Chicago & S. E. Ry. Co. v. Glover

• Decision Date: 26 November 1901
• Citation: 62 N.E. 11,159 Ind. 166
• Court: Indiana Supreme Court
• Parties: CHICAGO & S. E. RY. CO. v. GLOVER.

159 Ind. 166

62 N.E. 11

CHICAGO & S. E. RY. CO.

v.GLOVER.¹

Supreme Court of Indiana.

Nov. 26, 1901.

Appeal from circuit court, Madison county; J. F. McClure, Judge.

Action by Robert J. Glover against the Chicago & Southeastern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. R. Crawford and W. C. Stover, for appellant. Kennedy & Kennedy, for appellee.

MONKS, J.

This action was brought in 1898 against appellant by appellee as assignee of a number of claims for labor. Appellant was a corporation engaged in the operation of a railroad. The labor sued for was performed for it by several persons in the years 1896 and 1897, to each of whom a separate time check was issued for each month. These time checks were assigned by the persons to whom issued to N. J. Glover & Son, and were by that firm assigned to appellee. Appellee sought to recover judgment for the time checks and interest, and for penalty and attorney's fees, under sections 1, 2, Acts 1885, p. 36, being sections 7056, 7057, Burns' Rev. St. 1901 (sections 5206a, 5206b, Horner's Rev. St. 1897). The cause was tried by the court, a special finding of facts made, and conclusions of law stated in favor of appellee, and judgment rendered against appellant for the amount of the time checks, interest, penalty, and attorney's fees, as provided in said sections. The correctness of the conclusion of law is challenged by the assignment of errors. Appellant insists that, upon the facts found, appellee was not entitled to recover the penalty and attorney's fees, under sections 7056, 7057, Burns' Rev. St. 1901 (sections 5206a, 5206b, Horner's Rev. St. 1897). Said sections are as follows:

“Sec. 7056 (1). That every company, corporation or association now existing, or hereafter organized and doing business in this state, shall, in the absence of a written contract to the contrary, be required to make full settlement with, and full payment in money to, its employees, engaged in manual or mechanical labor, for such work and labor done or performed by said employees for such company, corporation or association at least once in every calendar month of the year.

“Sec. 7057 (2). If any company, corporation or association shall neglect to make such payment, such employé may demand the same of said company, corporation or association, or any agent of said company, corporation or association, upon whom summons might be issued in a suit for such wages, and if said company, corporation or association shall neglect to pay the same for thirty days thereafter, said company, corporation or association shall be liable to a penalty of one dollar for each succeeding day, to be collected by such employé in a suit (together with reasonable attorney's fees in said suit) for said wages withheld: provided, that said penalty shall in no instance exceed twice the amount due and withheld.”

These sections, being penal and in derogation of the common law, must be strictly construed; and no one can recover under such a statute unless he, by averment or proof, brings himself clearly within its terms. State v. Railway Co. (this term) 61 N. E. 669;Telegraph Co. v. Harding, 103 Ind. 505, 508, 3 N. E. 172; Same v. Axtell, 69 Ind. 199;Hamilton v. Jones, 125 Ind. 176, 25 N. E. 192;Thornburg v. Strawboard Co., 141 Ind. 443-445, 40 N. E. 1062, 50 Am. St. Rep. 334, and cases cited; McDonald v. Railway Co., 144 Ind. 459, 460, 43 N. E. 447, 32 L. R. A. 309, 55 Am. St. Rep. 185; Railroad Co. v. Keely's Adm'r, 23 Ind. 133; 23 Am. & Eng. Enc. Law, 375-378; End. Interp. St. §§ 340, 341, 471; Black, Interp. Laws, p. 300. In Telegraph Co. v. Harding, supra, at page 508, 103 Ind., and page 174, 3 N. E., this court said: “In construing a penal statute, it must be remembered that the law will intend nothing in favor of the imposition of a penalty until, upon a strict construction, it appears there has been a clear violation of the statutory obligation for which the penalty is imposed.” In Telegraph Co. v. Axtell, supra, at page 202, 69 Ind., this court said: “A court cannot create a penalty by construction, but must avoid it by construction, unless it is brought within the letter and meaning of the act creating it.” It was said by this court in Railroad Co. v. Keely's Adm'r, supra: “As the right to sue is purely a statutory one, and in derogation of common law, the statute must be strictly construed, and the case brought clearly within its provisions, to enable the plaintiff to recover.” Section 7057, supra, gives the penalty on the neglect to comply with the demand of the employé for payment. There is no provision of said section giving a penalty when the demand is made by an assignee of the employé. The failure of the appellant to comply with the demand of appellee as assignee is not an omission for which said section creates or provides a penalty.

It will be observed that sections 7056 and 7057 do not apply to a case where there is a written contract for the payment of the wages of such employés contrary to the provisions of said section 7056, supra. It is essential, therefore, to a...