269 Mass. 345

October 29, 1929 - November 27, 1929

Bristol County

Present: Rugg, C.J., Pierce, Wait, Sanderson, & Field, JJ.

Civil Service.

Although, after the suspension of several laborers in the employ of a city for lack of work, there was a violation of civil service rule 40, § 4, in that the senior in service of such employees was not reemployed until after some of his juniors had been reemployed, such violation, without any further action by the senior employee, did not entitle him to recover, in an action of contract against the city, wages for the period during which, under the rule, he should have been employed.

CONTRACT. Writ in the Third District Court of Bristol dated June 6, 1928.

Upon removal to the Superior Court, the action was tried before Collins, J. Material evidence is stated in the opinion. The judge ordered a verdict for the defendant. The plaintiff alleged exceptions.

J. T. Farrell, for the plaintiff.

B. B. Barney, for the defendant.

SANDERSON, J. This is an action of contract to recover for loss of wages, occasioned by the failure of the defendant to employ the plaintiff at the time when under the civil service rule he should have been employed.

The plaintiff was a laborer within class 1 of rule 32, § 2, of those rules. He was suspended by a notice in writing given by the superintendent of streets of the defendant city on October 22, 1927, and he asked for no hearing thereon and pursued no remedy outlined by G. L. c. 31, §§ 43 and 45. Other laborers of the same class of service as the plaintiff, but junior to him in point of service therein, had been suspended at the time he was, or prior thereto, but many of these were put back at work of the kind formerly done by the plaintiff, in violation of the seniority rule, while the plaintiff was so suspended, but after the expiration of the three-day period in which he could have asked for a hearing under

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G. L. c. 31, § 43. The plaintiff testified that in March, 1928, he saw these men at work, and that he requested in writing his own reinstatement setting out the violation of the seniority rule, but his request was not then granted. On April 9, 1928, he filed a petition for a writ of mandamus seeking reinstatement. While this petition was pending he was put back to work, on or about May 14, 1928, and he then discontinued the petition. On June 6, 1928, he commenced the present action.

At the close of the plaintiff's case, the defendant moved for a directed verdict and requested the judge to rule that the plaintiff has no right to recover in this action for the reason that the suspension ordered was by written notice, and the validity thereof was not brought into question for determination under the provisions of G. L. c. 31, § 45, as amended by St. 1925, c. 220, § 3, nor has mandamus been directed to issue in favor of the plaintiff. Thereupon the trial judge directed a verdict for the defendant subject to the plaintiff's exception.

Civil service rule 40, § 4, provides: "If the suspension is the result of lack of work because of the season, or any other temporary cause, such as the lack of money, laborers shall be suspended according to their seniority in the service, the oldest employee in point of service being retained the longest and re-employed first." Upon the facts this provision of the civil service rule was violated by the failure to reemploy the plaintiff before those junior to him in service were put back to work. But this violation of the rule did not give him the rights which would have been his on a reemployment, nor did he gain thereby a right to recover damages in this action. In Ransom v. Boston, 192 Mass. 299, a case in which the plaintiff was held entitled to recover in an action of contract, there had been no valid removal or suspension from the service and the plaintiff's right to compensation continued. See Ransom v. Boston, 196 Mass. 248, 251, 252; Bailen v. Assessors of Chelsea, 241 Mass. 411, 414.

No error appears in the order directing a verdict for the defendant.

Exceptions overruled.