Palmer v. Stockberger

• Decision Date: 30 October 1963
• Docket Number: No. 2,No. 19852,19852,2
• Parties: Charles PALMER, Appellant, v. Kenneth STOCKBERGER and William Hepler, Appellees
• Court: Indiana Appellate Court

Page 384

193 N.E.2d 384

135 Ind.App. 263

Charles PALMER, Appellant, v. Kenneth STOCKBERGER and William Hepler, Appellees.

No. 19852.

Appellate Court of Indiana, Division No. 2.

Oct. 30, 1963.

Kizer & Neu, Plymouth, for appellant.

Stevens & Wampler, Donald K. Travis, Plymouth, for appellees.

HUNTER, Judge.

This is an appeal from a judgment on a suit for payment of wages brought by the appellee Kenneth Stockberger against the appellant Charles Palmer and appellee William Hepler pursuant to the provisions of §§ 40-101 and 40-102, Burns' 1952 Replacement. Included therein was a claim for legitimate expenses incurred as a result of his employment. The issues were formed by the plaintiff's (appellee Stockberger) complaint and the defendants' (appellant Palmer and appellee Hepler) answers in denial and affirmance, respectively.

The cause was tried to the court without the intervention of a jury resulting in a finding and judgment for the appellee Stockberger against the appellant Palmer. There was no finding nor judgment in respect to appellee Hepler. The finding and judgment of the court pursuant to the pertinent sections of the statute were as follows:

'November 13, 1961--The court, having had this matter under advisement, now finds for the plaintiff, Kenneth Stockberger, and against the defendant, Charles Palmer, in the sum of $1097.00, including unpaid wages $351.50, unpaid expenses $150.00, liquidated damages $351.50, and attorney fees $244.00.

'IT IS THEREFORE CONSIDERED AND ADJUDGED by the court that the plaintiff have and recover of and from the defendant, Charles Palmer, the sum of $1097.00, together with the costs of this action taxed at $_____.'

The appellant assigns as error that the trial court erred in overruling his motion for a new trial. The appellant's motion for a new trial presents three specifications of error, they are:

'(1) The decision of the trial court is not sustained by sufficient evidence.

'(2) The decision of the trial court is contrary to law.

'(3) The trial court erred in excluding a certain exhibit tendered by defendant, (appellant here).'

The pertinent portions of §§ 40-101 and 40-102, Burns' 1952 Replacement, supra, are set forth respectively, as follows:

'Every person, * * * whatsoever doing business in this state shall pay each employee * * * at least twice each month, if requested, between the first and tenth * * *.' (our emphasis)

'Every such person, * * * who shall fail to make payment of wages to any such employee, as provided in section one (§ 40-101) * * * shall, as liquidated damages for such failure, pay to such employee for each day that the amount due to him remains unpaid ten (10) per cent of the amount due to him in addition thereto, not exceeding double the amount of wages due, * * * the court shall tax and assess as costs in said case a reasonable fee for the plaintiff's attorney or attorneys.'

It will be readily noted from an examination of the court's findings and judgment that an award was made for punitive damages and attorney fees.

The alleged error of law set forth in specification #3 of the motion for a new trial is deemed to be waived by the appellant by not presenting a cogent argument or any citation of authorities as required by Supreme Court Rules 2-17(e) and 2-17(f). Wright v. State (1958), 237 Ind. 593, 147 N.E.2d 551.

Reviewing and accepting the evidence most favorable to the appellee Stockberger we find the record indicates such facts to be as follows: on January 9, 1957 the appellant and the appellee entered into an employment agreement under which the appellee was to perform concrete work and cement block laying at a job site in Eaton Rapids, Michigan for which the appellant agreed to pay the appellee Stockberger the sum of $3.00 per hour plus legitimate expenses; that the appellee's legitimate and reasonable expenses were approximately $150.00; that the appellee worked a total of 292 1/2 hours on the job from January 10, 1957 to and including February 22, 1957; that the appellee Stockberger from time to time received payments from the appellant Palmer as follows: on January 19--$172.50, January 26--$50.00, February 2--$70.00, February 9--$70.00, February 16--$70.00, February 25--$50.00 and March 9--$50.00 for a total payment of $532.50.

Appellant's major contention is that there was an absence of the employer-employee relationship between the appellant Palmer and the appellee Stockberger and that in fact the appellee Stockberger was a sub-contractor or was the employee of a sub-contractor, appellee Hepler.

In the determination of the legal meaning of an employer-employee relationship, we find the essential terms defined as follows:

EMPLOY--'To engage in one's service; to use as an agent or substitute in transacting business; to commission and intrust with the management of one's affairs; and, when used in respect to a servant or hired laborer, the term is equivalent to hiring, which implies a request and a contract for a compensation, and has but this one meaning when used in the ordinary affairs and business of life.' Black's Law Dictionary, Fourth Edition, page 617.

'To make use of the services of; to give employment to;' it is synonymous with hire and 'is used to emphasize the idea of service to be rendered, hire, of wages to be paid;' the words 'employ' and 'hire' 'are often interchangeable * * *' Webster's New International Dictionary, Second Edition Unabridged, page 839.

EMPLOYEE--'One who works for an employer; a person working for salary or wages; applied to anyone so working, but usually only to * * *, workmen, laborers, etc., * * * Generally, when person for whom services are performed has right to control and direct individual ¹ who performs services not only as to result to be accomplished by work but also as to details and means by which result is accomplished, individual subject to direction is an 'employee' * * * 'employee' must be distinguished from 'independent contractor,' * * * and whether one is an employee or not within a particular statute will depend upon facts and circumstances.' Black's Law Dictionary, Fourth Edition, pages 617, 618. (our emphasis)

EMPLOYER--'One who employs the services of others; one for whom employees work and who pays their wages or salaries. The correlative of 'employee." Black's Law Dictionary, Fourth Edition, page 618.

EMPLOYMENT--'The act of hiring * * *, implying a request and a contract for compensation.' Black's Law Dictionary, Fourth Edition, page 618. (our emphasis)

WAGES--'A compensation given to a hired person for his or her services the compensation agreed upon by a master to be paid to a servant, or any other person hired to do work or business for him (cases cited) Every form of remuneration payable for * * * personal services, including salaries, * * * means pay given for labor usually manual or mechanical * * * that which is pledged or paid for work or other services; hire; pay. In its legal sense, the word 'wages', means the price paid for labor, * * *' Black's Law Dictionary, Fourth Edition, pages 1750, 1751.

There was substantial evidence from which the court could have directly found or reasonably inferred the existence of the following facts: (1) that the appellee Stockberger had on previous occasions been engaged as a sub-contractor; (2) that no sub-contract existed here for the reason that the appellant had already started the job and it only had to be finished; (3) the job site was outside the State of Indiana at Eaton Rapids, Michigan and considerable travel was involved; (4) that there was no written or oral sub-contract entered into between the appellees or either of them and the appellant; (5) the appellant requested both of the appellees to work for him as hereinabove set forth; (6) payment was to be made on an hourly basis and there was no stated price for the entire job; (7) time worked by the appellee Stockberger was turned in to the appellant; (8) that for the convenience of the appellant, i. e., saving him a certain amount of bookkeeping, the appellee Hepler agreed to disburse the wages to the appellee Stockberger; and (9) that the appellant Palmer retained the right of direction and control of the work to be performed by the appellee Stockberger.

A careful review of the evidence and all reasonable inferences to be drawn therefrom reveals that there was evidence of probative value sufficient for the trial court to find the existence of an employer-employee relationship between the parties. Hence, there was also evidence of probative value and reasonable inferences to be drawn therefrom sufficient for the trial court to have negated the existence of a sub-contract.

'It is well settled that an essential characteristic of the employer and employee relation is that the employer retains the right to control and direct the individual performing services, as to both the result and details and the means by which the result is accomplished, such right to control also involving the right to discharge. Accordingly, the right, not the exercise of control, is the determining element, and where the work is not of a character requiring a great deal of supervision, a failure to supervise does not change the relationship of employer and employee.' 12 I. L. E., Employment, § 2, p. 9.

'It is not, however, essential that the master's control be in fact exercised, if he in fact has that power of control.' 35 Am.Jur., Master and Servant, § 539, p. 968.

See also Bradford v. Chism (1963), Ind.App., 186 N.E.2d 432.

Having determined that the trial court was correct in finding that an employer-employee relationship did exist between the parties hereto, we next turn our attention to the question of whether the appellee Stockberger by averment and proof brought himself clearly within the terms of the statute. Statutes (such as §§ 40-101 and 40-102, Burns' 1952 Replacement, supra) which provide penalties for failure to comply therewith being in derogation of the...