Larsen v. Rice

• Decision Date: 03 April 1918
• Docket Number: 14221.
• Citation: 100 Wash. 642,171 P. 1037
• Court: Washington Supreme Court
• Parties: LARSEN v. RICE.

171 P. 1037

100 Wash. 642

LARSEN v. RICE.

No. 14221.

Supreme Court of Washington

April 3, 1918

Department 1. Appeal from Superior Court, Lewis County; W. A. Reynolds Judge.

Action by Lillie Larsen against J. D. Rice. Judgment for plaintiff and defendant appeals. Affirmed.

Parker J., dissenting.

H. E Donohoe and Forney & Ponder, all of Chehalis, for appellant.

Floyd M. Hancock and Gus L. Thacker, both of Chehalis, for respondent.

FULLERTON J.

At its biennial session of 1913 the Legislature of the state of Washington passed an act relating to the employment of women and minors. Section 2 of the act makes it unlawful to employ women or minors in any industry or occupation under conditions detrimental to their health or morals, or to employ women in any industry at wages which are not adequate for their maintenance. Section 3 creates a commission to be known as the Industrial Welfare Commission, and empowers it to establish conditions of labor such as shall not be detrimental to health and morals, and to fix reasonable standards of wages which shall be sufficient for the decent maintenance of women. Section 7 provides that every employer of women and minors shall keep a record of the names of such persons employed, and shall on request permit the commission or any of its duly authorized representatives to inspect such record. Sections 9, 10, and 11 empower the commission, through the instrumentality of an advisory conference, to investigate the conditions of labor in any occupation, trade, or industry in which women and minors are employed, together with the wages paid such employés, and to establish by an obligatory order standard conditions for labor therein, and a minimum wage to be paid for such labor. Section 17 declares it to be a misdemeanor for any person to employ a woman or minor for a less wage or under conditions prohibited by the order. Sections 17 1/2, 18, and 19 read as follows: 'Sec. 17 1/2. Any worker or the parent or guardian of any minor to whom this act applies may complain to the commission that the wages paid to the workers are less than the minimum rate and the commission shall investigate the same and proceed under this act in behalf of the worker.

'Sec. 18. If any employé shall receive less than the legal minimum wage, except as hereinbefore provided in section 13, said employé shall be entitled to recover in a civil action the full amount of the legal minimum wage as herein provided for, together with costs and attorney's fees to be fixed by the court, notwithstanding any agreement to work for such lesser wage. In such action, however, the employer shall be credited with any wages which have been paid upon account.

'Sec. 19. All questions of fact arising under this act shall be determined by the commission and there shall be no appeal from its decision upon said question of fact. Either employer or employé shall have the right of appeal to the superior court on questions of law.'

Acting under and in pursuance of the statute, the Industrial Welfare Commission appointed in pursuance thereof, after due investigation in the manner provided in the act, entered an obligatory order under the date of December 21, 1914, affecting office employment. The part of the order material here reads as follows:

'(1) No person, firm, association or corporation shall employ any female over the age of eighteen years as a stenographer, bookkeeper, typist, billing clerk, filing clerk, cashier, checker, invoicer, comptometer operator, or in any clerical work of any kind in any establishment whatsoever, in which a minimum wage rate applicable to such employé has not heretofore been established as provided by law, at a weekly wage rate of less than ten dollars ($10.00), any lesser wage rate being hereby declared inadequate as to such employés to supply the necessary cost of living and maintain them in health.

'(2) Not less than one hour shall be allowed for noonday luncheon to any female employé specified in paragraph (1) hereof, such requirement being demanded for the health of such employés.

'This order shall become effective sixty (60) days from the date hereof.'

Subsequent to the time the order became effective the appellant in this action employed the respondent as a ticket seller in a moving picture house conducted by him at Chehalis. The respondent served in that capacity, as found by the trial court, for a period of 56 weeks, working 39 hours per week, being 'absent at different times for a total of seven (7) days.' The contract wage was $3 per week, and this sum was paid her in full.

In July, 1916, the respondent began the present action to recover the difference between the wage rate paid and the sum she conceived herself entitled to under the statute and the obligatory order of the Industrial Welfare Commission made in pursuance thereof. In her complaint she demanded judgment based on a flat rate of $10 per week for the number of weeks she was employed, but at the trial conceded through her counsel that she was entitled to recover only on the basis of $10 per week for a week of 48 hours. The trial court allowed a recovery on the latter basis, entering judgment in favor of the respondent for the sum of $278.87.

In his answer to the respondent's complaint the appellant interposed general denials, and set up three affirmative defenses. The first of these affirmative defenses suggests the question whether the respondent's employment falls within or is subject to the obligatory order entered by the Industrial Welfare Commission. In the second defense a settlement of the controversy between the respondent and the appellant was set forth. The third raises the question of the constitutionality of the act. A demurrer was interposed to the several defenses and overruled as to the first two, but sustained as to the last. At the trial the court determined from the evidence that the respondent's employment was within the obligatory order of the commission. It was held, however, that the facts set forth as constituting a settlement, although further amplified by a trial amendment, did not constitute a defense, and evidence offered to substantiate the plea was rejected.

In this court the appellant assigns error upon the several rulings of the trial court. These we will notice in turn, although not in the order in which they are presented in the brief.

The first question is the constitutionality of the act. On this question we do not feel disposed to enter into an extended discussion. The state of Oregon has a law upon its statute books almost the exact counterpart of our own, and its constitutionality was sustained by the unanimous decision of the highest court of that state sitting en banc, against attacks based upon the several grounds urged by the appellants here. Stettler v. O'Hara, 69 Or. 519 139 P. 743, L. R. A. 1917C, 944, Ann. Cas. 1916A, 217; Simpson v. O'Hara, 70 Or. 261, 141 P. 158. These cases were taken, by writ of error on the federal question involved, to the United States Supreme Court, and were there affirmed, after a reargument, although by an equally divided court, Mr. Justice Brandeis taking no part in the consideration and decision of the cases. Stettler v. O'Hara and Simpson v. O'Hara, 243 U.S. 629, 37 S.Ct. 475, 61 L.Ed. 937. The...