McGinnis v. Keen

• Decision Date: 29 August 1950
• Citation: 221 P.2d 907,189 Or. 445
• Parties: McGINNIS et al. v. KEEN.
• Court: Oregon Supreme Court

221 P.2d 907

189 Or. 445

McGINNIS et al. v. KEEN.

Supreme Court of Oregon.

August 29, 1950

Charles R. Cater, of La Grande, argued the cause and filed a brief for appellant.

Edward E. Grant, of Enterprise, argued the cause for respondents. With him on the brief were Dixon & Burleigh, of La Grande.

Before LUSK, C. J and BRAND, ROSSMAN, and LATOURETTE, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant from a judgment of the Circuit Court which was entered in an action brought by the plaintiffs to recover wages which they claim had become due them, and a statutory penalty for the alleged failure of the defendant to have paid the wages. Our only source of information about the controversy is the amended complaint, a motion filed thereto by the defendant, the order which overruled the motion and the judgment in favor of the plaintiffs. The amount of the judgment is $402.30, costs, disbursements and an attorney's fee in the sum of $150.00. The motion reads as follows:

'The defendant respectfully requests the Court to make an order striking from the plaintiffs' amended complaint the following portions thereof on the ground that the same are irrelevant redundant and immaterial:

'Paragraphs IV and V and that portion of the prayer thereof referring to attorney's fees and any amount in excess of $231.52 general damages.'

The assignments of error are the following:

'The Circuit Court erred in failing to sustain defendant's motion to strike Paragraphs IV and V of the plaintiffs' amended complaint.'

'The amended complaint is insufficient to sustain the verdict and judgment where the verdict and judgment include an amount as penalty.'

Undoubtedly the appellant's counsel is familiar with the rule that the disposition of motions, such as the one he submitted to the Circuit Court, is largely a matter of discretion, and not reviewable upon appeal unless an abuse of discretion is shown. Cole v. Willow River Company, 60 Or. 594, 117 P. 659, 118 P. 1030; 5 C.J.S., Appeal and Error, § 1587, p. 478; 3 Am.Jur., Appeal and Error, p 526, § 964. We assume that the first assignment or error is intended as ancillary to the second, and not as a separate contention within itself.

Paragraphs I and II of the amended complaint allege:

'Defendant employed plaintiffs to work for him as fallers and buckers * * * and agreed to pay plaintiffs for said services at a rate based on the number of board feet of logs felled and bucked by plaintiffs jointly, to-wit: the sum of $2.50 per thousand board feet.'

'In pursuance of said employment agreement, plaintiffs entered upon the performance of their duties and worked for defendant as fallers and buckers until on or about the 1st day of April, 1948, at which time the work for which plaintiffs were employed was completed.'

Continuing, the paragraph says that from March 1, 1948, to and including April 1, 1948, the plaintiffs felled and bucked 318,530 board feet of logs and thereby earned $796.32.

According to Paragraph III, the plaintiffs, on April 1, 1948, 'completed their employment with said defendant and the wages then earned became immediately due and payable.' The paragraph states that although the plaintiffs endeavored to demand payment of their wages, their efforts failed because the defendant had left the State. Further parts of this paragraph allege that later, when the defendant displayed an interest in meeting his obligation, he refused to pay anything more than the sum of $564.80, which the complaint concedes he paid May 7, 1948.

The following are paragraphs IV and V:

'IV. That for more than thirty days following the completion of the work for which plaintiffs were employed by defendant, the defendant failed and refused to furnish to plaintiffs a statement of scale or quantity of logs produced by them as required by Section 102-605, O.C.L.A. and that for more than thirty days following the completion of said work defendant wilfully failed and refused to pay the wages or compensation due and owing to plaintiffs, although said defendant was financially able to pay such wages; that the employment of plaintiffs by the defendant had terminated by mutual agreement of plaintiffs and defendant because of the completion of the work; that under the terms of Section 102-604, O.C.L.A., as amended by Oregon Laws, 1947, Chapter 193, Section 1, plaintiffs are entitled to wages from the 1st day of April, 1948, when such wages were due and payable, for a period of thirty days, and the sum of $796.32 is due, owing and unpaid from the defendant to the plaintiffs under the terms of said statute, in addition to the sum of $231.52, making a total of $1,027.84, and that said sum is due, owing and unpaid to plaintiffs from defendant.'

'V. That proper demand has been made by plaintiffs upon defendant for the payment of the wages due, owing and unpaid to them; that said wages remain due and unpaid as set forth hereinbefore; that the sum of $150.00 is a reasonable sum to be allowed by the court as attorney's fees in this action for the use and benefit of the plaintiffs.'

The prayer follows: 'Wherefore, plaintiffs demand judgment against defendant in the sum of $1,027.84 with interest thereon at six (6%) per cent per annum from the 1st day of May, 1948, until paid and for the further sum of $150.00, plaintiffs' reasonable attorney's fees * * *.'

Thus, according to the complaint, the plaintiffs earned in the period of March 1, 1948, to April 2, 1948, $796.32 and were paid $564.80 on May 7, 1948. If those figures are correct, a balance of $231.52 remained unpaid when the action was filed. The prayer seeks judgment for that balance, together with a statutory penalty of $796.32, being an amount equal to the wages earned in the thirty days immediately preceding the cessation of the employment.

The applicable parts of § 102-604, O.C.L.A., as amended by Oregon Laws 1947, Chapter 193, are:

'Whenever an employer discharges an employe, or where such employment is terminated by mutual agreement, all wages earned and unpaid at the time of such discharge shall become due and payable immediately; * * *.

'* * * In the event that an employer being financially able to pay shall wilfully fail to pay any wages or compensation of any employe who is discharged or who quits his employment, as in this section provided, then as a penalty for such nonpayment the wages or compensation of such employe shall continue from the due date thereof at the same rate until paid, or until an action therefor shall be commenced; provided, that in no case shall such wages continue for more than thirty days. * * *'

Section 102-605, O.C.L.A., provides: 'Every employer, * * * engaged in the business of logging * * * employing such employee or employees upon a piece work scale or quantity wage basis, shall furnish such employee or employees at least once monthly, a statement of scale or quantity produced by him or them to his or their credit, and shall pay all wages or amounts so earned and due and payable under the law regulating pay days.'

Section 102-606 prescribes a criminal penalty for the violation of the section just mentioned.

In arguing in behalf of his assignments of error, the defendant sets forth nine reasons, which he terms points. He states the first of them in these words: 'No 'rate' is alleged in the amended complaint which would enable Court or jury to compute the amount to which plaintiffs might be entitled. The statute providing for penalty uses words 'at the same rate."

The second of his points follows: 'The 'rate' referred to in the statute, Section 102-604, O.C.L.A., as amended, is a rate based upon a time basis such as a daily, weekly or monthly rate and not a rate based upon a piece-work or quantity basis which cannot be reduced to a time basis.' The defendant argues the two points concurrently.

Section 102-604, O.C.L.A., as amended in 1947, is concerned with wages and compensation that have been earned by employees whose employment ceased in the various ways mentioned in the act. A preceding paragraph of this opinion quotes its material parts. If fixes a day when payment of remuneration must be made. As a spur to the prompt payment of the wages earned by one 'who is discharged or who quits his employment, as in this section provided,' the act provides that the 'wages or compensation of such employe shall continue from the due date thereof at the same rate until paid, * * *,' provided the employer is financially able to pay and wilfully fails to do so. The act grants the additional recovery 'as a penalty for such nonpayment.'

The amended act appears to be concerned with the wages earned by all employees whose severance from their work occurred in any of the ways mentioned in the act. Unless some meaning to the contrary lurks in a word which needs construction, there is nothing in the statute which evinces a purpose to discriminate against the pieceworker. So far as we know, it is as necessary for him to receive his wages promptly as it is for the worker whose wages are calculated upon a time basis.

The compensation of the plaintiffs, it will be recalled, was not computed upon a time basis, such as an hourly, daily or monthly scale, but upon the rate of '$2.50 per thousand board feet' that is, upon a piece or quantity basis. According to Champion v. Hermitage Cotton Mills, 98 S.C. 418, 82 S.E. 672, 673, which was concerned with a penalty statute, 'Wages may be measured by the piece as well as by the time employed. 40 Cyc. 240.' By reverting to § 102-605, O.C.L.A., quoted in a preceding paragraph, it will be seen that employees who are engaged in logging and who are paid upon 'a piecework scale' are entitled to the benefits of 'the law regulating pay days.' Section 102-604, as amended, is...