Ferber v. Wisen

• Decision Date: 02 August 1938
• Docket Number: 26988.
• Citation: 82 P.2d 139,195 Wash. 603
• Parties: FERBER et al. v. WISEN.
• Court: Washington Supreme Court

82 P.2d 139

195 Wash. 603

FERBER et al. v. WISEN.

No. 26988.

Supreme Court of Washington

August 2, 1938

Department 2.

Appeal from Superior Court, King County; Roger J. Meakim, Judge.

Action under the Minimum Wage Law by Hilda Ferber and Hannah Halverson against Anna Wisen, for value of services rendered. From a joint judgment for plaintiffs in an insufficient amount, plaintiffs appeal.

Affirmed.

Frank Harrington, of Seattle, for appellants.

Burkheimer & Burkheimer, of Seattle, for respondent.

ROBINSON Justice.

This action is based upon chapter 174, p. 602, Laws of 1913 entitled, 'Minimum Wages For Women,' and Order No. 23 adopted by the industrial welfare commission pursuant thereto. This order became effective on October 4, 1921, and was in effect when the matters and things complained of took place. In the introductory part of the order, the commission defined the term 'Public Housekeeping' as comprising work in hotels, boarding houses, and similar institutions and including work done by waitresses. The order, in so far as material to our present inquiry, provided as follows:

'(1) That no person, firm, association, or corporation shall employ and female over the age of eighteen years in any occupation in the Public Housekeeping Industry throughout the State at a weekly wage rate of less than Fourteen Dollars and Fifty Cents ($14.50) per week of forty-eight hours, or at a daily wage rate of less than Two Dollars and Fifty Cents ($2.50) per day of eight hours, or at any hourly wage rate of less than thirty-five cents ($.35) per hour, such wage rates being the estimate of said Conference of the Minimum wage adequate to supply the necessary cost of living and to maintain such employees in health and comfort. (The interpretation of this paragraph affecting the wage rates shall be that the weekly wage rate shall prevail where the employment extends over a period of one week or more; that the daily wage rate shall prevail where employment is for one or more days of eight hours, and the hourly wage rate shall prevail where employment is for less than eight hours in any one day.

'(2) That no person, firm, association, or corporation shall employ any female over the age of eighteen years in any occupation in the Public Housekeeping Industry throughout the State more than six days in any one week; Provided, however, that when a sufficient emergency exists, such as renders it absolutely impossible to secure efficient substitute help, the Employees in the Public Housekeeping Industry may be employed for a continuous period of not exceeding ten consecutive days, at the expiration of which ten day period they shall be given one day's rest. This emergency privilege shall not preclude any such employee from having at least four days' rest in any Twenty-eight day period.

'* * *

'(9) That when board is furnished 95 cents per day may be deducted; and for a room furnished $2.00 per week may be deducted; that 20 cents may be deducted for breakfast, 30 cents for lunch and 45 cents for dinner; that in every case there shall be a definite agreement as to whether board and room shall or shall not be furnished; that otherwise the straight wage scale shall prevail.'

In April, 1937, the appellants, Hilda Ferber and Hannah Halverson, brought this action against the respondent, Anna Wisen, operator of the Alhambra hotel, in Seattle, upon the following allegations:

'That the plaintiffs entered the employment of the defendant on June 20th, 1934 and worked continuously seven (7) days a week until March 1, 1936, as waitresses for the defendant; that the plaintiffs were paid at the rate of Twenty Dollars ($20.00) a month, except during the summer months of July and August during 1934 and 1935; that the plaintiffs were paid at the rate of Fifteen Dollars ($15.00) a month for each of said summer months during both years; that the plaintiffs were paid at the rate of Twenty Dollars ($20.00) a month for all the remaining part of the period aforesaid; that the plaintiffs have each received during the period aforesaid as their only compensation, the sum of Three Hundred Eighty Dollars ($380.00).

'That the laws of the State of Washington provide that women employed as waitresses during the period that the plaintiffs worked for the defendant, shall receive as a minimum wage the sum of Fourteen Dollars and Fifty Cents ($14.50) a week; that during said period of employment of the plaintiffs by defendant the plaintiffs each earned for a period of Eighty-five (85) weeks, the sum of Twelve Hundred Thirty-Two Dollars and Fifty Cents ($1232.50). That by reason of the performance of services by the plaintiffs for the defendant and by reason of the failure of the defendant to pay the plaintiffs more than the sum of Three Hundred Eighty Dollars ($380.00), the defendant is now justly indebted to each of the plaintiffs in the sum of Eight Hundred and Fifty Two Dollars and Fifty Cents ($852.50); that there is now justly due and owing by the defendant to these plaintiffs severally, the sum of Eight Hundred Fifty-Two Dollars and Fifty Cents ($852.50), no part of which has been paid.'

Each of the plaintiffs prayed for judgment for $852.50, with interest, costs, and attorney's fees, for the allowance of which the statute makes specific provision.

The amended answer set up (1) that the employment did not begin on June 20, 1934, but on August 22 of that year, and alleged (2) that it involved the service of but two meals per day, breakfast and dinner, which, less time off for plaintiffs' meals, included less than five hours of actual work per day; (3) that the plaintiffs and defendant agreed that each of the plaintiffs should receive as compensation twenty dollars per month, plus board, room, laundry, and telephone service of the agreed value of fifty dollars per month, except that during the summer months the cash consideration should be fifteen dollars per month instead of twenty.

Defendant also sets up that the statute was unconstitutional; that it referred only to full time employment, and other legal defenses not now material.

The case was tried to the court without a jury. We have Before us, in addition to the formal findings and conclusions, a memorandum opinion by the trial judge. He found the act constitutional; that it applied to the plaintiffs' employment, and that, although none of the parties knew of the existence of Order No. 23, it became a part of their contract. He, however, ruled against the plaintiffs on the principal issues of fact, finding that the employment did not begin until August 20, 1934, and that the agreed compensation was twenty dollars per month, plus board, lodging, and use of the telephone and laundry. It was admitted that the plaintiffs did not use the rooms. The plaintiffs testified that the rooms were below the ground level and too damp to be livable. There was testimony that the rooms were entirely above ground, and the court found against the plaintiffs on that issue.

The court did not give effect to the contention of the defendant that the agreed value of the board, room, and use of the telephone and laundry was fifty dollars per month, but applied the credits allowable as to board and room prescribed by subd. 9 of Order No. 23, and directed that the plaintiffs should have judgment for an amount to be determined by multiplying the number of weeks from ...