Gardner v. Atlas Portland Cement Co.

• Decision Date: 06 March 1917
• Docket Number: No. 14504.,14504.
• Citation: 193 S.W. 31
• Parties: GARDNER v. ATLAS PORTLAND CEMENT CO.
• Court: Missouri Court of Appeals

193 S.W. 31

GARDNER v. ATLAS PORTLAND CEMENT CO.

No. 14504.

St. Louis Court of Appeals. Missouri.

March 6, 1917.

Appeal from Circuit Court, Ralls County; Wm. T. Ragland, Judge.

"Not to be officially published."

Action by William O. Gardner against the Atlas Portland Cement Company. Judgment for plaintiff, on appeal from a justice, and defendant appeals. Reversed.

Geo. A. Mahan, A. R. Smith, and Dulany Mahan, all of Hannibal, for appellant. J. W. Hays, of Hannibal, and J. F. Barry, of New London, for respondent.

ALLEN, J.

This is an action instituted before a justice of the peace to recover $25.12 alleged to be due plaintiff for services rendered by him to the defendant company. The statement filed before the justice of the peace alleges that on September 7, 1912, "plaintiff entered the employ of defendant company in the capacity of a watchman at the price and sum of 17 cents an hour"; that defendant, in issuing its "pay checks" to plaintiff for services rendered by him, "did not issue them for enough to pay plaintiff the full amount due him at the above rate," specifying the amounts respectively claimed to be due for the months of September, October, November, and December, 1912, totaling the aforesaid sum of $25.12. It is averred that defendant refused to pay the same to plaintiff upon demand therefor. Plaintiff had judgment by default before the justice of the peace, and on defendant's appeal to the circuit court, and a trial there de novo, before the court and a jury, plaintiff again prevailed, and the case is here on defendant's appeal.

The evidence discloses that plaintiff, an elderly man, was employed by defendant on September 7, 1912, in the capacity of night watchman at a shale mine at which defendant was erecting a plant. Plaintiff applied to defendant's superintendent for employment, and, according to the uncontradicted testimony of the superintendent, stated that he was willing to work for any sum exceeding $1.50 per day. He was engaged by the superintendent as night watchman, and worked in this capacity for about three months. It appears that after the completion of the plant defendant, not desiring to maintain a night watchman longer, gave plaintiff other employment, during the day, in its plant, but that this was not satisfactory to plaintiff, and he quit defendant's employ. During the period in which he was employed as night watchman he regularly received and cashed, without objection or complaint, pay checks issued to him by defendant in payment of his wages, at the rate of $2.04 per day. After leaving defendant's employ he made demand for the extra wages claimed to be due him for services as night watchman, upon the theory that he was entitled to receive pay for 13½ hours per night at 17 cents per hour, whereas he had been paid $2.04 per night, amounting to 17 cents per hour for 12 hours' work.

Plaintiff testified that when he was employed the superintendent told him that "the job would be worth about $2.25 a day," and that nothing was said "about hours." He stated that he worked 13½ hours each night. On cross-examination he said, "I was not told that I was to receive 17 cents an hour for the work." Later in his cross-examination he said he was not employed "on any scale or price"; that defendant's superintendent could not tell him exactly what the wages would be, but said that he would receive about $2.25 per night.

The testimony of the superintendent is that he made no contract to pay plaintiff 17 cents per hour; that he told plaintiff...