Ransom v. City of Boston
| Decision Date | 05 September 1907 |
| Citation | 81 N.E. 998,196 Mass. 248 |
| Parties | RANSOM v. CITY OF BOSTON (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Berry & Upton for plaintiff.
Philip Nichols, for defendant.
These are actions of contract brought to recover wages, which the plaintiff would have received, if employed continuously by the defendant, in the first action, from May 6, 1895, to Nov 4, 1903, and, in the second, from Nov. 5, 1903, to July 5 1906. The first action was before us in 192 Mass. 299, 78 N.E. 481. The plaintiff's petition for a writ of mandamus to restore him to the labor service in the employ of the defendant brought in July, 1905, was passed upon in 193 Mass. 537, 79 N.E. 823. The superior court found as facts that the plaintiff was a veteran of the Civil War within the meaning of St. 1896, p. 534, c. 517, § 1 (Rev. Laws, c. 19, § 20), and as such veteran was duly registered, certified and employed as a common laborer in the public grounds department of the defendant on May 6, 1895, and continued eligible for the employment in such service until the bringing of these actions; that there was continuous work, of the kind to which he was entitled, from his first employment to the bringing of these actions, and that other laborers, not veterans, were given employment during all the times when the plaintiff was laid off or suspended, to which the plaintiff was entitled; that the plaintiff was never given any legal hearing, nor properly discharged, and has never waived his rights to employment as a veteran, except for a period not now in controversy; and that he is an employé of the defendant in the public grounds department at a fixed salary; that the plaintiff was illegally discharged in April, 1903, and must then have understood that he was not wanted, and had no reason thereafter to suppose that he might be soon employed and made no effort to get other employment; that prior to April, 1903, although suspended from time to time he had reason to believe that he might soon be employed. Upon these facts the court ruled that plaintiff was entitled to recover only nominal damages after April, 1903, and found for the plaintiff in the first suit for the sum of $647.50. The defendant brings the first case before us on its exceptions, and the plaintiff the second.
1. The first exception argued by the defendant is to the refusal of the court to rule that the plaintiff was not entitled to recover damages for the periods in the winters of 1898 to 1901 that he did not work. The primary argument in support of this exception is based upon the proposition that the head of the defendant's public grounds department may properly retain for continuous service throughout the year those persons classified by the civil service commission as sodders and gardeners, even though there may be no work of the kind which they perform during the summer, by giving them work temporarily during the winter, of the kind which the plaintiff was competent to do. See Clark v. Boston, 179 Mass. 409, 60 N.E. 793. But this argument is disposed of by the finding of the court that other laborers, not veterans (and it does not appear that such other laborers were classified as gardeners or sodders), were given employment during all the time for which the plaintiff claims pay, of a kind to which the plaintiff was entitled. There was evidence to support this finding from the testimony of the plaintiff. Although some evidence to the contrary was introduced by the defendant, we cannot pass upon its weight, nor revise the finding, unless it was unwarranted by the evidence, which is not the case here. The same answer is to be made to the second argument in support of this exception, to the effect that the plaintiff acquiesced in the refusal of the defendant to give him employment. The superior court refused to find such acquiescence, and the evidence of the plaintiff that he remonstrated against his suspension, and that during two winters of his service he was given continuous employment during the winter, as weather permitted, and the further fact that there was no regularity in the time of his suspension or re-employment, the former varying from November 27th to January 30th, and the latter from March 7th to April 3d, justified the refusal of the court to grant this ruling and its additional finding that prior to April, 1903, the plaintiff had reason to believe that he might soon be re-employed. Moreover, the holding that a writ of mandamus might be granted to the plaintiff (193 Mass. 537, 79 N.E. 823) is, of itself, an adjudication that, under the circumstances disclosed in this case, there has been no acquiescence by the plaintiff in the illegal action of the defendant and that he has seasonably availed himself of his rights in the premises. Streeter v. Worcester, 177 Mass. 29, 58 N.E. 277; Hill v. Fitzgerald, 193 Mass. 569, 79 N.E. 825.
2. The defendant next argues that, inasmuch as the plaintiff never applied for a hearing, he is not entitled to recover. This contention is unsound. It has been decided that the plaintiff was entitled to the protection afforded by Rev. Laws, c. 19 § 23. This section provides, so far as material to the plaintiff's claim, that ...
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