Evans v. Hartmann

• Decision Date: 25 September 1940
• Docket Number: 27929.
• Citation: 105 P.2d 717,5 Wn.2d 434
• Parties: EVANS et al. v. HARTMANN et ux.
• Court: Washington Supreme Court

105 P.2d 717

5 Wn.2d 434

EVANS et al. v. HARTMANN et ux.

No. 27929.

Supreme Court of Washington

September 25, 1940

Department 2.

Action by Dorothy Evans and husband against Rudolf Hartmann and wife, to recover wages claimed to have been earned by the named plaintiff as an apartment house employee, under the minimum wage law for women, Rem.Rev.Stat. §§ 7623 to 7641 and an order of the Industrial Welfare Committee of the Department of Labor and Industries. From judgment for plaintiffs for $454.52, plus $100 attorney's fee and costs, and for defendants for $206.54 as a counterclaim defendants appeal, and plaintiffs cross-appeal.

Judgment affirmed in part, and reversed in part.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, judge.

Clarence J. Coleman, of Everett, for appellants.

C. W Jordan, of Everett, for respondents and cross-appellants.

JEFFERS Justice.

This action was instituted by Dorothy Evans and Orville Evans, her husband, against Rudolf Hartmann and wife, to recover wages from January 1, 1938, to March 8, 1939, claimed to have been earned by Dorothy Evans, as an apartment house employee, under the provisions of the minimum wage law for women, Rem.Rev.Stat. §§ 7623 to 7641, both inclusive, particularly § 7638, which provides: 'If any employee shall receive less than the legal minimum wage, except as hereinBefore provided in section 7632, said employee shall be entitled to recover in a civil action the full amount of the legal minimum wage as herein provided for, together with costs and attorney's fees to be fixed by the court, notwithstanding any agreement to work for such lesser wage. In such action, however, the employer shall be credited with any wages which have been paid upon account'; and order No. 36 of the industrial welfare committee of the department of labor and industries.

Defendants denied generally the allegations of the complaint, and alleged affirmatively that plaintiffs, at all times during the employment of Mrs. Evans, occupied an apartment of defendants, for which the agreed and reasonable rental value was thirty-five dollars per month, and a garage which was of the agreed and reasonable rental value of $2.50 per month. Defendants prayed that, in the event of a recovery by plaintiffs herein, they be allowed to offset against any judgment received by plaintiffs the agreed and reasonable rental value of the apartment and garage.

The cause was tried to the court on July 5, 1939. After a motion for new trial had been made by defendants, and denied, the court made and entered findings of fact, conclusions of law, and judgment. The court found:

'That the defendants now are and at all times hereinafter mentioned were the owners and proprietors of the Cascadian hotel in the city of Everett, Washington, and plaintiff, Dorothy Evans, is a female over eighteen years of age and was employed in said apartment house as superintendent of maids' work, had the duty of collecting rents, renting apartments, taking care of complaints of tenants, and general office work in connection with the operation of said apartment house.

'That the minimum wage set by the industrial welfare committee of the state of Washington in pursuance of powers conferred upon said committee by the laws of the state of Washington, effective December 7, 1937, established a minimum wage for women for the work performed by plaintiff, Dorothy Evans, at $16.00 per week and said order also provided that rental charges for apartments occupied by said employee shall not exceed one-third of the minimum wage.

'That from January 1, 1938, to March 8th, 1939, plaintiff Dorothy Evans was employed by said defendants at said apartment house for a period of sixty-two weeks, out of which period said Dorothy Evans had a three weeks vacation making a total employment period of fifty-nine weeks. During all of said time plaintiff Dorothy Evans worked at least forty-eight hours per week, and said employment was continuous. That under the minimum wage order heretofore mentioned there became due and owing plaintiff Dorothy Evans, the sum of Nine Hundred Forty-four and no/100 ($944.00) Dollars.'

The court further found that during this period, Dorothy Evans was paid the sum of $159.02, and that defendants were entitled to a credit of $5.33 a week for sixty-two weeks, as rent for the apartment occupied by plaintiffs, or $330.46; that after deducting the sums of $159.02 and $330.46, there was due and owing to plaintiff Dorothy Evans the sum of $454.52.

The court further found that plaintiffs, as husband and wife and as a marital community, occupied and used the apartment referred to, and that the reasonable rental for the occupancy of this apartment was the sum of forty dollars per month for a period of six months, and thirty-six dollars per month for a period of eight months and eight days, or a total sum of $537, less the sum of $330.46, leaving a balance of $206.54 due defendants from plaintiffs on account of the reasonable rental of such apartment.

Judgment was entered on the findings in favor of plaintiffs for $454.52, plus $100 attorney's fee and costs, and as a counter-claim, defendants were given judgment against plaintiff Orville Evans and the community composed of plaintiffs, for $206.54.

Defendants have appealed from that part of the judgment adverse to them, and plaintiffs have cross-appealed from that part of the judgment adverse to them. Plaintiffs will hereinafter be referred to as respondents, and defendants as appellants.

Appellants make the following assignments of error: (1) The court erred in making and entering findings that Mrs. Evans's employment came within the purview of the minimum wage act; (2) in entering judgment in favor of respondents for alleged underpay; (3) in overruling appellants' motion for a new trial. Respondents assign error on the allowance by the court of a claim against the community for rental of the apartment in the sum of $206.54.

It should be kept in mind that in considering the testimony, the case having been tried to the court, we are bound to accept the findings as verities, unless from the record it appears that they are contrary to the clear preponderance of the evidence ( Warner v. Keebler, 200 Wash. 608, 94 P.2d 175), and where the testimony is in conflict, the findings of the trial court will not be distrubed, unless we are satisfied that the evidence preponderates against them ( Gensman v. West Coast Power Co., Wash., 101 P.2d 316).

Respondent Dorothy Evans was a married woman, over the age of eighteen years, and was first employed at the Cascadian apartments by the First National Bank, the then owner, as a switchboard operator, at fifty dollars per month. At that time, respondents did not live in the apartment house. Appellants purchased the apartment house the latter part of April, or the first of May, and Mrs. Evans continued to work on the switchboard until about June 10, 1937, when the switchboard was discontinued.

It appears from the testimony of respondents that about June 1, 1937, Mr. Johnson, who was the agent of appellants and manager of the Cascadian, asked Mrs. Evans to come and live in the apartment house, agreeing to pay her forty-five dollars per month, and in addition to furnish respondents an apartment then renting for thirty-five dollars per month. Under this arrangement, Mrs. Evans was to work in the office from one P. M. to nine P. M. each day, except Sunday. Respondents testified that Mr. Evans had nothing to do with the making of this agreement, and that there was no understanding that Mr. Evans was to do any work in or about the apartment house as part of the consideration for the agreement, but that the forty-five dollars per month and the use of the apartment were compensation for the services to be rendered by Mrs. Evans. On the other hand, Mr. Johnson testified that it was a family arrangement, and that it was agreed that he would pay Mrs. Evans forty-five dollars and furnish respondents an apartment, and that in addition to Mrs. Evans' services, Mr. Evans was to assist in the janitor work two nights a week. Respondents denied that any such agreement was made.

Under this agreement, Mrs. Evans superintended the maids' work, did some book work, such as typing reports made by Mr. Johnson, rented apartments, looked after the laundry of tenants, and took care of any complaints which might be made, but was required to do no work such as is usually done by maids. While on duty, Mrs. Evans was required to put in the time in the office. It appears that Mr. Evans did assist the janitor, although he testified this was not done because of any understanding with Mr. Johnson, but as an accommodation to Mr. Bender, the janitor, and also for the reason that Mr. Evans wanted to become familiar with the work, so that if a vacancy should occur, he would be in a position to fill it.

Mrs. Evans received a check each month for forty-five dollars, until January 1, 1938, and nothing was paid Mr. Evans for any services performed by him. Respondents testified that no different arrangement was made with Mr. Johnson relative to the employment of Mrs. Evans, or the compensation she was to receive after January 1, 1938, than had theretofore existed, although on January 1, 1938, Mr. Evans went to work for appellants as janitor as a full time employee, at union wages, and continued in such employment until March 8, 1939. Mr. Evans at all times received a check for his wages, and no deductions were made for any rent.

A Mrs Bender was also employed by appellants in the apartments, and had been prior to January 1, 1938. Respondents testified that, beginning January 1, 1938, it was agreed that Mrs. Evans would work the morning...