Goodell v. Pope-Shenon Mining Co.

• Decision Date: 22 December 1922
• Parties: ALBERT R. GOODELL, Respondent, v. POPE-SHENON MINING COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

212 P. 342

36 Idaho 427

ALBERT R. GOODELL, Respondent, v. POPE-SHENON MINING COMPANY, a Corporation, Appellant

Supreme Court of Idaho

December 22, 1922

PLEADING AND PRACTICE-SEVERAL CAUSES OF ACTION UNITED-VERDICT OR FINDINGS SHOULD BE TO EACH CAUSE-WHEN AMOUNT FOUND EXCESSIVE-MUST BE REMITTED OR NEW TRIAL GIVEN-ATTORNEY'S FEES AND PENALTY UNDER C. S., SECS. 7380 AND 7381-WHEN NOT RECOVERABLE.

1. Where a mining foreman has direction of its operations at the mine, and from time to time renders statements to the company's home office in another state for his services and expenses and for the wages of persons he employs, all of which are paid upon demand and receipted for in full by such foreman, and upon a new foreman being employed he continues in the employment of the company for some six weeks, for which service he is paid in full, and then voluntarily quits the employ of the company, he cannot thereafter recover the penalty under C. S., sec. 7381, for the thirty days following his first employment, for the alleged reason that he was not paid for his services while foreman.

2. C S., sec. 7381, must be reasonably construed; it is not the purpose of this statute to penalize an employer for a failure to pay an employee when such employee, after the termination of the employment for which he claims he was not paid, fails to make a proper demand.

3. No recovery can be had for attorney's fees under C. S., sec 7380, unless the amount for which the employee has brought suit is justly due, and he has made a demand for this amount in compliance with the requirements of the statute.

4. Where several causes of action are united in the same complaint, if the cause is tried to a jury it should find upon each cause, or if any one of the causes is tried by the court, it should make a specific finding upon such cause.

5. Where a verdict is rendered for a single amount, based upon a complaint setting up several distinct causes of action, and the amount of such finding shows that the jury must have found for plaintiff upon some of the causes wherein there was no evidence to support such a finding, the case will be remanded, with instruction to grant a new trial unless such excess be remitted.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. F. J. Cowen, District Judge.

Action to recover wages, penalty and attorney's fee, and upon an account. From judgment for plaintiff, defendant appeals. Conditionally affirmed.

Respondent's petition for a rehearing denied, and appellant's petition for a modification of the judgment allowing it costs upon appeal granted.

John H Padgham and J. L. Eberle, for Appellant.

The statute does not contemplate that one who voluntarily quits an employment shall be paid extra wages for thirty days, not does it contemplate that where one ceases to work for another, under an employment, and is paid all that is coming to him, under such employment, he may collect thirty days' wages on account of the employer owing him upon a former and different contract. The statute is in derogation of the common law and must be strictly construed in favor of the employer and against the employee, and when so construed, the awarding of the $ 150 for thirty days' work not performed is contrary to law and to the evidence. (C. S., sec. 7381; Olson v. Idora Hill Mining Co., 28 Idaho 504, 155 P. 291; Reineke v. People, 15 Ill. 241; Independent School Dist. No. 5 v. Collins, 15 Idaho 535, 128 Am. St. 76, 98 P. 857; Ex parte Rickey, 31 Nev. 82, 135 Am. St. 651, 100 P. 134.)

The statute does not award an attorney's fee unless the plaintiff recovers the full amount claimed in his written demand. (C. S., sec. 7380.)

Whitcomb, Cowen & Clark, for Respondent.

Plaintiff was entitled to be allowed a reasonable attorney fee to be charged as costs, for failure and refusal to pay claim of $ 138 alleged to be due under the first two causes of action of complaint. (C. S., sec. 7380.)

Plaintiff was entitled to wages for a period of 30 days after April 8, 1919. (C. S., sec. 7381; Olson v. Idora Hill Mining Co., 28 Idaho 504, 155 P. 291.)

LEE, J. Rice, C. J., and Budge, McCarthy and Dunn, JJ., concur.

OPINION

LEE, J.

This suit is upon five separate causes of action, The first is for services alleged to have been performed by respondent as foreman, at $ 6 per day, in breaking down, sacking and shipping ore from appellant's mine, situate in Lemhi county, and overseeing work in relation thereto, between the 2d and 25th days of February, 1919. The second cause is in quantum meruit for the same service. The third cause is for an attorney's fee, claimed under C. S., sec. 7381, which cause of action was subsequently abandoned, and the attorney's fee of $ 50 claimed therein was taxed as a part of the costs. The fourth cause is for a penalty at $ 5 per day for thirty days, claimed under C. S., sec. 7381, because of appellant's alleged failure to pay for the services performed by respondent during the month of February, at the time respondent ceased to work for appellant. The fifth cause is for an alleged balance due for personal property sold and delivered by respondent to appellant.

The answer denies the material facts upon which each cause of action is founded, and by way of counterclaim seeks to recover on account of an assigned claim for labor performed by one Morley for respondent, and also for a balance in money, received from appellant, which respondent had not expended on its account.

The jury returned a general verdict for $ 374.15, without indicating upon which causes of action this finding was made, but from the amount and also from the special finding that $ 138 was due for the services rendered in February, it is apparent that the verdict is made up of the amount claimed in the first or second causes of action for the services rendered in February as foreman, the $ 150 penalty for failure to pay the same, and $ 156.90 upon the fifth cause of action, less appellant's counterclaim of $ 70.75. Judgment was entered upon this verdict, together with $ 50 attorney's fees taxed as a part of the costs.

Appellant moved for a new trial, on the ground of the insufficiency of the evidence to support the verdict, which motion was denied, and from the judgment and the order overruling the motion for a new trial this appeal is taken.

It appears that respondent had been in the employment of appellant for some time prior to February 2, 1919, at which time the president of the company, whose headquarters were in Salt Lake City, visited the mining property with respondent and directed him to drill one round in the face of Tunnel No. 5, and sack and ship the ore to Salt Lake City for a test run of its value. This respondent proceeded to do, and broke down, sacked and shipped to the smelter about eight tons of ore between the 2d and 25th days of February, at which time appellant directed a Mr....