Kilfoyle v. Malatesta
| Decision Date | 31 December 1958 |
| Parties | Arthur KILFOYLE d/b/a A. C. K. Co. v. Emanuele J. MALATESTA. |
| Court | New Hampshire Supreme Court |
Robert Shaw and Robert B. Donovan, Exeter (Robert Shaw, Exeter, orally), for plaintiff.
Burns, Calderwood, Bryant & Hinchey, Dover (Donald R. Bryant, Dover, orally), for defendant.
The evidence disclosed that the plaintiff, who was a resident of Cambridge, Massachusetts, and the defendant's son-in-law, undertook to construct the foundation, and to lay the cinderblock walls and partitions, of a motel which the defendant proposed to erect in Northwood. The plaintiff testified that after making suggestions concerning changes in the plans for the structure, he commenced work at Northwood on April 19, 1954, continuing until October 31, 1954. According to his testimony he worked on a total of 126 days during this period, his work after August 15, 1954, being on weekends only. No record of hours was kept but the plaintiff testified that 'some days it was eight [hours] and other days it was ten and other days it was twelve.' He estimated his 'average' daily hours at eight, and testified with regard to his work on weekends that eight hours a day was a 'minimum.' There was other evidence that he customarily worked from eight in the morning until dark with little time out for lunches.
The plaintiff was a bricklayer by trade. Prior to commencing work for the defendant, he had been employed as a shop superintendent by a Boston contracting firm at a wage of $3.25 an hour for a five-day week, with overtime pay of $54 a day. He testified that the defendant promised to pay him 'a week's pay,' but that he had received only $360 on account of the work done.
The defendant did not dispute that the plaintiff had laid the cement-block foundation, the cinder-block walls and partitions, and six concrete floors. However, the defendant took sharp issue with his claim that he had supervised and assisted with the carpentry, denied that he commenced work before April 27, and testified that he had been paid in full by payments totalling $800.
The plaintiff's claim as outlined on the blackboard in the course of his direct examination was for a balance of $2,916, after crediting $360 paid. This figure was reached by determining that the total days worked was 126, and computing the amount due on the basis of an eight-hour day at an hourly rate of $3.25. The effect of the remittitur was to reduce the verdict to the amount thus claimed by the plaintiff in his testimony.
The defendant's motion to set the verdict aside alleged as grounds therefor that the verdict was against the weight of the evidence, and that 'the jury fell into a plain mistake in that the verdict is far in excess of the damages asked for by the plaintiff during the trial.' In support of its exception the defendant argues that the verdict must have been computed at a rate of $3.25 an hour for an average day of 'slightly over ten hours'; that there was no evidence that plaintiff's work-day averaged ten hours; and that the verdict was manifestly so excessive as to show partiality, prejudice, or mistake on the part of the jury, and unfairness in the trial. With respect to the weight of the evidence the defendant argues that compensation at an hourly rate exceeding $2.75 was unwarranted.
The direct conflicts in the testimony of the parties could be resolved only by the findings of the triers of the facts. Upon the question of an hourly rate at which the plaintiff was entitled to be paid the only evidence, apart from the plaintiff's testimony that he received pay of $3.25 an hour elsewhere, was testimony by a Northwood plumber and steamfitter that that the 'going price' for the hiring of 'capable men in Northwood in this vicinity' was $2.75 an hour. Since the nature of the work which commanded this pay for 'capable' men did not appear, the jury was not required to adopt the defendant's evidence as a conclusive measure of the fair value of the plaintiff's labor. If the verdict was in fact based upon an hourly rate...
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