Pstragowski v. Metropolitan Life Ins. Co.

• Decision Date: 14 April 1977
• Docket Number: 76-1509,Nos. 76-1344,s. 76-1344
• Citation: 553 F.2d 1
• Parties: Stephen S. PSTRAGOWSKI, Plaintiff, Appellee, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant, Appellant, Orise B. PSTRAGOWSKI, Plaintiff, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

553 F.2d 1

Stephen S. PSTRAGOWSKI, Plaintiff, Appellee, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant, Appellant, Orise B. PSTRAGOWSKI, Plaintiff, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant, Appellee.

Nos. 76-1344, 76-1509.

United States Court of Appeals First Circuit.

Argued Jan. 3, 1977.

Decided April 14, 1977.

Russell F. Hilliard, Concord, N. H., with whom Maynard, Dunn & Phillips, Concord, N. H., was on brief, for Stephen S. Pstragowski and Orise B. Pstragowski.

Michael M. Ransmeier, Concord, N. H., with whom Sulloway Hollis Godfrey & Soden, Concord, N. H., was on brief for Metropolitan Life Ins. Co.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

These are two appeals, both arising from suits challenging the termination of Stephen Pstragowski's employment as a local sales manager for the Metropolitan Life Insurance Company (Metropolitan). The first is an appeal by Metropolitan from a judgment of $116,391.10, which was entered for Stephen Pstragowski, following a jury verdict, on his claim that his discharge was motivated by malice on the part of the company and thus constituted a breach of contract under New Hampshire law. The second is an appeal by Stephen's wife, Orise, from an order dismissing a suit she brought on a third party beneficiary theory.

In Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), the New Hampshire Supreme Court held that an employee who is discharged by reason of the bad faith, malice, or retaliatory motives of his employer has a right of action for breach of contract, notwithstanding the fact that he was an employee at will. The substantive issues raised in these appeals pertain in large part to the scope of the Monge rule.

Metropolitan's Appeal

Metropolitan's sole contention on appeal is that the district court erred in submitting the case to the jury. Insofar as it argues that the evidence showed that Metropolitan did not seek to terminate Pstragowski at all and that there were reasonable grounds to discharge him, we must hold that there was sufficient evidence supporting the jury's findings that the discharge was motivated by malice on the part of Pstragowski's immediate supervisor, Ham, and that Saunders, the next higher in command, acted with malice or with full knowledge of Ham's bad faith.

Metropolitan's second argument is more substantial. It maintains that the official who effectively made the decision to terminate Pstragowski was the territorial vice president, Cannatella, and that the record does not contain substantial evidence supporting the view that he harbored any malice toward Pstragowski or that he acted with knowledge of Ham or Saunders' malice. Metropolitan's position is that an employee may not recover under Monge unless he establishes that the individual with the effective decision making power can be charged with the bad faith of his underlings. This issue was not addressed in Monge, for there the jury had before it evidence from which it could reasonably conclude that the decision maker, the personnel manager, connived with the malicious designs of the foreman.

The question Metropolitan attempts to present strikes us as an important and difficult one. On the one hand we think it rigorous doctrine to impose liability on a company for terminations of employment at will sparked by foremen's grudges, without proof of any involvement by the responsible management. On the other hand, we can appreciate that the New Hampshire rule might be substantially eviscerated if the home office were required to be implicated.

We do not reach this issue nor that of whether Cannatella's frequent telephone conversations with Saunders and his authorization of Pstragowski's termination before hearing the results of a supplemental investigation he had ordered would support a finding of connivance on his part. Appellant has simply not preserved the issue for appellate review.

In the district court it moved, both at the close of plaintiff's case and at the close of all evidence, for a directed verdict on the ground that "no reasonable man could find any malice, wanton, necessary (sic) or retaliation on the basis of the evidence presented." The court, referring to Monge, denied the motion. Apparently satisfied at the sufficiency of the evidence relating to Ham, but being "bothered" by the evidence as to Saunders, it pressed plaintiff's counsel for his theory. No mention of Cannatella was made by court or counsel. The court subsequently instructed the jury as follows:

"Now, I think you know that a corporation acts through its agents, servants and employees. And the agents, servants and employees that we are talking about in this case are, as far as actual proof of liability is concerned, are Mr. Ham and Mr. Saunders. And, of course, Mr. Cannatella also comes into the picture, but it is Mr. Ham and Mr. Saunders whose conduct you have to judge in this case.

Now, to sum up, in order for the plaintiff to recover, he must prove that either Mr. Ham or Mr. Saunders, or both working together, caused him to be fired . . . and that either or both did so out of malice, bad faith or in retaliation for making the charges against Ham."

There were no exceptions taken by defendant. Indeed, the charge was consistent with the defendant's request, which was general in nature. ¹

It is, of course, established that the sufficiency of the evidence is not reviewable on appeal unless a motion for a directed verdict was made in the trial court. See LaForest v. Autoridad de las Fuentes Fluviales,536 F.2d 443 (1st Cir. 1975); 9 Wright & Miller, Federal Practice and Procedure § 2536. A corollary to this rule is that a party who moved for a directed verdict may obtain appellate review only on the specific ground stated in the motion. See House of Koscot Dev. Corp. v. American Line Cosmetics, Inc., 468 F.2d 64 (5th Cir. 1972); Randolph v. Employers Mut. Liab. Ins. Co., 260 F.2d 461 (8th Cir. 1958); Friedman v. Decatur Corp., 77 U.S.App.D.C. 326, 135 F.2d 812 (1943). While a party need not state a contention with technical precision in order to save his rights, he must state it with "sufficient certainty to apprise the (district) court of the movant's position." 9 Wright & Miller, Federal Practice and Procedure, § 2533, p. 580. Here, the motion for a directed verdict gave the court no indication that the defendant might take the position that plaintiff could recover only if Cannatella could be charged with malice and that there was insufficient evidence of such malice to support a jury verdict. Indeed, the negative pregnant of the motion for a directed verdict seemingly was that malice need not be shown on the part of Cannatella. Accordingly, appellant is precluded from seeking a reversal on the ground there was insufficient evidence of Cannatella's malice. Cf. United States v Lachmann, 469 F.2d 1043, 1044-45 (1st Cir. 1972). ²

Orise Pstragowski's Appeal

Stephen Pstragowski instituted his successful action on September 3, 1974. In the course of the preparations for that trial, his counsel learned that a major element of the damages incurred were lost benefits for Stephen's wife, Orise. Apparently believing that this action was required to recover such lost benefits, Stephen moved, on May 13, 1976, to amend his complaint to add his wife as a party-plaintiff. The district court denied his motion, and no appeal was taken. On August 23, 1976,...