Weiner v. Pictorial Paper Package Corp.

Decision Date03 May 1939
Citation303 Mass. 123,20 N.E.2d 458
PartiesBARNARD H. WEINER v. PICTORIAL PAPER PACKAGE CORPORATION.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

May 3, 16, 20 1938.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, DOLAN, COX, & RONAN, JJ.

Practice, Civil Appellate Division: appeal, decision. Law of the Trial. Conflict of Laws. Contract, Of employment, Construction. Words, "Permanent employment."

An appeal from a decision by an Appellate Division ordering a new trial was unauthorized by law and of no effect.

An appeal from a final decision by an Appellate Division, ordering dismissed a report of a second trial of the action had in accordance with its previous decision ordering a new trial, brought to this court for review both the first and second decisions.

A decision by an Appellate Division ordering a new trial of an action was not the law of the case binding on this court upon an appeal from a final decision of the Appellate Division dismissing a report made after the new trial. Where a plaintiff purported to appeal from a decision by an Appellate

Division ordering a new trial and later, as shown by the docket entries, claimed an appeal from a final decision by the Appellate Division ordering dismissed a report made after such new trial ordered in writing the preparation of the record for transmission to this court of the "first and second appeals," and, upon being given by the clerk a separate estimate of expense of the record "for first appeal" and a larger estimate "for both appeals," deposited the smaller amount "to perfect appeal," procured a printed record relating only to the first trial and the earlier decision of the Appellate Division and entered it in this court, what was entered must be deemed to be the appeal from the later, final decision of the

Appellate Division and to present to this court for determination the propriety of the earlier decision. FIELD, C.J., DONAHUE and COX, JJ. dissenting.

If there was no prejudicial error in the rulings of a district court judge, a decision by the Appellate Division ordering a new trial was error vitiating the second trial, and the party prevailing at the first trial, on appeal from a final decision of the Appellate Division dismissing a report after the second trial, was entitled to reversal of both decisions and to judgment on the finding at the first trial.

A contract of employment, made in the State of New York without reference to the law of any other particular State, was interpreted according to the law of New York, where "permanent employment" meant an employment to continue indefinitely and until one or the other of the parties wished for some good reason to sever the relation.

A finding that a contract of permanent employment was made under the law of the State of New York was warranted by testimony of the plaintiff that he there interviewed an authorized officer of the defendant, a corporation, at his request on the subject of employment, that the officer asked him to take charge of sales in a certain district, that the plaintiff said that the "arrangement must be permanent, not temporary," and that the officer replied, "you can have the line as long as you want it. At the end of six months come back and write your own contract", and by testimony by the officer that he would keep a "faithful and efficient employee in permanent employ . . . and that the employee could depend upon the custom of the whole trade not to be fired."

CONTRACT. Writ in the Municipal Court of the City of Boston dated February 4, 1935.

The first trial was before Devlin, J. The case was argued at the May, 1938, sitting of this court before Lummus, Qua, Dolan & Cox, JJ., and afterwards was submitted on briefs to all the justices.

J. E. Hannigan, (J.

J. Tutun with him,) for the plaintiff.

J. J. Mulcahy, for the defendant.

LUMMUS, J. This is an action of contract upon an alleged agreement to employ the plaintiff. A judge in a district court found generally for the plaintiff, without resting his finding expressly on any one count, and assessed damages in the sum of $15,250. It is evident, however, that the damages were assessed upon the second count, for breach of a contract to give the plaintiff permanent employment, and not upon the first count for breach of a contract to employ the plaintiff for six months. On a report to the Appellate Division, claimed by the defendant, a new trial was ordered on February 2, 1937. Two days later the plaintiff claimed an appeal to this court.

A second trial was had. It resulted in a finding for the plaintiff on the first count only, with damages of $1,125. A report was taken by the plaintiff to the Appellate Division based on alleged errors at the second trial prejudicial to the plaintiff, but was dismissed by that tribunal on February 3, 1938. That dismissal constituted the final decision of the Appellate Division. A second appeal to this court was duly taken within five days thereafter, as the docket entries show. Since the final decision was the last action of the Appellate Division, the only action within five days before the appeal, and the only appealable action of that division, as will appear, we infer that that appeal was from that final decision. But the plaintiff caused to be printed and presented to us a record showing only the proceedings at the first trial and the action of the Appellate Division upon the first report.

The contention of the plaintiff is, that there was no error at the first trial; that he is entitled to judgment upon the finding made at that trial; that the Appellate Division erred in ordering a new trial; and that all subsequent proceedings arise out of and are vitiated by that error.

The relevant statutes are these. In a district court "Any party . . . aggrieved by any ruling on a matter of law by a single justice, may, as of right, have the ruling reported for determination by the appellate division when the cause is otherwise ripe for judgment, or sooner by consent of the justice hearing the same. . . . If the appellate division shall decide that there has been prejudicial error in the ruling complained of, it may reverse, vacate or modify the same or order a new trial in whole or part; otherwise it shall dismiss the report . . . ." G.L. (Ter. Ed.) c. 231, Section 108. "An appeal to the supreme judicial court shall lie from the final decision of the appellate division of any district court. . . . Claims of appeal shall be filed in the office of the clerk of the district court within five days after notice of the decision of the appellate division. The appeal shall not remove the cause, but only the question or questions to be determined. . . ." Section 109.

1. The action of the Appellate Division in ordering a new trial was not a "final decision" from which an appeal could have been claimed and entered at once in this court. So much is settled beyond dispute. Real Property Co. Inc. v. Pitt, 230 Mass. 526 . Hall Publishing Co. v. MacLaughlin, 230 Mass. 534 . Matson v. Sbrega, 250 Mass. 138 . Demers v. Scaramella, 252 Mass. 430 . Endicott Johnson Corp. v. Hurwitz, 284 Mass. 378 . Cunniff v. Cleaves, 288 Mass. 325. Hammond v. Boston Terminal Co. 295 Mass. 566 . Gill v. Stretton, 298 Mass. 342 . Robinson v. Wm. Brown & Sons Co. 301 Mass. 316 .

Beyond that point we find conflicting statements in the reported cases. There are intimations that an appeal may be taken from the interlocutory decision of an appellate division ordering a new trial, although such an appeal cannot be entered in this court until the new trial has been had, a final decision of the Appellate Division obtained, and an appeal from that final decision taken. Beacon Tool & Machinery Co. v. National Products Manuf. Co. 252 Mass. 88 , 91. Stafford v. Commonwealth Co. 263 Mass. 240 . Apparently upon the same theory that an interlocutory decision by an appellate division is appealable, in Daniels v. Cohen, 249 Mass. 362 , 363, 364, 365, where there was no appeal from a former decision of an appellate division remanding the case, after a finding for the plaintiff, for a new trial on the question of damages only, it was said that the ruling of the Appellate Division "became the law of the case," and that "questions arising at the first hearing before the Appellate Division are not before us" on appeal from the final decision of the Appellate Division.

On the other hand, it has been said, in what we think is strict conformity to the statute, that it is a "final decision" from which "alone appeal lies to this court." Real Property Co. Inc. v. Pitt, 230 Mass. 526 , 529. Hall Publishing Co. v. MacLaughlin, 230 Mass. 534 , 536. Patterson v. Ciborowski, 277 Mass. 260 , 264. Endicott Johnson Corp. v. Hurwitz, 284 Mass. 378 , 380. Cunniff v. Cleaves, 288 Mass. 325 . B. M. C. Durfee Trust Co. v. Turner, 299 Mass. 276, 279. Robinson v. Wm. Brown & Sons Co. 301 Mass. 316 . Any intimations in reported cases to the contrary, countenancing a right of appeal from a decision other than a "final decision," cannot be approved. In the present case the appeal claimed from the decision of the Appellate Division ordering a new trial was unauthorized by law and of no effect.

It was also unnecessary. An appeal from the final decision of the Appellate Division, made after the new trial, would bring here for review both the first and the second decisions of the Appellate Division, no matter what were the questions of law raised by the second report to the Appellate Division. It is provided that "the appeal shall not remove the cause but only the question or questions to be determined" (G.L. [Ter. Ed.] c. 231, Section 109), and held that the effect of the appeal is only to bring before this court "rulings of law made by the trial judge and...

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