Clink v. BD. OF RD. COM'RS OF LIVINGSTON CTY.
Clink v. BD. OF RD. COM'RS OF LIVINGSTON CTY.
Opinion of the Court
Defendant, Board of County Road Commissioners of Livingston County, appeals the trial court’s denial of its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, following a five-day trial, after which a jury returned a verdict in favor of plaintiff, Walter Clink, in the amount of $152,000.
Plaintiff was hired by the Livingston County Road Commission as an assistant engineer in April, 1959. He continued in that position until August, 1969, at which time he was appointed superintendent. Plaintiff retained this position until April 25, 1974, when he was fired by a 2-1 vote of the defendant road commission. Commissioners Featherly and Simon voted to terminate plaintiff’s employment with the road commission, with Commissioner Jackson dissenting.
A considerable amount of testimony at the trial addressed the question of the duration of plaintiff’s employment with the road commission. Plaintiff conceded that at no time was his employment based upon a written contract with defendant. Rather, plaintiff testified that he believed the position to be permanent and that he thought that a former commissioner, Mr. Anderson, had told him the position was permanent, or at least available until he reached the mandatory retirement age of 65. At one point plaintiff testified that he thought defendant could not fire him for any reason short of good cause although he could leave the job if he gave adequate notice. In addition, plaintiff’s statements at an earlier deposition were introduced at trial and illustrated that plaintiff felt his position was a career position and that he was employed for life if his work remained satisfactory.
In the minutes of the commissioners’ meeting at which plaintiff was appointed supervisor there is no indication of the duration of the employment. Plaintiff admitted that no formal action was ever taken by the board making him a lifetime employee. On cross-examination, defense counsel brought out statements plaintiff had made in an earlier deposition that no one from the road commission had ever told him orally or in writing that he was employed for the duration of his work life and that he served "at the pleasure of the board”. Mr. Anderson, on cross-examination, denied informing plaintiff that plaintiff had a job for the rest of his life. The road commission employee clerk at the time of plaintiff’s discharge testified that he did not believe he had a lifetime contract but served at the pleasure of the board and could be discharged anytime the board was dissatisfied with his performance, although he could recall no other person who had been discharged against their will. Two of the commissioners on the board when plaintiff was fired, Andrew Jackson and James Featherly, denied knowledge that plaintiff had a lifetime contract and thought they could discharge an employee with whom they were not satisfied.
There was conflicting testimony concerning the competency and qualifications of plaintiff as superintendent. Commissioner Jackson testified that he felt plaintiff was a competent supervisor and skilled road builder and that an independent con-
Defense counsel introduced as evidence a number of complaints about road conditions. Commissioners Simon and Featherly both stated that they had good reasons for discharging plaintiff and listed specific complaints about his job performance.
Plaintiff was discharged at a road commission meeting on April 25, 1974. The subject of the discharge was not on the agenda of the regular meeting and came as a surprise to plaintiff, Commissioner Jackson and the clerk. At the end of the meeting, Chairman Simon called an executive session and dismissed plaintiff from the room. He then informed Commissioner Jackson that he and Commissioner Featherly had decided to fire plaintiff. When Commissioner Jackson tried to initiate a discussion, he was told by Commissioner Simon that there was no time to discuss it. Plaintiff was invited back into the room and the resolution discharging him was made.
The matter of the discharge had never been discussed with Commissioner Jackson and he was given no opportunity to contribute to the decision. Commissioner Featherly testified that the discharge of plaintiff was Commissioner Simon’s idea. The two of them had met at a private session on April 11, 1974, at which they decided to fire plaintiff. The meeting was held just after a regular board meeting at which all three commissioners had been present. Commissioner Simon admitted that plaintiff had no prior knowledge that he was
Defendant’s claim on appeal is that the trial court erred in failing to grant its motion for a judgment notwithstanding the verdict. Such a motion is appropriately granted only if the facts taken inferentially in the nonmoving party’s favor preclude judgment for the nonmoving party as a matter of law. Jackson v Fox, 69 Mich App 283, 285; 244 NW2d 448 (1976), lv den 399 Mich 863 (1977), Ebling v Masco Corp, 79 Mich App 531, 533; 261 NW2d 74 (1977), lv gtd 402 Mich 950j (1978), Sabraw v Michigan Millers Mutual Ins Co, 87 Mich App 568, 571; 274 NW2d 838 (1978), lv gtd 406 Mich 968 (1979). Applying this standard, we find that the trial court erred because the facts taken inferentially in plaintiff’s favor preclude judgment on Count I of the complaint as a matter of law.
The case was tried on the first count of a four-count complaint in which plaintiff requested a money judgment against defendant for the alleged breach of a lifetime employment contract with the defendant road commission. For the purpose of reviewing the trial judge’s denial of the defendant’s motion for judgment N.O.V., we proceed on the assumption that the plaintiff established the existence of a "lifetime” employment contract and that he had been discharged without good cause and without adequate notice. On appeal plaintiff does not dispute this conclusion but prefers to refer to his situation as "an implied contract of employment for a specified term”, to wit: employment with the road commission for the rest of his work life. Regardless of the phraseology used, it is clear that the case was tried, considered and determined by the jury on the theory that plaintiff’s
Assuming plaintiff proved that he had an implied contract for lifetime employment, he would still have no cause of action for breach of contract based on the length of his previous employment with the defendant road commission. Under Michigan law a contract for permanent employment is a contract terminable with or without cause by either party at any time. In Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937), the rule was stated thus:
"Contracts for permanent employment or for life have been construed by the courts on many occasions. In general it may be said that in the absence of distinguishing features or provisions or a consideration in addition to the services to be rendered, such contracts are indefinite hirings, terminable at the will of either party.”
This rule has been consistently followed by Michigan courts, Sullivan v Detroit, Ypsilanti & Ann Arbor Railway, 135 Mich 661; 98 NW 756 (1904), O’Connor v Hayes Body Corp, 258 Mich 280; 242 NW 233 (1932), Lynas v Maxwell Farms, 279 Mich 684; 273 NW 315 (1937), Adolph v Cookware Co of America, 283 Mich 561; 278 NW 687 (1938), Hawt
Thus, as recently noted in Rowe v Noren Pattern & Foundry, supra at 258:
"In Michigan, as well as in a majority of states, the rule is well established that, in the absence of some special consideration passing from the employee to the employer, other than the services to be performed by the employee, a contract for employment for an indefinite term is a contract which may be terminated at any time by either party for any reason or for no reason at all.”
Accordingly, since the proofs offered at trial, viewed in the light most favorable to plaintiff, establish the existence of a lifetime contract of employment with the defendant road commission, we must conclude that in the absence of distinguishing features or some special consideration it was a contract terminable at the will of either party. Since plaintiff was fired by a two to one vote of the road commission, pursuant to their statutory authority (cf., MCL 224.9; MSA 9.109), this exercise of the commission’s will terminated any employment relationship previously in existence between the two parties.
Our review of the case law on this question illustrates the lack of merit in plaintiff’s contentions. One line of cases holding that a contract for permanent employment is binding and enforceable beyond the termination of the employee by the employer involves situations in which the employee releases a claim held by him against the one offering the employment. Hobbs v Brush Electric Light Co, 75 Mich 550; 42 NW 965 (1889), Brighton v Lake Shore & M S R Co, 103 Mich 420; 61 NW 550 (1894), Stearns v Lake Shore & M S R Co, 112 Mich 651; 71 NW 148 (1897), Sax v Detroit, G H & M R Co, 125 Mich 252; 84 NW 314 (1900). This rule has been adopted and applied in situations in which "there is to be found an element of consideration in addition to the services for which the contract was made”. Lynas v Maxwell Farms,
Another line of cases holds that where the employee’s discharge contravenes some settled public policy of this state, an employee serving under a contract terminable at will has a cause of action for wrongful discharge. Toussaint v Blue Cross & Blue Shield of Michigan, supra at 434, Milligan v The Union Corp, supra at 182, Trombetta v Detroit, T & I R Co, 81 Mich App 489, 495; 265 NW2d 385 (1978). Thus, for example, the discharge of an employee serving under an indefinite contract of employment cannot be terminated on the
We have not found, and plaintiff does not cite, any case in which plaintiff’s mere longevity or loss of possible pension benefits enables him to defeat the terms of a contract otherwise terminable at will. Accordingly, defendant’s decision to discharge plaintiff as superintendent of the road commission was, based upon the proofs submitted at trial, irreproachable as a matter of law. In so ruling, we are not unmindful of cases such as Paxson v Cass County Road Comm, 325 Mich 276; 38 NW2d 315 (1949), and Hall v Detroit, 383 Mich 571; 177 NW2d 161 (1970). In those cases, the proof offered by plaintiff at trial established the existence of a contract for employment for a given period of time: one year’s service. The question in such cases involved the actual term of employment for the plaintiff employee. Here, though defendant offered contrary evidence, the plaintiff sought to establish, and the jury was persuaded, that plaintiff’s term of employment was for life. In so doing, perhaps plaintiff proved too much, for the result was to justify as a matter of law defendant’s ability to terminate plaintiff’s employment at any time and for any reason. Defendant did so, and the trial court’s error in failing to grant defendant’s motion for judgment notwithstanding the verdict stems from its failure to perceive this legal distinction.
Plaintiff further contends that, regardless of the
"I charge you that public employment is a property right of an individual employee. That is entitled to the safeguard of due process of law, and guaranteed by the Michigan and the United States Constitutions.”
In charging the jury, the judge indicated that he was relying on Casad v City of Jackson, 79 Mich App 573; 263 NW2d 19 (1977), Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972). Defendant objected to the instruction.
In each of the above cited cases, the aggrieved employee had a property interest in his public employment with the defendant. In Casad, supra, plaintiff had a property interest since he enjoyed civil service status prior to his discharge under constitutionally defective review procedures. In Perry v Sindermann, supra, a nontenured teacher was permitted to show that nonretention deprived him of a property interest because a de facto tenure system existed at the institution. In both cases, reference to state law indicated that the nature of the interest justified due process protection. Board of Regents of State Colleges v Roth, 408 US 564, 577; 92 S Ct 2701; 33 L Ed 2d 548 (1972). Thus, where the public employee has no property right in his job, due process considerations do not attach. Bishop v Wood, 426 US 341, 347; 96 S Ct 2074; 48 L Ed 2d 684 (1976), Scott v Ann Arbor, 76 Mich App 535, 539-540; 257 NW2d 157 (1977).
"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v Roth, 408 US at 577.
As noted in our earlier discussion, plaintiff’s contract for lifetime employment accorded him no "legitimate claim of entitlement” to a job until age 65. Rather, he was subject to discharge upon any whim or reason by the defendant road commission. This has been and continues to be the law of this state where contracts for permanent employment are involved. Though the equities seem to be on the plaintiff’s side, the law and the "rules or understandings that secure certain benefits and that support claims of entitlement to those benefits” are not. Id. Since plaintiff’s job could be terminated for a "good reason, bad reason, or no reason at all”, it follows that he had no property right in his job, and therefore, was not entitled to the protections offered by the due process clauses of the United States and Michigan Constitutions.
The trial judge erred in permitting the jury to consider plaintiff’s due process contentions as a matter of law. Accordingly, he erred in failing to grant defendant’s motion for a judgment notwithstanding the verdict.
Reversed. No costs, a question of public interest being involved.
Defendant asserts that the proofs offered at trial established only that plaintiffs employment was of indefinite duration and not a contract for life. Defendant contends that contradictory testimony of plaintiff that he could leave the job if he gave adequate notice or he served at the pleasure of the Board of Commissioners indicated a lack of mutuality of obligation for a lifetime contract. Paxson v Cass County Road Comm, 325 Mich 276, 283; 38 NW2d 315 (1949), Toussaint v Blue Cross & Blue Shield of Michigan, 79 Mich App 429, 433; 262 NW2d 848 (1977), lv gtd 402 Mich 950h (1978). However, the fact that the jury found such a contract existed, as evidenced by their verdict, indicates that the jury chose to believe plaintiffs other testimony; that he had a contract for life, see Paxson v Cass County Road Comm, supra. We are bound by the jury’s factual determination in this regard.
Dissenting Opinion
(dissenting). I respectfully
In most patronage jobs, the employee serves at the whim of the appointing authority. Accordingly, the occupants of such jobs usually change with the change of administrations. Here, however, plaintiff was in the employ of the road commission for approximately 15 years. There was testimony that other employees who served in appointed positions had never been discharged. In fact, there existed within this department an unwritten rule that employment would continue as long as an employee’s work was satisfactory.
The record shows the following: plaintiffs work was more than satisfactory, no grievances had ever been filed against plaintiff; and not only was plaintiffs contract automatically renewed each year but there existed an implied agreement for continuous employment. The record further shows that plaintiff was summarily discharged, no notice of termination and no reasons for termination were given.
The majority states that although the. equities are on plaintiffs side, plaintiff proved too much by showing that the contract was for life and therefore could be terminated "for a good reason, bad reason or no reason at all”. The majority points out that if plaintiff had a property interest in his employment, defendant would have been required to provide him certain due process procedural protections before summarily discharging him. Casad v City of Jackson, 79 Mich App 573; 263 NW2d 19 (1977), and Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972).
From the facts which were presented here I would find that, as in Perry v Sindermann, plaintiff had a property interest in his public employ
Since plaintiff was not afforded these protections, I believe he had a cause of action and the trial court was not in error in submitting this issue to the jury.
I would affirm.
Reference
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- Clink v. Board of County Road Commissioners of Livingston County
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