Gawthrop v. Missouri Pac. Ry. Co.
| Decision Date | 07 May 1938 |
| Docket Number | 33816. |
| Parties | GAWTHROP v. MISSOURI PAC. RY. CO. et el. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The statute penalizing refusal of employer to pay employee within ten days from termination of service does not apply where the service of an employee is terminated and an honest excuse exists concerning the amount due which results in judgment finding that employer's figures are correct. Gen.St.1935 44-307, 44-308.
Under statute, an employee is required to give written notice and demand for payment of wages before commencing action for wages and penalty for failure of employer to pay wages within 10 days after termination of service. Gen.St. 1935, 44-307 44-308.
1. In an action by an employee for wages due and for penalties under the provisions of G.S.1935, 44-307 and 44-308, it is held, that this statute does not apply where the service of an employee with a company is terminated and there is an honest dispute about the amount due resulting in a judgment that the employer's figures are correct.
2. In an action such as that described in the above paragraph of the syllabus, an employee is required to give written notice and demand for payment before he can bring the action.
Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.
Action for wages and for penalties under Gen. St. 1935, 44-307 44-308, by Floyd Gawthrop against the Missouri Pacific Railway Company, and Guy A. Thompson and another, trustees under Bankruptcy Act § 77, 11 U.S.C.A. § 205 note. From a judgment of the district court in favor of the plaintiff which was entered on appeal from a judgment of the city court of Wichita, the defendants appeal.
Reversed.
Arnold C. Todd and Kurt Riesen, both of Wichita, and W. P. Waggener O. P. May, B. P. Waggener, and Ralph M. Hope, all of Atchison, for appellants.
William Ward, of Wichita, for appellee.
This was an action for wages and for penalties under G.S.1935, 44-307 and 44-308. Judgment was for plaintiff. Defendants appeal.
The action was begun in the city court of Wichita. In his bill of particulars plaintiff claimed $10.92 for wages actually earned and $10 refund of monies under the railroad pension act. The defendant filed answer alleging a general denial and that he was trustee in bankruptcy appointed by the federal court. He offered to confess judgment for $4.60 and costs. The bill of particulars was filed on August 23, 1937, and the trial in the city court was on September 8, 1937. The employment was terminated on August 3, 1934. The defendant offered during the course of the trial to confess judgment for $4.60 and costs. Judgment was rendered in the city court for $4.60 for wages actually earned and $74.62 for penalties.
The penalties were included in the judgment pursuant to the terms of G.S.1935, 44-307 and 44-308. These two sections provide that when an employee leaves the service of a firm or corporation it is unlawful for the company to refuse to pay him within ten days of the termination of the service. The section provides that as a penalty for so refusing to pay an employee within ten days of his leaving the service the company shall continue to pay the employee the wages for which he was working from the date of the discharge at the same rate as if he were still in the service until complete settlement is made.
The matter of the amount of the judgment over and above the $4.60 allowed for actual money earned was simply a matter of calculation. On the appeal to the district court a jury was waived and the case was submitted to the trial court. The...
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...there was an honest dispute between an employer and employee as to the amount due the employee as wages. See Gawthrop v. Missouri Pac. Rly. Co., 147 Kan. 756, 78 P.2d 854 (1938). In Holt v. Frito-Lay, Inc., 217 Kan. 56, 535 P.2d 450 (1975), it was stated if the employee and employer in good......
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