounts to $966.24.

The defendant's demurrer to each count of the declaration was sustained and the right to amend was denied. The plaintiff appealed.

1. The sufficiency of counts 1, 2, 3, and 5 depends on whether G.L. c. 149, § 24A, gives the plaintiff a civil remedy. Section 24A reads: 'It is hereby declared to be against public policy to dismiss from employment any person between the ages of forty-five and sixty-five, or to refuse to employ him, because of his age.'

Whether § 24A, strictly speaking, is a penal statute need not be decided. For present purposes it is enough to say that it is at least analogous to one. Under the sanction provided by G.L. c. 149, § 24G, 'the commissioner [of labor and industries] may cause to be published in a newspaper or newspapers circulating within this commonwealth or in such other manner as such commissioner may deem appropriate, the name of such employer as having failed to observe the provisions of said sections.' If, as we need not decide, this sanction is not a 'specific penalty,' the violator of § 24A is liable to a fine. In such case the statute would clearly be penal. By G.L. c. 149, § 180, it is provided that '[w]hoever violates a provision of this chapter for which no specific penalty is provided shall be punished by a fine of not more than one hundred dollars.'

Nowhere in c. 149 is any express civil remedy provided for the violation of § 24A. And there is no basis for implying one. '[P]enal statutes have been construed as creating a new cause of action * * * if, and only if, that appears by express terms or by clear implication to have been the legislative intent.' Mezullo v. Maletz, 331 Mass. 233, 238, 118 N.E.2d 356. Compare Gallagher v. Wheeler, 292 Mass. 547, 198 N.E. 891. This principle of statutory construction had its genesis in cases which held that the violation of a penal statute was not negligence per se, but was merely evidence of negligence as to all consequences the statute was designed to prevent. See, e. g., Wynn v. Sullivan, 294 Mass. 562, 3 N.E.2d 236 (statute designed to insure safety in the maintenance and operation of elevators); Aldworth v. F. W. Woolworth Co., 295 Mass. 344, 3 N.E.2d 1008 (statute requiring means of escape from fire for certain buildings); Harsha v. Bowles, 314 Mass. 738, 51 N.E.2d 454 (statute requiring the setting of flares around disabled vehicles). See also discussion in Falvey v. Hamelburg, Mass., 198 N.E.2d 400. But the application of this rule of construction has not been confined to statutes having a bearing on negligence. Barboza v. Decas, 311 Mass. 10, 40 N.E.2d 10 (statute forbidding the sale of intoxicating liquor to a minor). Mezullo v. Maletz, supra (statute prohibiting conspiracy to commit a person improperly to a mental institution). ¹

Applying the principle of the cases discussed above to the case at bar, we are of opinion that the demurrer was rightly sustained at to counts 1, 2, 3, and 5. The defendant's duty not to discharge the plaintiff before he had reached the age of sixtyfive is solely the creature of statute; no such duty exists at common law. The only basis for holding the defendant liable is the statute. But that does not expressly provide a civil remedy. Nor does it appear that such a remedy...