Preferred General Agency of Alaska, Inc. v. Raffetto

• Decision Date: 06 May 1964
• Docket Number: Nos. 399,410,s. 399
• Citation: 391 P.2d 951
• Parties: PREFERRED GENERAL AGENCY OF ALASKA, INC., and Alaskan corporation, Appellant, v. Robert C. RAFFETTO, Appellee. Robert C. RAFFETTO, Appellant, v. Earl H. JONES, an individual, and Preferred General Agency of Alaska, Inc., an Alaska corporation, Appellees.
• Court: Alaska Supreme Court

Page 951

391 P.2d 951

PREFERRED GENERAL AGENCY OF ALASKA, INC., and Alaskan

corporation, Appellant, v. Robert C. RAFFETTO, Appellee.

Robert C. RAFFETTO, Appellant, v. Earl H. JONES, an individual, and Preferred General Agency

of Alaska, Inc., an Alaska corporation, Appellees.

Nos. 399, 410.

Supreme Court of Alaska.

May 6, 1964.

Wendell P. Kay and Lester W. Miller, Kay & Miller, Anchorage, for appellant in No. 399 and for Appellees in No. 410.

Clyde C. Houston and William W. Renfrew, Anchorage, for appellee in No. 399 and for appellant in No. 410.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

DIMOND, Justice.

Raffetto was employed under an oral agreement by the appellant, Preferred General Agency of Alaska, Inc., as an insurance underwriter. He was to receive a salary of $10,000 a year, plus a bonus based upon a set percentage of the net profits of appellant's business. Raffetto terminated his employment on June 15, 1960. A dispute then arose between the parties as to the terms of the agreement relating to the bonus. Appellant claimed that the bonus was to be payable only on a yearly basis, so that if Raffetto did not complete a full calendar year's work he was to get no bonus at all for that year. Raffetto's understanding of the agreement was that his bonus was earned monthly and was to be paid quarterly, and that if he terminated his employment at any time the bonus was to be paid up to the date of termination. The trial court found the terms of the agreement were such that the bonus was to be paid to Raffetto without regard to whether or not he remained in appellant's employment for an entire calendar year. On this appeal appellant's main contention is that the court's finding was contrary to the substantial weight of the evidence and was therefore erroneous.

In its brief appellant does nothing more than demonstrate that the evidence as to the terms of the agreement relating to the bonus was in sharp conflict. What appellant asks us to do in effect is to reweigh conflicting evidence and substitute our judgment for that of the trial judge. This we shall not do. ¹ The decision that the judge was called upon to make depended in large part upon oral testimony of witnesses seen and heard by him. We must give due regard to his opportunity to judge the credibility of those witnesses, and we shall not reverse his decision unless we find it clearly erroneous. ² Clear error is not demonstrated by merely showing a conflict in the evidence. Before we can say that a finding of fact is clearly erroneous we must be left with the definite and firm conviction on the entire evidence that a mistake has been committed. ³ We are not convinced that there has been any such mistake in this case. The trial judge's finding as to the terms of the bonus agreement is not clearly erroneous.

The next point made by appellant, in two separate specifications of error, is that the judge erred in striking the testimony of appellant's bookkeeper, Nadine Hardy, regarding certain conversations that had taken place in October and November of 1958; and that he committed further error in refusing to permit this witness at a later point in the trial to again testify as to such conversations. We shall not consider these matters, because there has not been compliance with our Rule 11 (a)(6) as to the specifications of error ⁴, and for the further reason that the argument in appellant's brief does not state clearly the points of fact and law being discussed as required by our Rule 11(a)(8). ⁵

In its next point on this appeal appellant makes reference to the trial court's finding that Raffetto was entitled to the reasonable value of his services for a specified period at the rate of 20% of the net profits. Appellant contends that in using the words 'reasonable value of his services', the court applied a quantum meruit measure of damages for breach of an implied contract, and that this was error because an express contract had been established by the evidence.

Appellant does not make a complete statement of what the court found. The sentence which states that Raffetto was entitled to the reasonable value of his services concludes with the words 'in accordance with the terms of the contract of employment.' It is perfectly clear from the record that the court was not relying upon the existence of an implied contract. The existence of an express contract was undisputed. The only dispute was as to its terms. When the judge referred to the reasonable value of Raffetto's services, he was obviously speaking only of what was due to Raffetto under the terms of the express employment contract as he found them.

Appellant's final point has to do with the last 15 days of Raffetto's employment between June 1 and 15, 1960. Appellant contends that the court erred in allowing Raffetto bonus compensation for that period of time, for the reason that there was no evidence that the bonus was earned or that it accrued on less than a monthly basis.

It is true that Raffetto testified that his bonus was to be earned monthly. But he also testified that the agreement was that if he terminated his employment the bonus was to be paid up to the date of termination. It was not unreasonable for the court to find from what Raffetto said that his bonus was to be earned on the basis of the time he actually worked, and not on the basis of his remaining in appellant's employment for any particular period of time. Since Raffetto worked for appellant from June 1 to June 15, 1960, the court did not err in allowing him compensation for that period.

Raffetto's cross appeal (File No. 410) involves the trial judge's award of attorney's fees. The appellee, Jones, who had been doing business individually under the name of Preferred General Agency of Alaska, hired Raffetto in 1957. In February 1960 Jones formed the corporation, Preferred General Agency of Alaska, Inc., for the purpose of carrying on his insurance business. Jones and the corporation were both made defendants when Raffetto commenced his action. Jones moved to dismiss the action as to him on the ground that Raffetto had been employed by the corporation, and not by Jones individually, during the period for which Raffetto claimed he was owed a bonus. In rendering his oral...