210 Mass. 487 | Mass. | 1912
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.
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
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 be
The order denying the motion
Exceptions overruled.
As to the statement required upon an order granting a new trial, see St. 1911, o. 501,