Unlawful Interference. Assignment, Of wages. Damages, In tort. Evidence, Remoteness. Practice, Civil, Conduct of trial, New trial, Exceptions.
One, who serves on the employer of a workman a notice of a supposed assignment of wages by the workman, which in fact was made by a different person of the same name, and on being informed by the workman of the mistake unjustifiably refuses to withdraw the notice and thereby causes the workman's discharge, is liable to the workman in an action of tort for the damages resulting from this unlawful interference with his employment.
In an action for wrongfully causing the discharge of the plaintiff from his employment as a laster in a shoe factory by serving on the plaintiff's employer a notice of an assignment of wages to the defendant supposed by the defendant to have been made by the plaintiff, which in fact was made by a different person of the same name, and refusing unjustifiably to withdraw the notice after information from the plaintiff of the mistake, where it appears that the plaintiff had been employed in the factory for five or six years and was employed by the piece, that he could be discharged by his employer at any time and could leave the employment at any time, and that he was paid weekly, the plaintiff, upon the question of damages, may show that by reason of the notice of the supposed assignment his wages for three successive weeks were withheld from him by his employer and were paid to him only at a later time, that the notice caused the loss of his regular employment, and that, after his discharge, although using due diligence, he had been for a long time unable to obtain regular work and was compelled to subsist on the precarious earnings which he was able to procure from other sources of employment.
In an action for wrongfully causing the discharge of the plaintiff from his employment as a laster in a shoe factory, where it appeared that the plaintiff's loss of employment was due to the tortious acts of the defendant, that the plaintiff before his discharge was employed regularly at the factory by the piece, that his employment was terminable at the will of his employer or himself, and that he was entitled to recover the fair value of his contract of service, which he had lost by reason of the acts of the defendant, the presiding judge rightly permitted the plaintiff to testify that after his discharge, although using due diligence, he had been unable to obtain regular work, and to show the precarious earnings which he was able to procure from other sources of employment. The period covered by the plaintiff's examination in regard to such other employment after his discharge was about twenty-three months. Held, that the period, which the judge in his discretion permitted to be covered by the examination in regard to the plaintiff's employment, did not appear to have been so unreasonably extended that his decision upon it should be revised.
In an action for wrongfully causing the discharge of the plaintiff from his employment as a laster in a shoe factory by serving on the plaintiff's employer a notice of an assignment of wages to the defendant supposed by the defendant to have been made by the plaintiff, which in fact was made by a different person of the same name, and refusing unjustifiably to withdraw the notice after information from the plaintiff of the mistake, it was said, that, besides other damages which the plaintiff was entitled to recover, the defendant's persistent and wilful interference also subjected the plaintiff to the injustice and discouragement of having his earnings withheld and to the perplexity of decision as to what course he must take not only to vindicate his rights but to prevent the impending loss of his employment, and that for this mental distress and anxiety reasonable compensation could be recovered.
The denial of a motion for a new trial asked for on the grounds that the verdict was against the evidence and that the verdict was against the law, which were based on questions open at the trial, is not subject to exception.
The denial of a motion for a new trial asked for on the ground that the verdict was against the weight of evidence is within the discretion of the trial judge and is not subject to exception.
The denial of a motion for a new trial asked for on the ground that the damages returned by the jury were excessive is within the discretion of the trial judge and is not the subject of exception.
Where a trial judge in denying a motion for a new trial, asked for on grounds that are wholly within his discretion, makes an order that he "in the exercise of his discretion overrules the motion," the fact that he files with the order a memorandum giving the reasons for his action has no effect upon the order, of which the memorandum is no part, being merely for the information of counsel.
BRALEY, J.
The jury might have been convinced, if no evidence except that of the defendant had been introduced, that there had been an innocent mistake of identity when the defendant, who held as security an assignment of the wages of his debtor, whose name corresponded exactly with the name of the plaintiff, notified the plaintiff's employer, that thereafter no wages were to be paid to the assignor until the amount remaining due had been satisfied. R.L.c. 189, §§ 27, 32-34. St. 1906, c. 390. But concededly the plaintiff was not the defendant's debtor, and, if the jury believed the plaintiff's testimony as their verdict fully indicates, the defendant, upon being informed of this mistake, instead of rectifying the error insisted upon his right to retain the money, and refused to withdraw the notice. If the defendant had attempted to collect the debt by garnishment under R.L.c. 189, this refusal would have been abundant proof of an abuse of legal process. White v. Apsley Rubber Co. 194 Mass. 97. Paine v. Kelley, 197 Mass. 22. The result accomplished by the notice being indistinguishable, the defendant, who acted at his peril, is answerable in damages which are measured by the natural and probable consequences resulting from the attempt to enforce a groundless claim. Burt v. Advertiser Newspaper Co. 154 Mass. 238, 245. Markham v. Russell, 12 Allen, 573.
It is certain that the plaintiff was deprived of his wages as they accrued weekly, and he also could show, and, on his evidence of the statements of the foreman at the time of dismissal, and which for this purpose were relevant, the jury could find, that loss of his regular employment also followed. Zinn v. Rice, 161 Mass. 571, 574. Costello v. Crowell, 133 Mass. 352. The plaintiff's further evidence, that after his discharge, although using due diligence, he had been unable to obtain regular work and was left without his accustomed means of subsistence, as well as the statement of his precarious earnings from other sources of employment, were admissible.
If the contract had been for a stated term at a fixed compensation, the measure of damages upon a breach by his employer ordinarily would have been the difference between what he would have received and what in fact he had earned, or by proper exertion might have earned, in the same or some other occupation during the unexpired time. Cutter v. Gillette, 163 Mass. 95. Busell Trimmer Co. v. Coburn, 188 Mass. 254. The plaintiff's employment was terminable at the will of either party, but this condition does not relieve the defendant, whose wrongful act and not the will of the employer caused him to lose a position, in which the jury could find that so long as his work proved satisfactory his employment would have continued, subject, of course, to any uncertainties of the business and of his ability to labor. The defendant, having procured the plaintiff's discharge and forced him to enter a field of competition where opportunities for obtaining work under similar conditions of good will with a reasonable prospect of continuity of service, or indeed remunerative work of any kind appear to have been exceedingly limited, and if employment was obtained its continuance was transitory, was liable in damages for the fair value of the plaintiff's contract of service and any loss of time attributable to these tortious acts. Hill v. Winsor, 118 Mass. 251, 259. Smethurst v. Barton Square Independent Congregational Church, 148 Mass. 261, 265. Pye v. Faxon, 156 Mass. 471, 475. Stynes v. Boston Elevated Railway, 206 Mass. 75. Richards v. Johnston, 46 Mich. 297.
The instructions were sufficiently favorable to the defendant, and the period of examination permitted by the presiding judge in his discretion does not appear to have been so unreasonably extended that his decision should be revised. Reynolds v. Ocean Ins. Co. 22 Pick. 191. Spoor v. Spooner, 12 Met. 281, 285. Lane v. Moore, 151 Mass. 87, 91.
The defendant's persistent and wilful interference also subjected the plaintiff to the injustice and discouragement of having his earnings withheld, and to the perplexity of decision as to what course he must take not only to vindicate his rights, but to prevent the impending loss of his situation, and for this mental distress and anxiety reasonable compensation could be recovered. Fillebrown v. Hoar, 124 Mass. 580. Chesley v. Tompson, 137 Mass. 136. Lombard v. Lennox, 155 Mass. 70. Moran v. Dunphy, 177 Mass. 485. But the accidental omission to instruct the jury, that, where there is evidence of a wilful wrong compensatory damages may be enhanced for injured feelings without being specifically set forth in the declaration, was not called to the attention of the judge. Meagher v. Driscoll, 99 Mass. 281, 285. Wheeler-Stenzel Co. v. American Window Glass Co. 202 Mass. 471.
The defendant, however, even if no error appears in the admission of evidence and the denial of his requests, relies upon the refusal to grant his motion for a new trial as ground for reversal. If we assume from the general statement at the close of the exceptions that the question was saved, the defendant, while conceding that the order overruling the motion cannot of itself be reviewed, asks to have it set aside as matter of law because the reasons assigned were erroneous. The first and third grounds of the motion raised questions which, having been open at the trial, are not the subject of exception when presented in a motion for a new trial. Garrity v. Higgins, 177 Mass. 414. The second ground, that the verdict was against the weight of evidence, having been addressed solely to the discretion of the trial court, only the reasons for not allowing the motion on the fourth ground of excessive damages remain. Capron v. Anness, 136 Mass. 271. It was wholly discretionary whether a new trial should be granted on this ground, and no rulings of law were intended, or were made.
The order denying the motion stated the final action of the judge of which the subsequent reasons for the decision formed no part, but were merely for the information of counsel. Welsh v. Milton Water Co. 200 Mass. 409, 411.
As to the statement required upon an order granting a new trial, see St. 1911, c. 501.
Exceptions overruled.