Carroll v. People's Ry. Co.

• Decision Date: 18 December 1883
• Citation: 14 Mo.App. 490
• Parties: MICHAEL CARROLL, Respondent, v. PEOPLE'S RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

14 Mo.App. 490

MICHAEL CARROLL, Respondent,

v.PEOPLE'S RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 18, 1883.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

GIVEN CAMPBELL, for the appellant.

MCKEIGHAN & JONES, with E. J. O'BRIEN, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The petition states that in May, 1880, the plaintiff was employed as a car conductor, at the wages of $2 per day, said wages being payable on the third and eighteenth days of each month; that he served the defendant as such, at said rate of wages, continuously to July 29, 1882, when he was discharged by the defendant; that from time to time during said period he requested the defendant to retain and keep for him certain portions of his wages until he demanded them; that the defendant did so at various times, and in various amounts, amounting in all to $491, which the defendant promised to pay the plaintiff on demand, but has failed to do so; and he asks judgment for that sum and interest.

The answer of the defendant was a general denial.

At the trial, Michael Carroll, sworn for himself, said that he entered the service of the company, as conductor, about April 1, 1880, at the rate of wages of $2 per day, and remained in its service to about July 11, 1882. “William B. Ryder was secretary and treasurer of the company. There were two regular pay-days each month, the third and eighteenth of the month. The first transaction was when I first commenced. I paid for a book and some tickets and had $10 left, which I told Mr. Ryder that I would like to leave in the office, so that I could draw it, and afterwards I drew it in tickets. The first proceeding of this money-leaving was about the first of June. I said to Mr. Ryder that, if I continued, I wanted that he should have this money entered on the book according as I left it in, so that any time I would go in there to draw this money, whether voluntarily or otherwise, it could be settled up from this book (the pay-roll book), and Ryder agreed to it. Under this understanding I continued on to do so, believing that I was leaving the money in the hands of the company, and the amount so left was in the aggregate of $491. The part I didn't draw I never saw it; it was not handed to me and by me handed back. It was understood between me and Ryder that he would enter it on the book where it would show, and I saw him mark it on the book. I did not know whether Ryder was personally responsible, and had no conversation with him about this money outside of the office. I signed the pay-rolls for the amount due me set opposite my name.”

On behalf of the defendant, W. B. Ryder testified that, from April, 1880, to June 3, 1882, he was secretary and treasurer, and had charge of the books of the defendant. “It was an universal rule of the company that the employés were to be paid on the third and eighteenth of each month, and all had notice of it, and they were required to go up and sign the pay-rolls on those days. It has been the custom for the last twenty-three years, as was done in this case, for the men to come up and sign the pay-roll and leave a part of the money with me as an individual. [It was admitted by counsel for the plaintiff that the plaintiff signed the pay-roll in full for all wages.] All that the plaintiff would say was, ‘I want to leave $20 in,’ or some other amount, and would say, ‘Give me the difference;’ he never told me that he wanted the defendant to retain and keep a certain portion of his wages. I always paid him off; he knew the regular pay-days, and that the employés were required to come up on those days and be paid off; that such was the practice of the company. He merely asked me to retain the money and keep it for him. He came to me after I left the employment of the company, and wanted to know when I could pay him; how soon I could do it. The entries on the pay-roll of the amounts left in were in pencil; and I kept a memorandum of these amounts in a book of my own. I do not know that the company ever had knowledge that the men were leaving money with me. I never informed the plaintiff that I had any authority from the company to retain any part of his wages for the company; he never asked me.”

Julius S. Walsh was president of the defendant corporation. He testified that it was the practice of the company to pay its employés twice a month, and all employés were required to draw their wages then. “The plaintiff never asked the company, to my knowledge, to retain and keep any part of his wages, and the company never promised to pay him any of these amounts. The company was not aware of these transactions with Mr. Ryder until he resigned. I had charge of running the road; Ryder of the books and office.”

The plaintiff, recalled, said he never demanded his money of Ryder; Ryder never gave him money which he gave back. This was all the evidence.

At the close of the plaintiff's case, the defendant offered an instruction that, under the pleadings and evidence the plaintiff could not recover, which the court refused to give. The court then gave the following instruction at the request of the plaintiff: “The court instructs the jury that, although they may find that plaintiff Carroll signed a receipt on the pay-roll of the defendant for the full amount of wages agreed to be paid him by the defendant, yet if the jury find from the evidence that Carroll, as a matter of fact, did not draw all his wages, but left from time to time a part thereof with the defendant, they will find their verdict for plaintiff Carroll and assess his damages at the amount of said wages, which they may find that he left with the defendant, with interest on said amount at the rate of six per cent per annum from the institution of this suit to this date.” Of its own motion: 1. “If you believe that as a matter of fact the plaintiff has received from defendant the various amounts of money shown by the pay-rolls opposite his signature, and that the same was the full amount of the wages by him earned, then you must find for defendant. 2. The court instructs the jury that if they believe from the evidence, that plaintiff gave a part of his wages to Wm. B. Ryder for safe keeping, or permitted him to take a part of his wages for his individual use, and at the same time signed a receipt in full to the defendant, intending thereby to acquit the defendant of all further liability to him on account of the money so given to or permitted to be taken by said Wm. B. Ryder, then the defendant is not liable in this action, even though said Ryder has not refunded the amounts entrusted to him. 3. The receipts of the plaintiff that have been read to you are prima facie evidence that the plaintiff has received the full amount in said receipts specified, and the burden of proof is on the plaintiff to satisfy you that he has not in fact received the sums specified therein.”

And the court refused the following instructions requested by the defendant:--

“1. The court instructs the jury, that if they find from the evidence that the secretary and treasurer on each pay-day was provided by [the company] the plaintiff ( sic) with sufficient money to pay off all its employes, including the plaintiff, and that on each pay-day the plaintiff signed a receipt in full of his demands against the company, then the court instructs the jury that the defendant is not liable to plaintiff for any sum left by him in the possession of Mr. Ryder, unless they find that he had authority from the company to receive and retain such money left in his hands by plaintiff as aforesaid.

2. The court instructs the jury that if the defendant paid over to its...