*1 D. Edward Talberth vs. Publishing Company
Guy Gannett Opinion, Kennebec. November d,or Plaintiff. Dub for d & Dub Goodspeed, Defendant. Goodspeed & Sitting: Fellows, J., Williamson, Tirrell, Merrill, C. dissenting, J., dissenting R.A. Thaxter, J., Murray, JJ. MURRAY,A. R. J. concurrence of as- report. an action This was On C. J. Merrill, the defend- brought by recover from sumpsit *2 $3,135.00. pay of in the amount severance ant so-called a member and the defendant of plaintiff was an Guild, which Newspaper Local of Portland the agreement This operating or contract. had an defendant the bargaining agent, by Guild, the into contract was entered employees defendant and certain of itself in behalf engaged publication of certain of the de- in the who were among plaintiff em- was the newspapers. The fendant’s behalf said contract was ployees in whose of the defendant to the benefit of the terms entitled into entered provisions thereof. stipulated if is entitled to that has been
It recovery $3,135.00. recover, his shall Nor amount of controversy plaintiff’s any fact relative to the that is there May 27, 1952, employment terminated on twenty years’ completed than had more service at he newspaper guild and was a member said at the that time employment was terminated. time his guild Among provisions of the were the fol- lowing pertinent are case:— facts VII
“ARTICLE (Severance Pay) Upon dismissal, employe, upon request, an 1. Publisher, notice written from the shall receive or his stating agent, the cause for his dismissal. gross neglect Upon dismissal, other than for 2. gross duty, pro- or misconduct while on management, employe an voked shall receive a payment equal salary severance to his cash for one highest week, during at the rate received his em- major ployment, for each six months or fraction employed by he has been the Pub- thereof thirty (30) In no event shall this exceed lisher. weeks. employee, an the event of the death of designated by beneficiary, Publisher shall employe writing executor in advance or his administrator, equal or amount of amount to the employe would have to which the been dismissal. entitled Upon completion 4. cause of illness employee may or be- of 20 service age having 65, an reached the and, terminate his application Publisher,
written to the shall receive length lump cash based on of service as com- sum Payments puted under of this article. any under this be in lieu for elsewhere.” other ter- section shall provided minal benefits seeks recover severance under the provisions foregoing contract. The issues in this case *3 are, plaintiff (1) whether or not the was dismissed “gross manage- duty, provoked by misconduct while on not ment,” so, if and whether not he would be entitled to or provisions 2 severance under the of Article Section of supra; (2) plain- VII of the contract whether or not the employment” tiff himself his within the mean- “terminated ing of Section 4 of Article VII under such circum- said stances he be entitled to com- would “as puted 2” under Section of Article VII. agreement
By parties reported of the the case to this was court for final determination the admissible evidence. political plaintiff The the writer for the Gannett staff newspapers, published by so-called, company. the defendant prior of Just to the severance his relations with the defend- actively company ant he became involved in serious and disgraceful political A scandal. recital of the details of this part played by plaintiff scandal and the the of therein would purpose length if serve no useful set forth at in this perpetuated reports. say, they in and our Suffice it to were they and character if of such a nature and when became
289 known, political plaintiff’s as a writer was the usefulness end, sure to and retention the defendant come to political itself and would reflect discredit writer publications. its
On the the certain disclosure of the facts eve of rela- plaintiff’s participation tion and therein to the scandal legislative investigating committee, plaintiff, by before a person, his counsel and in made known to defendant the existence facts imme- that the same were to be of and diately public. made plaintiff’s participation
The involvement active gross part this scandal constituted misconduct on his while provoked by company the defendant or the management ground thereof afforded sufficient for his meaning immediate dismissal within of of Ar- Section supra. ticle VII claims that it on ac- dismissed gross meaning of
count misconduct within the supra, contract, Article VII of and that the provisions because is not thereof entitled to severance pay. hand, plaintiff, on the other claims that he terminated completion twenty after the ser- meaning
vice VII, within of Section Article said supra, and is entitled to severance thereunder the sum $3,135.00. *4 undisputed upon The facts are and it is the inferences undisputed from facts that are to decide we whether or not plaintiff the dismissed under Section 2 or terminated meaning within the of Section 4. The difference arises because after the facts became defendant, known to after the the defendant’s Vice plaintiff President had notified already the that he was 290 resignation
through, plaintiff write a the was allowed to newspapers. published in the defendant’s which was Upon undisputed de- the evidence we conclude that the “gross plaintiff misconduct while fendant dismissed the management.” by na- provoked not essential plaintiff’s employment was the ture of termination the of by de- changed plaintiff and the fact the wrote not the plaintiff, received, a state- it had dismissed the fendant after resignation in used by in of a which it ment him the form respecting publication its of connection with the facts plaintiff’s employment. termination of the Berry Co., Lord, & Mass. Ins. 133 As we in Walker v. said 336 Me. at
“A of the evidence discussion the details might are in- which these based be of conclusions litigation parties but be terest to the would to value to of the decisions of no students Court, unnecessary to encumber we deem it to reports Suffice it our with such discussion. fully say sustains its submitted evidence contentions,”. Clark, Me. also Robinson v. See given testimony respect to the dismissal was plaintiff only presence also in that of repre- present had been when the counsel. Both them informed the his dis- sentative of the defendant respecting They missal. both heard the conversations entire were to this official and other the same which testified present representatives of defendant who were when the testimony place. Their stands undis- conversations took puted the record. Neither the and undenied stand, witnesses, deny, as nor his took the witness to counsel attempt modify any explain, particular. same interpreted must Article VII whole. our thereof, refers hold that Section to Section We *5 therewith, and that interpreted in connection be must subject to the same is right under Section in Section as that contained limitation employee dis- that if is the intent of the It provoked duty, “gross not on misconduct while for missed pay to management,” the severance not receive he shall either entitled under otherwise be which he would contract. 4 of Article VII or Section enforcible, although right pay, to severance contingent right unless the absolute which does not become making provision are com- therefor terms of the contract payable the termination plied until with. It is never due only employment, if the contract and then contract of payable ac- it is under such conditions be terminated cording to the terms thereof. management mercy with re- at
Nor is right pay. right spect His to such to severance alone. The depends conduct and own dismissal is not mere to severance lost for only gross misconduct cause, but when the dismissal is “for provoked by management.” duty, not while “gross guilty while on was misconduct management,” provoked by dismissed judgment. entitled to accord- therefor. The defendant stipulation entry will be ance with the entry
Remanded for Judgment defendant. *6 292 opinion.
Dissenting Dissenting. agree A. R. J. ma- We with the Murray, jority opinion plaintiff the facts show that discharged gross for misconduct as described in Section agree part opinion: of the contract. We also with this any controversy plain- “Nor there relative to the fact that employment by May 27, tiff’s the defendant terminated on 1952, completed twenty years’ that he had than more ser- Newspaper vice time at that and was a said member of Guild at that time.”
While the states that we are to decide whether or 2, not the was dismissed under Section or termi- employment meaning nated his 4, within we Section employment contend by plain- that the was terminated not defendant, tiff but which dismissal the defendant impossible it made for the to terminate the em- ployment by resigning. agree
We also opinion, with the statement in the “the pay, although enforceable, to severance a con- is but tingent right which does not become absolute unless the making provision terms of the contract therefor are com- plied agree with.” statement, We do not with its further “It payable is never due and until the termination of the con- agree tract of ***.” 2, We to this as to Section say not as to Section 4. up- We it is due under Section 2 dismissal, on but it is completion due under Section on twenty years’ service, payable resignation. it is on The ma- jority opinion states that Article VII of the contract must interpreted this, course, differ, as whole. With we say but do that the interpreted, contract as a whole should be including 4, get 2 and Section Section the intention of the parties thereto. 2 and Section Article VII follow: gross neglect Upon dismissal, other than for
“2. gross duty, or misconduct while management, employe provoked by ceive salary ceived shall re- payment equal cash severance to his highest week, rate re- one at the during employment, for each six major months fraction that he has thereof employed by publisher. event been no thirty (30) shall this exceed weeks. Upon completion of 20 service or be- having age cause of 65, and reached the illness or *7 may employe employment terminate application publisher, written the to length lump shall receive a cash based sum computed 2 of service as under of the Payments article. under this section shall be provided any in lieu of terminal other benefits for elsewhere.” construction, according majority opinion, to the is 2 that Section is in from of effect the time the commence- resig- ment of the until there dismissal is a nation, dissenting opinions the construction of the is Sec- 2 completion twenty tion is in effect until has there been a of completion twenty years’ service. At the of service right resign expired, right Section 2 and the has to and the pay strengthened to severance are vests. We in our belief expired 2 by “Pay- that Section the statement Section 4: ments any under this shall section be in of lieu other termi- provided nal benefits for elsewhere.” The contract discloses that it was made the defendant Newspaper Portland the Guild for itself and on behalf employes publisher. of all the As between this defendant, and this the defendant the drew contract. parties What was the intention of the contract? “The maxim construction, first and that which rests
294 rules, this, that, per- namely,
all
as
will
so far
law
contracting parties
mit,
apparent
intent of the
shall be
regarded. Operation
from
and intent are to
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be
meaning
purpose
parties;
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and understand-
ing
language they use, applied
subject
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England
Co.,
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al.
Fuel Oil
135 Me.
matter.”
et
v. New
gathered
452.
from
whole instru-
Intention should be
Morton,
Monk
presently payable in earned the future. *** present, payable in the future. until tion is earned in the may retire, when he the time arrives retirement right; are an inchoate but when the conditions satis- fied, vested at that time retirement becomes a deprived; persons entitled cannot it has thereto obligation.” ripened Board Retirement Alle- into a full 400, 404, gheny County McGovern, (Penn.), 174 Atl. v. citing Lynch ours), S., (underscoring v. U. 292 U. S. S. Ct. Ryan Law Aero- Division Labor v. Enforcement (Cal.), Co., for the col- (2nd) Pac. case nautical plaintiff had com- of vacation in which the lection *8 service, plied year required a the contention one precedent a was, to the condition clause ambiguous recovery. and not right held it was court necessarily precedent. The was inserted a condition clause accomplish and to induce and faithful service to continuous objects employee employment. That the in the to remain substantially to the procured, the benefit inured been have a Equity justice require liberal construction. employer. stipulations or disinclined to construe courts That are compelled by precedent, unless a condition contract as particular- plainly expressed, and contract the words ly so case also when result would work a forfeiture. This provision gratuity pay not a or decides for vacation is gift wages. but a contract for additional employee fulfilling
“An a these conditions then vested has destroyed, pay interest cannot weak- retirement be ened, departed legislation. by subsequent or from Neither office, any involuntary dismissal from service or nor re- moval, right pay. can affect vested We this retirement specifically endeavored to hold in the McGovern case that eligibility complete pay is as soon as an for retirement em- ployee system member of the retirement satisfied the has requisite retirement, conditions whether immediately chooses to retire or to continue active ser- rights vice. His such are fixed as of the he at- time eligibility. tained Until as retirement is earned above right During period described the is inchoate. retire- being right up. ment built The inchoate a becomes complete right vested when the connected with conditions particular system complied retirement are with. This right by legislation.” cannot be thereafter disturbed Mc- Bride (Penn.), v. Retirement Board 199 Atl. say ambiguity,
We ambiguity, is no if there there is following ambiguous is the “The law: rule that against strongly will construed him more who uses the arises, concerning words which doubt than an more arbi- trary purpose give rule. Its is to effect to the intention of parties. To the maker of an instrument is available lan- guage adequately with which to forth set the terms thereof. presumed It is that he will not leave undeclared that which *** agreement. he would claim as his under the ‘He speaks speak plainly, who party may should or the other ex- ” plain advantage.’ Morton, own supra. to his Monk v. Contract, provides “The Restatement of Sec. 261 where promise it is doubtful whether words create express or an *** condition, they interpreted creating promise are *9 contracts Section in his work on and Professor Williston protects par- interpretation says both an thereof: ‘Such consequences and not involve the ties to the transaction does wholly discharges slight perform all a that failure to ” Labor Law Division under the contract.’ Enforcement (Cal.). Ryan (2nd) Co., 236 Pac. v. Aeronautical defendant, not the mind that this borne in It must be contract, should plaintiff, and for reason it made this against strongly The construc- the defendant. be construed opinion gives is majority to the contract tion which the strongly defendant. favor comple- promise a construed
Unless service, employee twenty years’ could work more tion of might adjudged a twenty years, than then the resigned, bankruptcy employee bankrupt before resignation. twenty nor a After a dismissal neither might resignation, contract and before the service nothing renewed, he because could collect not be resigned was in effect. had not while payable due and is never states only employment, if the then the termination of until pay- conditions that it is under such contract be terminated according to the terms thereof. able contract, it majority opinion this has construed resigning made a mountain It has written new one. has twenty years’ It completion a mole hill. service and the strongly against contract so written the has bringing about forfeiture that it succeeded has given years’ service, twenty remuneration man’s judg- it, defendant. We think the State but to this for not to plaintiff. ment should be *10 Dissenting opinion. J., origi- Dissenting. only I The issue which Thaxter,
nally thought inwas whether the was case was properly Publishing Company by Guy dismissed Gannett Judge Murray’s dissenting opinion for cause. has convinced wrong. simple me I No was such solution exists. question is whether to sever- became entitled pay provided VII, ance in Article of his contract spite fact he was dismissed for cause.
Upon application publisher written to the to terminate his employment, he became entitled to after he completed years twenty had of service. There no other qualification. right him, That not could be taken from as here, though may done even he have misbehaved after having to severance accrued worked for twenty years. binding
This is a employer on the as as employee. well on the did not lose all his rights which had may accrued it under he because have mis- rights behaved such after accrued. had interpreting labor these it contracts is essential that strictly written, we think construe them may as not we they written, should certainly have been inter- polating words them which are not there. dissenting Judge
I concur in the Murray.