Peters v. Int'l Harvester Co.

• Decision Date: 04 June 1946
• Citation: 22 N.W.2d 518,248 Wis. 451
• Parties: PETERS et al. v. INTERNATIONAL HARVESTER CO.
• Court: Wisconsin Supreme Court

248 Wis. 451

22 N.W.2d 518

PETERS et al.

v.INTERNATIONAL HARVESTER CO.

Supreme Court of Wisconsin.

April 12, 1946.

Rehearing Denied June 4, 1946.

Appeal from an order of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Affirmed.

Action by Ralph Peters and another in their own behalf and in behalf of others similarly situated against International Harvester Company. From an order entered September 24, 1945, denying a motion by the defendant for a summary judgment, the defendant appeals. The facts are stated in the opinion.

Otjen & Otjen, of Milwaukee, for appellant.

David Beznor, of Milwaukee, for respondent.

FOWLER, Justice.

The case is an appeal from an order denying the motion of the defendant for a summary judgment based upon the complaint, the answer and an affidavit of an agent of the defendant.

The plaintiffs are and at all times involved were employees of the defendant doing piece work and paid a specified amount per piece. The defendant deducted from the amount of their pay for pieces rejected by the defendant for ‘alleged defective or faulty workmanship’ and scrappedthe pieces. The two named plaintiffs sue to recover the amount so deducted basing their action on sec. 103.455, Stats., set out in the margin.¹

The defendant by answer or demurrer did not object to the misjoinder of the two named plaintiffs, and so waived that objection. Sec. 260.12, Stats. If the deduction was in violation of the statute each of the named plaintiffs is entitled to recover twice the amount of his deduction. We first determine whether the complaint states a cause of action in favor of the named plaintiffs.

The basic allegations are that since 1938 the defendant company has carried on the practice of making deductions fom the wages of the plaintiffs ‘for alleged defective or faulty workmanship without the company and a representative designated by the plaintiffs first determining that such alleged defective or faulty work is due to the plaintiffs' negligence, carelessness or wilful or intentional conduct’; that such deductions range from fifty cents to $1.50 from each week's pay, and that the exact amount is unknown to these plaintiffs, but that the company has in its possession all the records showing with exactness the deductions from plaintiffs' wages from week to week; and that the defendant has refused to pay the plaintiffs the amount of the deductions. The complaint demands judgment for twice the amounts so withheld.

The case is ruled by Zarnott v. Timken, 244 Wis. 596, 13 N.W.2d 53, 153 A.L.R. 860. The issues in that case were in all respects the same as in the instant one. That case was based on the statute as it existed before amendment in 1943, but the amendment only adds ‘lost or stolen property or damage to property,’ ‘and prescribes that deductions for negligence shall not be made unless authorized in writing by the employee; ‘or unless the employe is found guilty or held liable in a court of competent jurisdiction by reason thereof.’ But these amendments are irrelevant because it is not alleged in the affidavit in support of defendant's motion or in the complaint that either of these facts exist. The amendments of the statute are indicated by the italicized portions of the statute as set out in the margin. Deleting them the statute is in the exact form it was in when the Zarnott Case was decided. See Zarnott Case opinion, 244 Wis. at p. 599, 13 N.W.2d at p. 53, where the statute as it then existed is quoted. It is plainly stated in the Zarnott Case opinion ‘that in the event this opportunity (to show that the defect was not due to employee's ‘negligence, carelessness or wilful and intentional misconduct’) is not given' the defendant is liable for twice the amount of...