Missouri Pacific Railroad Company v. Ault

• Decision Date: 17 November 1919
• Docket Number: 216
• Citation: 216 S.W. 3,140 Ark. 572
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. AULT
• Court: Arkansas Supreme Court

216 S.W. 3

140 Ark. 572

MISSOURI PACIFIC RAILROAD COMPANY v. AULT

No. 216

Supreme Court of Arkansas

November 17, 1919

Appeal from Hot Spring Circuit Court; J. C. Ross, Judge; affirmed.

Judgment affirmed.

E. B Kinsworthy and W. R. Donham, for appellant.

1. Appellee was not discharged; he quit of his own accord. A reduction of wages under the proof was not a discharge. 208 S.W. 790.

2. Appellee made no demand as required by statute that his money or a valid check be sent to a station where a regular agent was kept and was not entitled to any penalty. 128 Ark. 312; 87 Ark. 132; 88 Id. 277.

The cause of action should have been dismissed as to the railroad company. 254 F. 880.

D. D Glover and Jabez M. Smith, for appellee.

Appellee was discharged without cause and was entitled to his pay and the penalty awarded. 131 Ark. 379. The court correctly declared the law, and the evidence sustains the judgment, and the judgment should be affirmed for the wages and penalty and there is no error.

OPINION

HUMPHREYS, J.

Appellee brought suit against the Missouri Pacific Railroad Company, before D. M. Noble, a justice of the peace in Fenter township, Hot Spring County, Arkansas, to recover the sum of $ 50 as wages, and a penalty prescribed by Act 210 of the Acts of the Legislature of 1905, amending section 6649 of Kirby's Digest. The act, insofar as it relates to this case, is as follows: "Whenever any railroad company or corporation or any receiver operating any railroad engaged in the business of operating or constructing any railroad or railroad bridge, shall discharge with or without cause or refuse to further employ any servant or employees thereof, the unpaid wages of any such servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of such discharge or refusal to longer employ, any such servant or employee may request of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station where a regular agent is kept, and if the money aforesaid, or a valid check therefor, does not reach such station within seven days from the date it is so requested, then as a penalty for such nonpayment the wages of such servant or employee shall continue from the date of the discharge or refusal to further employ at the same rate until paid."

Default judgment was rendered in favor of appellee in the magistrate's court for $ 50 and $ 2.50 per day as a penalty for nonpayment of the wages from July 9, 1918, until the payment of said sum. An appeal was taken from that judgment to the circuit court in said county, and, on the 20th day of January, 1919, the Missouri Pacific Railroad Company filed an answer, denying the indebtedness or liability for a penalty, the discharge or refusal to continue appellee in its employment, any request or demand by appellee on his foreman or time keeper to send the amount claimed to be due him as wages, or a valid check therefor within seven days to the agent at Malvern, or that appellee applied to said agent, after seven days, for his wages, or a valid check therefor.

On the 29th day of January following, appellee filed a motion to substitute in his place, as defendant, Walker D, Hines, Director General of Railroads. Over the objection of appellant, the court refused to make the substitution, but made the Director General a party defendant. The cause then proceeded to trial and was submitted to a jury upon the pleadings, evidence and instructions of the court. The jury returned the following verdict: "We, the jury, find for the plaintiff in the sum of $ 50 as debt for labor; also $ 2.50 per day as penalty from the 28th day of July, 1918, until the present date. J. M. Caldwell, Foreman." Thereupon, a judgment was rendered against appellants for $ 50 debt, and $ 390 penalty. From that judgment an appeal has been duly prosecuted to this court.

Appellants first insist that the undisputed evidence showed that appellee voluntarily quit the service of appellants and that it was error to render judgment against them for a statutory penalty on the theory of a discharge or refusal to further employ appellee. It is said that because the contract required appellee to work on Sunday, his failure to work in person on the Sabbath day amounted to a breach of his contract. The evidence tended to show that appellee and his employer had agreed that he might substitute, at his own expense, some one else to work on the Sabbath day. Under such an arrangement, a failure to report in person and work on the Sabbath day would not constitute a voluntary cessation of appellee's duties under the contract. It was a question for the jury to say whether or not such an arrangement was made under the contract of employment.

Again it is said that, because appellee refused to accept employment as a porter or baggage man at $ 45 per month, therefore he voluntarily quit the service of said railroad company. The evidence disclosed that in the month of July, 1918, appellee was employed by W. W. Jones, station agent at Malvern as a freight trucker at the rate of twenty-five cents an hour, or $ 2.50 a day for a ten-hour day; that after about ten days, W. W. Jones entered the army and was succeeded by E. B. Williams; that, on or about the 27th day of July, appellee received information that Williams had placed him on the roll as porter, or baggageman, at a salary of $ 45 a month, and intended to pay him only $ 1.50 per day for the entire time he had worked; that he went to see Williams, who turned to the record, under the heading "porter," and told appellee he could not allow him more than $ 45 a month, and that it was up to him to accept or refuse that money; that appellee contended he had not been working as porter and could not support his family on that amount; that Williams responded he...