Chicago, R. I. & P. Ry. Co. v. Russell

• Decision Date: 28 March 1927
• Docket Number: (No. 311.)
• Citation: 292 S.W. 375
• Parties: CHICAGO, R. I. & P. RY. CO. v. RUSSELL.
• Court: Arkansas Supreme Court

292 S.W. 375

CHICAGO, R. I. & P. RY. CO. v. RUSSELL.

(No. 311.)

Supreme Court of Arkansas.

March 28, 1927.

Appeal from Circuit Court, Union County; W. A. Speer, Judge.

Action by D. L. Russel against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Buzbee, Pugh & Harrison, of Little Rock, for appellant.

E. W. McGough, of El Dorado, for appellee.

SMITH, J.

This suit was instituted by appellee to recover from appellant certain wages due him and a penalty for their non-payment.

The cause was heard in the court below upon an agreed statement of facts, wherein it was recited:

"That on August 17, 1921, plaintiff, who was not a regular employee of defendant, was employed by one of defendant's engineers only to watch an engine belonging to defendant at Calion, Ark., said engine and the train to which it was attached being `tied up' at Calion on account of congestion of traffic in defendant's yards at El Dorado, Ark.; that plaintiff was hired to watch said engine until orders were received for said engine to proceed to El Dorado."

It was further recited in the agreed statement of facts that the engineer agreed that plaintiff should receive for the first 8 hours 64 cents per hour, and for every hour thereafter he was to have time and a half, or 96 cents per hour, and that plaintiff watched the engine from 10 a. m. to 10 p. m., making a total of 12 hours, and was entitled to receive the sum of $8.96.

The agreed statement of facts further recited that —

"At the expiration of said service plaintiff demanded said sum but it was not paid him. He thereupon requested that his money, or a valid check therefor, be sent to defendant's office at El Dorado, Ark., where defendant kept an agent. Plaintiff was given a statement of his time, which was signed by defendant's agent at Calion, Ark., and was told that his money or a valid check therefor would be sent to El Dorado, Ark., in 7 days."

At the expiration of the seven days plaintiff called at the office of the defendant in El Dorado and demanded of the agent in charge his wages, or a valid check therefor. The demand was not complied with, although repeated from time to time, and plaintiff was told by the agent upon each demand that he had no check for plaintiff.

After the institution of this suit an offer was made by the defendant railway company to confess judgment for the amount of wages due plaintiff. Upon the trial below before the court by consent, judgment was rendered in plaintiff's favor for $8.96 wages and $307.20 as penalty, and the defendant has appealed.

This suit was brought under section 7125, C. & M. Digest, and so much of it as is necessary to be considered here reads as follows:

"Whenever any railroad company * * * shall discharge with or without cause or refuse to further employ any servant or employee thereof, the unpaid wages of any such servant or employee then earned at...