Opinion
February 10, 1950. Rehearing Denied February 25, 1950.
Appeal from the Circuit Court for Dade County, Marshall C. Wiseheart, J.
Hymen Lake, Miami Beach, for appellant.
Thurman A. Whiteside, Miami, and H. Earl Barber, Miami, for appellee.
The appellant sued the appellee, charging that he had been employed by appellee's agent and employee to report at Miami as an airport radio operator at a salary of $225 a month, had been promised that if he would report at Miami and take a training course for approximately thirty days his employment would be extended for a period of three years at some foreign station with additional compensation of $150 a month. He alleged that he accepted the agreement and traveled from Chicago, Illinois, to Miami, Florida, at his own expense, whereupon he was placed on the company's payroll at a salary of $225 a month and was entered in a training school. He further alleged that in pursuance of this agreement he was employed as an airport radio operator at San Juan, Puerto Rico, for three years and was transported there, with his family, at the expense of the company. Continuing, he averred that he entered upon his duties and undertook faithfully to discharge them, but the defendant, in violation of the contract, dismissed him after he had served a little more than two months, causing him damage.
To his declaration, which we have briefly analyzed, the appellee filed pleas (1) that it did not promise as alleged, (2) that it did not agree to employ appellant at a foreign station for a period of three years, (3) that the plaintiff had not lost or been deprived of wages, and (4) that the appellant had been gainfully employed since his discharge.
At the conclusion of the plaintiff's testimony the defendant, appellee here, moved the court for a directed verdict, but such a motion was not made at the conclusion of all the testimony in the case.
After the jury had been fully charged by the judge they considered their verdict and returned with one in favor of the appellant for $3,020.
Appellee's motion for new trial was granted, and subsequently, upon request of the appellant that the court designate the grounds for his action, the judge specified that he had granted the motion because the plaintiff had failed to prove agency, the instrument declared upon was not a contract of employment, the verdict was contrary to the law, and the verdict was contrary to the evidence. Because the last three of these are rather general we think it is important to give a condensation of the testimony on which the verdict was founded.
The appellant, a radio operator, read in the Sunday edition of a newspaper, presumably in Chicago, an advertisement that appellee needed radio operators; so the following day he got in touch with the representative of Pan American Airways whom he found at the United States Employment Office in that city, one E.S. Bowers, who had him fill out an application blank and examined him in some detail about his experience and his qualifications. The following day this examination was continued, and there was evidently much discussion about the nature of the employment, the further training of the appellant, and even the arrangements he would have to make about his personal affairs to accept it. For instance, there was a discussion about the storage in Chicago of the appellant's personal property should he enter appellee's service.
There was also conversation between them about the physical examination which would be required, and eventually this examination was made by a physician in Chicago. During the negotiations Bowers stated to the appellant that because of the appellant's qualifications he would be given the "top" salary of $250 and in addition would receive $150 monthly for service in Puerto Rico. Parenthetically, it will be noticed that there was a discrepancy here between the amount of the base salary alleged in the declaration and that testified to by the plaintiff.
It was a consequence of these negotiations that the appellant reported to the Pan American personnel office in Miami and entered the school maintained there, where he studied for a month, meanwhile receiving the base monthly pay of $250. Then C.A. Chase, described as Communications Supervisor of Pan American Airways, introduced himself to appellant and asked if the latter thought he was prepared to go to San Juan. At Chase's request the appellant called on Chase at the Pan American office, and there Chase signed two papers and delivered them to the appellant.
The first of these was a letter addressed to the appellant and signed by Chase, advising the appellant that he had been assigned duty as an airport radio operator at San Juan, for which point transportation had been arranged for the appellant and his wife and child on trip 225. He was ordered to report to the station manager and to the operator in charge for details in connection with the assignment upon arrival. The letter continued: "In accordance with present company policy, your assignment to foreign duty is for a period of three years," and then added that during this period the appellant would be allowed two weeks' vacation each year and a sixty-day home vacation at the end of the tour of duty. By the letter the appellant was assured that his salary would be effective on the date of his arrival and that he would receive a "foreign allowance" of the sum of $150 a month. He was further assured that he would be allowed actual expenses to assist him and his family in becoming "permanently" located and that he was then being provided with funds in the amount of $300 to be accounted for by his submitting an expense report.
The second paper, titled "Transfer and Travel Order Airport Radio Operator," was addressed to the appellant and contained the statement that "this order will confirm your Transfer to San Juan, P.R. for a period of Three years." In it the latest date of departure and the time for reporting at San Juan were given, as well as authority to travel on the aircraft of the company. It also contained authority for shipping personal effects and a reference to the amount in money which was being advanced to cover expenses. This order concluded with the word "Authorization," and immediately underneath there was affixed the signature of C.A. Chase, followed by the description "Authorizing Official."
After all the preliminaries in Chicago and in Miami the appellant and his family, pursuant to the letter and the order which he had received, were transported on the appellee's plane and at appellee's expense to San Juan, Puerto Rico, where he discharged his duties for slightly longer than two months, when he was suddenly dismissed solely, so far as this record shows, because of a "20 per cent layoff." He was informed of the discontinuance of his services by the chief radio operator, who had got his "orders from Mr. Chase."
After trying unsuccessfully for three weeks to secure employment in San Juan, the appellant returned to Miami, where he secured a position.
Thus far we have given the plaintiff's version which, it is hardly necessary to state, the jury had a perfect right to believe. Much of it is corroborated by the testimony offered by the defendant. Bowers, for instance, said that he was an employee of the appellee, at the times relevant to the dealings with the appellant, as a personal representative in the communications department and that he was recruiting radio operators at the time. He was performing his duties when he determined that the appellant was qualified for the place he sought and he was vested with authority to "offer him employment to report to Miami" if the appellant was found proficient. It is patent that he was rather thorough in his examination to determine this fitness. He said that he was not authorized to employ the appellant for any fixed period, and any employment after the appellant's name was placed on the payroll in Miami was in the control of the "supervisor." He said also that the appellant was to contact Chase when he arrived in Miami.
According to the defendant's testimony, Chase, described as section communication supervisor, received appellant upon his arrival at Miami, arranged for him to enter the training school, had his name placed on the payroll, and told him that when he had completed his training satisfactorily he would be sent to San Juan. He advised the appellant of living conditions at this post, the amount of salary which would be paid, and told him about the furlough and the yearly vacations, to which we have referred in condensing the letter which Chase sent.
There is some testimony about the meaning of the reference in the letter to the assignment for a period of three years "in accordance with present company policy," and a feeble attempt was made to show that this policy involved a probationary period of six months, during which he could leave the company or the company could dismiss him "for almost any reason." The witness, Chase, was very vague about whether any such provision was actually discussed with the appellant, and made his whole statement with reference to it even vaguer by stating that the book in which it was given came out of his files. It appears from the record that when the witness was asked to read the provision to which he referred he read as follows: "All operators are considered to be employed on a probationary basis for a period of six months following date of employment, and may be discharged at the company's option at any time within that period." So it is readily seen that the provision does not refer alike to employer and employee. Aside from this, there is no reliable testimony that this appellant ever knew of such a provision which might be grafted on the cause we have quoted from the letter and, besides that, the jury was justified in believing his flat denial of any knowledge of it.
From our perusal of this record we are convinced that the verdict the jury found from the facts, while guided in their study by the charge of the court, was not contrary to the evidence or the law, and that the picture we have undertaken to give of this transaction would convince layman and lawyer that there was a definite responsibility on the part of the appellee for the commitments made by Chase and Bowers, and that the appellee was responsible to the appellant for the contract entered into by them in its behalf.
There is one technical matter to be mentioned, and that is whether the issue of agency was raised by the plea of not guilty; however, it seems to us that it is unnecessary to dwell upon this point because whether it was or not, the appellant, by the negotiations with Chase and Bowers, the training at the company's expense and even the payment of a salary to appellant while he was being trained, the transportation (also at the company's expense) of the appellant and his family to Puerto Rico, the acceptance of his services for two months, and the dismissal of the appellant, not for lack of proficiency but because of an economical program, established that he was dealing with duly authorized agents of the company.
Reluctant as we always are to interfere with an order granting a motion for a new trial, we feel that the judge's position at the time he denied the motion for a directed verdict was correct, that the testimony introduced by the defendant fell far short of refuting that introduced by the plaintiff, and that the verdict should have been allowed to stand.
It is therefore ordered that the cause be reversed with directions to enter a judgment in favor of the appellant for the amount of the verdict and the costs.
Reversed.
ADAMS, C.J., and TERRELL and ROBERTS, JJ., concur.