Hurt v. Edgell

• Decision Date: 29 January 1938
• Docket Number: 33771.
• Parties: HURT v. EDGELL et al.
• Court: Kansas Supreme Court

75 P.2d 834

147 Kan. 234

HURT v. EDGELL et al.

No. 33771.

Supreme Court of Kansas

January 29, 1938

Syllabus by the Court.

A laborer who is employed as a night watchman on a public improvement by a contractor obligated to pay specified minimum wages approved by the Public Works Administration and who for six months accepts without protest his regular weekly wages as a watchman, though allegedly actually working as a pumper, waives any right to recover additional pay based on pumpers' wages.

In the statute penalizing the nonpayment of wages within a specified time after termination of the employment, the requirement that the employee give written notice of the place for payment is reasonable, and failure to give such notice bars recovery of the statutory penalty. Gen.St.1935, 44-307 44-308.

1. There is a presumption in law that all services rendered by an employee during the period for which he is employed, of a nature similar to those required in the course of his regular duties, are compensated for under the stipulated agreement.

2. Where an employee, as a night watchman, voluntarily continues for a considerable time to perform the work as a pumper receiving the agreed compensation as a night watchman at stated periods, and fails to insist on a definite understanding as to additional remuneration, he will be deemed to have waived any right to extra compensation when claimed after discharge.

3. A discharged employee is entitled to the statutory penalty given in G.S.1935, 44-307, 44-308, only when he gives written notice and demand for payment which is refused.

Appeal from District Court, Montgomery County; Joseph W. Holdren Judge.

Action by H. E. Hurt against W. F. Edgell and another, a copartnership doing business under the firm name and style of W. F. Edgell & Son, and another, for wages and the statutory penalty for nonpayment thereof. A demurrer to the petition was overruled, and defendants appeal.

Reversed.

ALLEN, J., dissenting.

In the statute penalizing the nonpayment of wages within a specified time after termination of the employment, the requirement that the employee give written notice of the place for payment is reasonable, and failure to give such notice bars recovery of the statutory penalty. Gen.St.1935, 44-307, 44-308.

Aubrey Neale, of Coffeyville, for appellants.

A. R. Lamb and Clement A. Reed, both of Coffeyville, for appellee.

ALLEN Justice.

This is an action by a laborer against a contractor and his bondsmen for wages and for the penalty provided for in G.S.1935, 44-308. The amended petition was attacked by a motion to make more definite and certain and to separately state and number the causes of action. This motion was overruled in part and sustained in part. The defendant then lodged a demurrer to plaintiff's petition. This appeal is from the order of the trial court overruling the demurrer.

The plaintiff for his first cause of action alleged:

"That he is a resident of and his true and correct postoffice address is 809 W. Tenth Street, Coffeyville, Kansas; that the defendants, W. F. Edgell and H. L. Edgell are a co-partnership doing business under the firm name and style of W. F. Edgell and Son; that the United States Fidelity and Guaranty Company of Baltimore, Maryland, is a corporation, duly authorized to transact business in the State of Kansas and is engaged in the business of acting as surety for hire.

"That prior to the 21st day of April, 1936, the City of Coffeyville contemplated the construction of a sewage pump station and sewage treatment plant and for the purpose of securing bids for the construction of the same had plans, specifications, and instructions to bidders prepared and distributed to contractors including the defendants, W. F. Edgell and Son for the purpose of having said contractors submit bids for the construction of the same; that for the purpose of setting a minimum wage scale and for the purpose of requiring the contractor constructing said plant to pay the minimum wages as therein set out the plans, specifications and instructions to bidders contained the following:

"'Schedule of Minimum Hourly Wage Rates'

"The following schedule of minimum hourly wage rates has been adopted by the

City of Coffeyville for the work included in this contract, and the schedule has been approved by the Acting State Director of the Public Works Administration. The Contractor shall pay not less than the wages set out in the schedule below:

Unskilled Labor .50

Skilled Labor 1.20

Pump .60

Watchman up to 27 hrs. per week .50, $13.50 per week from 27 hrs. up to

40 hrs.

"That the defendants, W. F. Edgell and Son submitted a proposal to the City of Coffeyville, wherein said defendants agreed in writing, 'To pay the schedule of wages as set out in the instructions to bidders.' That the proposal of the defendants, W. F. Edgell and Son, to construct said plant for the sum of One Hundred Twenty-eight Thousand Three Hundred Forty ($128,340.00) Dollars was accepted by the City of Coffeyville and on the 21st day of April, 1936, the City of Coffeyville and W. F. Edgell and Son entered into a written contract which contract contained the following provisions: 'The scale of minimum wages as set out in instructions to bidders shall be observed under this contract.' That immediately thereafter the defendants, W. F. Edgell and Son, commenced the construction of said plant under said contract.

"That plaintiff attaches hereto and makes a part of this petition as Exhibit 'A,' extracts from the information and instructions to bidders, proposal, general contract and stipulations and construction regulations, under which said plant was constructed by the defendants, W. F. Edgell and Son.

"That on the 13th day of July, 1936, the plaintiff was employed by H. L. Edgell as a night watchman at a wage of Eighteen Dollars ($18.00) per week for forty (40) hours labor each week; that while the plaintiff was designated as a watchman and was carried on the books of the defendants, W. F. Edgell and Son, as a night watchman, he was during all of the time he was in the employ of the defendants, W. F. Edgell and Son, required to and did perform the duties of a pumper in that he was required to service and operate the pumps that were used by the defendants, W. F. Edgell and Son, in constructing the said plant; that plaintiff worked for said defendants, W. F. Edgell and Son, from the 13th day of July, 1936, to January 16, 1937, on which last mentioned date he was discharged by the defendants, W. F. Edgell and Son, two thousand two hundred and sixty eight (2268) hours and fifty-five (55) minutes, as shown by the itemized statement hereto attached and marked Exhibit 'B' and made a part hereof, for which services plaintiff was entitled to receive pay at a rate of sixty (60) cents per hour as a pumper or One Thousand Three Hundred Sixty-one Dollars and Thirty-five cents ($1,361.35) all as set out in the written contract between the defendants, W. F. Edgell and Son, and the City of Coffeyville; that the defendants, W. F. Edgell and Son, paid to the plaintiff the sum of only Four Hundred eighty-one Dollars and Fifty Cents ($481.50) leaving a balance due plaintiff of Eight Hundred Seventy-nine Dollars and Eighty-five cents ($879.85) which sum is long past due and wholly unpaid.

"Plaintiff alleges that the contract entered into between the defendants, W. F. Edgell and Son, and the City of Coffeyville, wherein the defendants, W. F. Edgell and Son, agreed to pay sixty (60) cents per hour for pumpers was made for the benefit of this plaintiff and other laborers working for said defendants in the construction of said plant; that when plaintiff was required by said defendants, W. F. Edgell and Son, to perform the duties of a pumper that he was and is entitled to the wage set out in said contract notwithstanding the fact that the said defendants, carried him on the books as a night watchman.

"Plaintiff further alleges that on the 2nd day of June, 1936, the defendants, W. F. Edgell and Son, as principal and The United States Fidelity and Guaranty Company of Baltimore as surety executed and delivered to the Clerk of the District Court of Montgomery County, Kansas, a statutory bond as provided by the laws of the State of Kansas for the purpose of providing for the payment of all claims which might be the basis of liens upon the plant being constructed by said defendants, W. F. Edgell and Son; a true and correct copy of said bond is hereto attached, marked Exhibit 'C' and made a part hereof. That the terms of said bond have been broken in that the defendant, W. F. Edgell and Son, has failed, neglected and refused to pay to plaintiff the wages due him as above set out and by reason thereof the defendant, The United States Fidelity and Guaranty Company of Baltimore, Maryland, is indebted to the plaintiff in the sum of Eight Hundred Seventy-nine Dollars and Eighty-five cents ($879.85), together with interest thereon at six (6) percent per annum as set out in the prayer of this petition."

The second count alleged that plaintiff was discharged by the defendant contractors; that his wages were not paid; that plaintiff is entitled to recover wages at the "same rate as if he was still in defendant's service for a period of sixty (60) days as a penalty as provided by Section 44-308 R. S.1935."

Did the petition state a cause of action?

In Sheets v. Eales, 135 Kan. 627, 11 P.2d 1020, 1022 it was stated there is a presumption of law that all services rendered by an employee during the period for which he is employed, of a nature similar to those required of him in the course of his regular duties, are paid for by his salary, and to overcome this presumption he must show an express agreement for...