Baker v. R. D. Andersen Const. Co., Inc.

• Decision Date: 20 May 1982
• Docket Number: No. 52954,52954
• Citation: 644 P.2d 1354,7 Kan.App.2d 568
• Parties: , 25 Wage & Hour Cas. (BNA) 962 Robert BAKER and Roger DeHart, Appellants, v. R. D. ANDERSEN CONSTRUCTION CO., INC., Appellee.
• Court: Kansas Court of Appeals

Page 1354

644 P.2d 1354

7 Kan.App.2d 568, 25 Wage & Hour Cas. (BNA) 962

Robert BAKER and Roger DeHart, Appellants, v. R. D. ANDERSEN CONSTRUCTION CO., INC., Appellee.

No. 52954.

Court of Appeals of Kansas.

May 20, 1982.

Review Denied July 21, 1982.

Syllabus by the Court

1. The fundamental rule of statutory construction is that the intent of the legislature must control; all other rules of construction are subordinate.

2. The legislative intent should govern even though it does not follow the literal words of the statute; words, phrases or clauses may be omitted or inserted in appropriate places to achieve this result. When a statute is susceptible to more than one construction, it should be considered in its entirety and in light of the legislative intent; a statute should never be construed so as to produce uncertainty, injustice or confusion if it is possible to construe it otherwise.

3. In determining legislative intent, the courts should look to the purpose, necessity and effect of the statute. Consideration should be given to the causes of a statute's adoption, the historical background and the effect the statute may have under the various constructions suggested.

4. The purpose of K.S.A. 44-201 is to relieve laborers, workmen, mechanics and similar employees from the pressure of economic conditions which compel them to work beyond just limits of time and endurance. It is a human life, health and welfare statute, to be given a beneficial interpretation for the public good.

5. A major policy underlying K.S.A. 44-201 is that workers employed on public works projects should receive the same wages as workers doing the same tasks on a substantially similar private project. Thus one purpose of the law is to insure that workers engaged in public projects are not penalized by receiving a lower wage than workers in the private sector.

6. Workers, although in the same generic class of employment, are not necessarily always in the "same trade, occupation or work of a similar nature," to use the statutory language. Persons employed to do similar tasks may nevertheless not be in the "same trade, occupation or work of a similar nature," owing to the fact that such workers perform these similar tasks in substantially different work environments. K.S.A. 44-201 should be construed in light of these statements.

7. In computing the "current rate of per diem wages" for the purposes of K.S.A. 44-201, only those workers employed to do similar tasks on similar classifications of projects should be taken into account. Only if no classification of projects, and therefore no differential wage rates exist, should consideration be given to all the workers in the locality doing similar tasks, regardless of the setting they work in.

8. When ruling on a motion for involuntary dismissal under K.S.A.1981 Supp. 60-241(b) at the close of plaintiff's case, a trial judge sitting without a jury has the power to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case.

9. On appellate review of an order of involuntary dismissal entered as per the situation above, the findings of fact made by the trial court will be upheld if there is substantial evidence to support them, and the evidence will be viewed in the light most favorable to the party prevailing at trial.

Thomas H. Marshall and Steve A. J. Bukaty, of Blake & Uhlig, Kansas City, for appellants.

Stewart L. Entz, of Colmery, McClure, Funk, Letourneau & Entz, Topeka, for appellee.

Before SPENCER, P. J., and REES and MEYER, JJ.

MEYER, Judge:

This appeal was taken by plaintiffs Robert Baker and Roger DeHart (appellants) from an involuntary dismissal of their action filed pursuant to K.S.A. 44-201 et seq.

By agreement dated May 2, 1978, between the appellee, R. D. Andersen Construction Co., Inc., and the State of Kansas, Kansas Neurological Institute, the appellee was to complete general construction of the Honey Bee Lodge and Hospital Care Facility for a total contract price of $1,553,560.00. The contract, at paragraph 9, states as follows:

"And it is expressly understood by each party to this contract, that the same shall be performed according to the provisions of K.S.A. 44-201, which is generally known as the 'eight-hour law.' "

Appellant Baker was employed by the appellee on the subject project beginning on July 29, 1978, and ending on November 4, 1978. During the time of his employment, appellant Baker performed work for the appellee and was compensated at the rate of $4.25 per hour.

Appellant DeHart began work for the appellee on the subject project on October 17, 1978, and his employment terminated on November 3, 1978. During that time he performed work for the appellee and was paid at the rate of $3.50 per hour.

After learning of the provisions of K.S.A. 44-201, which requires that the current rate of per diem wages be paid by contractors performing work for the state of Kansas, appellants initiated this action to recover the difference between the current rate of per diem wages as established under the statute and the rate of wages they were actually paid by the appellee.

When the case came on for trial, appellants presented their evidence relating to the work which they actually performed and the rate of pay which they received for that work. As an aid in testifying, appellants prepared a "Summary of Work Done by Baker and DeHart," which was admitted by stipulation of the parties. After this evidence of the type of work actually performed, appellants offered the testimony of several expert witnesses. These witnesses expressed their opinions relating to "work of a similar nature," "greater number of workmen," and "current rate of per diem wages."

At the close of appellants' evidence, appellee moved for a directed verdict; the court, sitting without a jury, treated this as a motion for involuntary dismissal. The court upheld the motion and appellants' action was dismissed.

The court construed the statute in question as requiring a "task-by-task" analysis of the work done by appellants, followed by a computation of the per diem wage paid to the greater number of all workers in the locality who perform the same or similar tasks, regardless of the type of construction project where such tasks are performed. Appellants sought to prove that the prevailing wage for admittedly similar tasks varied according to the type of project setting (i.e., residential, commercial or heavy construction), in which these tasks were performed. Their evidence was confined to the wages paid to workers performing similar tasks in similar project settings, that being heavy construction in this case. The court considered this inadequate proof, as evidence of wages paid to workers performing similar tasks in different project settings was not presented. Because the court believed that the statute required consideration of all workers performing similar tasks, it ruled that appellants' evidence failed to present a prima facie case, for they had excluded from their wage computations workers laboring in project settings different than their own. For this reason, the court sustained appellee's motion for involuntary dismissal.

Appellants filed the instant appeal, contending that the construction of K.S.A. 44-201 applied by the trial court was incorrect, and that under the correct construction of that statute appellants had indeed presented a prima facie case, and that therefore the dismissal of their petition was error.

The major issue in this case turns on whether the trial court's construction of 44-201 was correct. In ruling on the meaning and requirements of that statute, the lower court was stating a conclusion of law; appellate review of conclusions of law is unlimited. State, ex rel., v. Doolin & Shaw, 209 Kan. 244, 261, 497 P.2d 138 (1972).

The general rules governing statutory construction are well established. The opinion of the court in Coe v. Security National Ins. Co., 5 Kan.App.2d 176, 180, 614 P.2d 455 (1980), contains an excellent review of several basic tenets, extracted from prior cases. To summarize the court's statements there, it has been held that the fundamental rule of statutory construction is that the intent of the legislature must control; all other rules of construction are subordinate. The legislative intent should govern even though it does not follow the literal words of the statute; words, phrases or clauses may be omitted or inserted in appropriate places to achieve this result. When a statute is susceptible to more than one construction, it should be considered in its entirety and in light of the legislative intent; a statute should never be construed so as to produce uncertainty, injustice or confusion if it is possible to construe it otherwise.

It is also clear that, in determining legislative intent, the courts should look to the purpose, necessity and effect of the statute. State ex rel. Stephan v. Lane, 228 Kan. 379, 390, 614 P.2d 987 (1980). Consideration should be given to the causes of a statute's adoption, the historical background and the effect the statute may have under the various constructions suggested. State, ex rel., v. City of Overland Park, 215 Kan. 700, 713, 527 P.2d 1340 (1974).

The basic idea underlying all these rules is not a new one:

" 'It is not the words of the law but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.' (Quoted from the dissent of Mr. Justice Harlan in the Civil Rights Cases, 109 U.S. 3 (1883), 3 S.Ct. 18, 27 L.Ed. 835.)" Mahone v. Mahone, 213 Kan. 346, 350, 517 P.2d 131 (1973).

These general precepts are the ones which we shall apply in determining the proper construction to be given 44-201, an undertaking necessarily antecedent to determining if the trial court's construction was correct.

K.S.A. 44-201, popularly...