Caviness v. Andes & Roberts Bros. Const. Co., 26329

• Decision Date: 01 April 1974
• Docket Number: No. 26329,26329
• Citation: 508 S.W.2d 253
• Parties: 21 Wage & Hour Cas. (BNA) 813, 73 Lab.Cas. P 53,295 Clifford David Crockett CAVINESS, Appellant, v. ANDES & ROBERTS BROTHERS CONSTRUCTION COMPANY, Respondent.
• Court: Missouri Court of Appeals

Page 253

508 S.W.2d 253

21 Wage & Hour Cas. (BNA) 813, 73 Lab.Cas. P 53,295

Clifford David Crockett CAVINESS, Appellant, v. ANDES & ROBERTS BROTHERS CONSTRUCTION COMPANY, Respondent.

No. 26329.

Missouri Court of Appeals, Kansas City District.

April 1, 1974.

William C. Paxton, Independence, for appellant.

Alan B. Slayton, Independence, for respondent.

Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.

WASSERSTROM, Judge.

The parties submitted this case for determination by the trial court on an agreed statement of facts. The situation so depicted is uncomplicated, though unusual. Plaintiff, appellant here, was an employee of defendant and participated in a payroll saving fund operated by the company, which was available on a voluntary basis to the employees generally. Employees at their discretion could deposit money in this fund, on which defendant would pay 7 per cent or such interest as it ordinarily incurred on loans from other sources. Plaintiff signed an authorization under which $20 per week was deducted from his pay and invested in the payroll saving fund. From the amounts so deposited, he made withdrawals from time to time.

On August 31, 1971, defendant discharged plaintiff. By that date plaintiff had become separated from his wife, who was the daughter of defendant's president. It is rather apparent that the marital discord serves at least in substantial part to explain the discharge.

Promptly after discharge, defendant paid to plaintiff all of his regular salary due. However, on the date of discharge he had a balance of $460 in the payroll saving fund, and this latter sum was not delivered to him. By letter dated September 29 1971, plaintiff demanded payment of this amount. On October 4, 1971, defendant's president responded by letter, as follows:

'In answer to your letter dated September 27, 1971 I wish to state that I have given this check to your wife, Kathy Caviness. If there are any further questions regarding this matter, it would be best to contact her attorney, Mr. Graham of Independence, Missouri.'

The wife, Kathy, filed a divorce suit on September 23, 1971. Plaintiff, on October 8, 1971, filed his petition in this suit, in two counts. Count I prayed damages for the $460 mentioned and for the further sum of $2,090.20 as continuing wages due and owing by reason of § 290.110, RSMo 1969, V.A.M.S. Count II of the petition claimed alternatively the same sum of $460 and in addition punitive damages in the sum of $100,000, plus attorneys' fees.

The whereabouts of the $460 check referred to in defendants letter dated October 4, 1971, remains undisclosed so far as the record in this case shows, until June 5, 1972. On the latter date, that check was finally delivered to plaintiff.

Judgment was entered by the trial court on July 13, 1972, in which there was set forth the court's findings and grounds of decision. With respect to Count I, the court found that the deductions for the company payroll saving fund did not constitute 'wages' within the contemplation of § 290.110 of the statute. With respect to the alternative Count II, the court found that the relationship between the parties was that of debtor and creditor and that 'under these circumstances an action will not lie for the conversion of a mere debtor's chose in action.' Plaintiff appealed, claiming that both of those rulings by the trial court are erroneous.

I.

Statutory § 290.110, upon which Count I is based, requires every employer to pay the 'unpaid wages' of a discharged employee and further provides that if the employer fails to do so within 7 days after written demand, then as a penalty the wages shall continue until paid for a period not to exceed 60 days. The validity of plaintiff's claim under this statute depends upon whether the balance due him in the employer's payroll saving fund constituted 'wages'.

That deposit cannot qualify under that concept. Plaintiff by his voluntary choice elected to have $20.00 of his wages deducted each week for deposit into the payroll saving fund. When that money was deducted weekly and invested, it was separated and changed in character from wages just as effectively as if the deduction were for the purchase of United States Government Savings Bonds. After the payroll deduction, the sum held by the employer in the payroll saving fund was held in a debtor-creditor relationship, not an employer-employee relationship.

If there could be any doubt concerning this analysis, that doubt would have to be resolved in favor of considering the saving balance due to the plaintiff as not being 'wages', for the reason that Section 290.110 is a penal statute and must be strictly construed. Monterosso v. St. Louis Globe-Democrat Publishing Co., 368 S.W.2d 481, l.c. 488 (Mo.1963); Lotz v. Missouri Distributing Co., 387 S.W.2d 179 (Mo.App.1965).

Accordingly, the trial court correctly ruled that plaintiff was not entitled to recover under Count I.

II.

The trial court also properly ruled that plaintiff could not recover under Count II. He was, of course, entitled to recover the sum of $460 at the time his petition was originally filed. However, on the following...