American Bus Lines v. Page

• Decision Date: 23 March 1978
• Docket Number: No. 3-1275A277,3-1275A277
• Citation: 373 N.E.2d 928,176 Ind.App. 5
• Parties: , 23 Wage & Hour Cas. (BNA) 821, 85 Lab.Cas. P 55,154 AMERICAN BUS LINES, a division of Continental Trailways, a division of National Trailways, Defendant-Appellant, v. Robert PAGE, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 928

373 N.E.2d 928

176 Ind.App. 5, 23 Wage & Hour Cas. (BNA) 821,

85 Lab.Cas. P 55,154

AMERICAN BUS LINES, a division of Continental Trailways, a division of National Trailways, Defendant-Appellant, v. Robert PAGE, Plaintiff-Appellee.

No. 3-1275A277.

Court of Appeals of Indiana, Third District.

March 23, 1978.

Thomas M. Gallmeyer, Rothberg, Gallmeyer, Fruechtenicht & Logan, Fort Wayne, for defendant-appellant.

James M. More, Bloom & Bloom, Fort Wayne, for plaintiff-appellee.

HOFFMAN, Judge.

Robert Page brought an action against his employer, American Bus Lines, a division of Continental Trailways, a division of National Trailways, (American), for wages due on his services performed as a driver and for penalty damages and attorney fees associated therewith because of American's failure to comply with the provisions of IC 1971, 22-2-5-1 (Burns Code Ed.) and IC 1971, 22-2-5-2 (Burns Code Ed.). ¹ The cause was tried to the court without a jury whereupon judgment was entered for appellee Page and against the appellant American.

From this judgment American perfected its appeal contending contrary to the trial court's findings that the Indiana Wage Law is not applicable to American, that the correct law to apply is that of Ohio and that in any event, Page's request for payment was not made in accordance with the provisions of IC 1971, 22-2-5-1, supra.

The dispute arose out of the following facts. American Bus Lines, Inc. is a wholly owned subsidiary of Continental Trailways, Inc. which is in turn owned by National Trailways, Inc. Continental Trailways through whom American receives its payroll has its office in Dallas, Texas. The appellee Page was hired as a bus driver by American in Hinsdale, Illinois, on March 28, 1969. While living in Illinois, Page was paid on the 12th and 27th of each month apparently in accord with the wage statutes applicable there. ² Thereafter in March 1971, Page exercised his seniority and moved to Toledo, Ohio, where he acquired a Fort Wayne, Indiana to Detroit, Michigan route with the same employer. While in Ohio appellee received his pay on the 15th and 30th of each month. American unilaterally made this change apparently to take advantage of the statutes in that state requiring payment of employees not later than 15 days after the work performed. ³

On August 10, 1973, Page again exercised his seniority this time receiving a more preferable Fort Wayne to Detroit route. As a result he moved his residence from Toledo, Ohio to Fort Wayne, Indiana. On September 3, 1973, and September 29, 1973, appellee sent letters to his employer relative to his receipt of wages at his new residence. The second of these states in pertinent part:

"As you know, I have been a resident of Indiana since August 25, 1973. You have a copy of my letter to Tom Donahue, September 3, requesting for my check to reflect Indiana tax deductions and not those from Toledo and Ohio.

"Since this request has been ignored I am turning the matter over to Mr. J. Clifton Hirschman, Director of Indiana Wage Claims and consulting the Ohio and Indiana and Toledo City tax offices.

"Also, as of today I am requesting my pay check on the 10th and 25th of each month in accord with Indiana wage payment statutes (enclosure). This means my wages from September 16-30 are payable October 10, etc. It is important for the company to realize they are subject to a fine (enclosure) for failure to comply with this request.

"Since my home terminal is Fort Wayne I would like my checks sent here in the future, to the Trailways office, on or before the 10th and 25th of each month. The Company's failure to act has already cost me Toledo City Tax of $6.54 on my check Sept. 15, and now $10.11 on my check of Sept. 30."

After sending this letter, however, Page continued to receive his pay at Toledo, Ohio at the later time and the company continued to make deductions for Ohio taxes.

Accordingly, appellee filed his complaint alleging inter alia that American was doing business in Indiana, that he was a resident of Fort Wayne, and that wage payments to him by the company had been delinquent in contravention of IC 1971, 22-2-5-1, supra and IC 1971, 22-2-5-2, supra. Page prayed for damages of 10% Per day of the amount due between when the pay was received and when it was due under the statute and for allowable attorney fees. Upon trial to the court the following findings and judgment were entered for Page.

"The Court now finds that the defendant is doing business in the State of Indiana for the purpose of the Indiana wage statutes.

"The Court further finds that the plaintiff is a resident of Indiana; and further finds that the plaintiff have (sic) notice as required by the Indiana wage statutes.

"The Court further finds that the parties are bound by the terms of the Indiana wage statutes.

"It is therefore concluded that the law is with the plaintiff and against the defendant.

"It is therefore ordered and decreed that the plaintiff have and recover damages pursuant to the statute in the amount of Ten Thousand Dollars ($10,000.00) together with the attorney fees in the amount of Two Thousand Nine Hundred Dollars ($2,900.00), making a total judgment of Twelve Thousand Nine Hundred Dollars ($12,900.00)."

On appeal American first contends that it entered into an employer-employee agreement with Page outside the State of Indiana thereby precluding the applicability of IC 1971, 22-2-5-1 (Burns Code Ed.) and IC 1971, 22-2-5-2 (Burns Code Ed.) to the case at bar. Thus, if any wage statute should apply, appellant would have it be that of Ohio, the state with which Page is said to have had the most intimate contacts under conflict-of-laws rules. See, W. H. Barber Co. v. Hughes (1945), 223 Ind. 570, 63 N.E.2d 417. American relies for support on the fact that Page was paid in accordance with the laws of Ohio prior to his move, that most of the mileage involved in his bus route was in Ohio and that since 1971, Page had received his assignments, communiques and wages in Toledo, Ohio.

However, this argument in favor of using Ohio law ignores fundamental characteristics of the case at bar. The question presented does not involve the interpretation of a private contract nor which forum's laws will apply to the interpretation of that contract. Rather the issue is whether the factual circumstances surrounding the parties come within the confines of IC 1971, 22-2-5-1, supra, and compel its application as a function of the police power of this state. The conflict of laws problem posed by the appellant is not relevant to the facts herein except in this context. Thus, attention must be given to the requirements of the statute and whether the circumstances in the case at bar justified the trial court's application of the penalty section of IC 1971, 22-2-5-2, supra, to American.

IC 1971, 22-2-5-1, supra, prescribes several essential requirements. The first of these is that the employer must be a ". . . (P)erson, firm, corporation, or association, their trustees, lessees or receivers appointed by any court whatsoever doing business in this state . . . ." American through Continental Trailways, Inc. had a terminal in Fort Wayne. Employed there is a resident commissioned agent engaged in selling tickets and express for American. A freight office was operated on the premises and taxes were assessed by Wayne Township in Fort Wayne, Indiana, against property owned by the company. The uncontradicted evidence therefore discloses that American is a corporation doing business in Indiana.

Secondly, IC 1971, 22-2-5-1, supra, provides that such enterprises, ". . . doing business in this state shall pay each employee thereof at least semi-monthly or biweekly, if requested . . . ." Appellant asserts in this regard that Page was actually employed in Ohio and not Indiana, and that his pay, supervision and assignments were given at the Toledo, Ohio Terminal. If indeed all of Page's contacts of employment were so substantially related to Ohio as to make application of the Indiana statute arbitrary, the issue posed might engender a different result. However, appropriate interpretation of IC 1971, 22-2-5- 1, assumes that the phrase "each employee thereof" designates one who is employed in the doing of business in this state viz, that one must be employed in Indiana before he comes within the provisions of the Indiana wage statute.

In the case at bar appellant's attempt to draw into question the place of Page's employment must be regarded as an invitation to weigh conflicting evidence. Such an invitation on appeal is declined. Harris Builders, Inc. v. Kopp (1974), Ind.App., 311 N.E.2d 841. The record reveals that Page moved to Fort Wayne, Indiana, where he became a resident on August 25, 1973. He made a request to be prospectively paid semimonthly in accord with the Indiana wage statute on September 29, 1973, only after a previous letter regarding Ohio tax deductions had been confirmed by the company for change of address purposes. Although he continued to receive his wages at Toledo, Ohio, against his expressed will to the contrary, Page began and ended his route in Fort Wayne driving 50 miles daily in Indiana. The company placed bid sheets and posted bid awards in the driver's room at the Fort Wayne Terminal. Page received communications concerning his employment there as well. The trial court's findings that these are sufficient indicia of Page's employment in this state to be afforded the benefit of its wage statute are supported by the record and become conclusive on appeal. American's conflicting evidence that Page drove 88 miles in Ohio and 76 miles in Indiana and Michigan and that its supervisory office was in Toledo are not factors which compel an opposite conclusion concerning appellee's employment under IC 1971, 22-2-5-1, supra. It is only where the evidence is without conflict and can lead to but one conclusion and the trial court has reached an opposite...