Keith v. Kottas

• Citation: 172 P.2d 306,119 Mont. 98
• Decision Date: 28 June 1946
• Docket Number: 8643.
• Parties: KEITH v. KOTTAS (two cases).
• Court: United States State Supreme Court of Montana

172 P.2d 306

119 Mont. 98

KEITH v. KOTTAS (two cases).

No. 8643.

Supreme Court of Montana

June 28, 1946

Rehearing Denied Sept. 19, 1946.

Appeal from District Court, First Judicial District, Lewis & Clark County; George W. Padbury, Jr., Judge.

Actions by J. C. Keith against Leo J. Kottas, administrator with will annexed of the estate of Howard Orville Fox, deceased, to recover for overtime work allegedly performed by claimant for decedent, which actions were consolidated for trial. From judgments on verdicts for plaintiff, defendant appeals.

Reversed and remanded with directions.

Sherman W. Smith, of Helena, for respondent.

ANGSTMAN Justice.

Defendant has appealed from judgments rendered against him in two actions which were consolidated for trial.

The actions were brought to recover for services rendered as manager of the Capital Cigar Store in Helena and as bartender. In one action recovery is sought for such services from August 9, 1942, until September 23, 1943, which were alleged to have been performed by plaintiff for Howard Orville Fox. In the other, recovery is sought for such services from September 23, 1943, the date of the death of Howard Orville Fox, until January 28, 1944, and which were alleged to have been performed at the implied instance and request and with the consent and permission of the defendant as administrator with the will annexed and the relatives of Howard Orville Fox.

In both actions plaintiff alleges the presentation to the administrator of a claim against the estate and his failure to act thereon. The claim in each case is for 'overtime work done by Claimant * * * in an average of five (5) hours per day overtime work * * * at a rate of $1.00 per hour, for such overtime work.' In each complaint it is alleged that plaintiff was paid for a regular eight hour per day shift each day throughout the period involved. Overtime pay of $1 per hour is alleged to be the reasonable value of such overtime work.

In the one case judgment was sought for $233 and in the other for $2,450. The jury returned a verdict for plaintiff in each action for the amount demanded. The appeal is from judgments entered on the verdicts.

The determinative question presented by the appeal is whether the court erred in denying defendant's motions for non-suit and directed verdict.

These motions were based, among other grounds, upon the proposition that before a person can recover for overtime work and services he must show an express contract to pay therefor where, as here, the overtime work was sim ilar in character to the services for which he was paid the regular daily wages. The evidence shows that plaintiff's work during the period claimed as overtime was similar to the work performed on the regular shift. He paid himself for his work by taking the money from the till. Being the manager, he could come and go as he pleased. Plaintiff admitted that there was no agreement between him and Fox for overtime pay. He was to receive according to his testimony $9 per day to live on. No demand was ever made upon Mr. Fox during his lifetime for overtime pay.

Under these circumstances it was error to deny defendant's motion for non-suit and directed verdict. In Doane v Marquisee, 63 Mont. 166, 206 P. 426, 427, this court declared the applicable rule as follows: 'The rules of law which govern a case of this character are well settled. Whenever the extra work performed is of a character different from that contemplated by the original contract of employment, its performance by the employee and acceptance by the employer will raise an implication that extra compensation was intended therefor. Sowash v Emerson, 32 Cal.App. 13, 161 P. 1018. On the contrary all services rendered by the employee during his employment which are similar in character to his regular duties are presumed to be compensated for by the stipulated wage or salary, and to overcome this presumption the employee must discharge the burden of proving the existence of an express contract by the terms of which extra compensation was to be made for the extra services rendered. Jerome v. Wood, 39 Colo. 197, 88 P. 1067, 12 Ann.Cas. 662, and note; United States v. Martin, 94 U.S. 400, 24 L.Ed. 128; 18 R.C.L. 534.'

To the same general effect are Robinette v. Hubbard Coal Min. Co., 88 W.Va. 514, 107 S.E. 285, 25 A.L.R. 212; Leahy v. Cheney, 90 Conn. 611, 98 A. 132, L.R.A. 1917D, 809; Walker v. Dixie Frocks, 146 Kan. 812, 73 P.2d 1009; Sheets v. Eales, 135 Kan. 627, 11 P.2d 1020 and Hurt v. Edgell, 147 Kan. 234, 75 P.2d 834. But plaintiff contends that the foregoing cases do not apply here.

There was evidence that when plaintiff went to work for Fox he did so with the understanding that he was a partner in the business and that he was to share in the profits as a partner, and that he rendered the services for overtime on that supposition and that since he is unable to prove the partnership a quasi-contractual...