Riter-Conley Mfg. Co. v. Wryn

• Decision Date: 23 July 1918
• Docket Number: Case Number: 8187
• Citation: 174 P. 280,1918 OK 406,70 Okla. 247
• Parties: RITER-CONLEY MFG. CO. v. WRYN.
• Court: Oklahoma Supreme Court

1918 OK 406

174 P. 280

70 Okla. 247

RITER-CONLEY MFG. CO. v. WRYN.

Case Number: 8187

Supreme Court of Oklahoma

Decided: July 23, 1918

Syllabus

¶0 1. Appeal and Error--Assignments of Error--Necessity.

Where plaintiff fails to assign as error the overruling of a motion for a new trial, this court will not review the sufficiency of the evidence to support the verdict.

2. Statutes--Special Legislation--Uniform Operation of General Laws.

Sections 3765 and 3768, Rev. Laws 1910, are not in contravention of section 59, art. 5 of the Constitution of the state of Oklahoma.

3. Constitutional Law--Fourteenth Amendment--False Inducement to Enter Employment.

That part of section 3768, which provides that, "in addition to the actual damages that a workman may have sustained, he shall be entitled to recover such reasonable attorney's fee as the jury may fix," is not violative of the fourteenth amendment of the Constitution of the United States.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Frank Wryn against the Riter-Conley Manufacturing Company, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.

Everest & Campbell and Sherman, Veasey & O'Meara, for plaintiff in error.

Twyford & Smith and John R. Hadley, for defendant in error.

COLLIER, C.

¶1 This is an action brought by the defendant in error against the plaintiff in error, to recover damages alleged to have been suffered by the plaintiff in error by reason that the defendant in error wrongfully and falsely failed to represent to him, at the time of his employment, that there were labor troubles, strikes, or lockouts at or around the place where the plaintiff was employed to work in Oklahoma, and $ 150 attorney's fee.

¶2 Hereinafter the parties will be designated as they were in the trial court.

¶3 The evidence is voluminous, and we think that it is not necessary for a proper understanding of this case it set out in detail, but it is sufficient to state that the unquestioned evidence is that the plaintiff was a resident of Kansas City, Mo., was a structural iron worker by trade; that he was employed in Kansas City to come to this state and work for the defendant as a tank builder; that he was directed to go to Norfolk, Okla.; that on arriving near Norfolk he was informed that there was a strike, and later looked out and saw armed men at Norfolk, the field in which defendant was operating, and where plaintiff was to work; that he did not stop at Norfolk; that he never went to the field in which defendant was operating; that he never worked for the defendant, but went to Cushing; that afterwards an agent of defendant offered to send plaintiff back to Kansas City and said defendant's agent and said plaintiff could not agree as to the amount to be paid the plaintiff in settlement. There was also uncontradicted evidence in the case showing that, if the plaintiff was entitled to recover at all in this case, he was entitled to recover an amount certainly as great as the amount of the verdict rendered. The evidence was in conflict as to whether the party employing the plaintiff was in so doing the agent of the defendant, and whether or not the plaintiff at the time of his employment was informed by the agent of defendant that there were labor troubles in the vicinity to which he was to be sent.

¶4 It was stipulated that, if the plaintiff was entitled to any attorney's fees at all, the evidence would show that $ 150 would be a reasonable attorney's fee. The jury returned a verdict in favor of the plaintiff for the sum of $ 26 and answered interrogations as follows:

"(1) Did the defendant, by it's agents, represent to the plaintiff, before he left Kansas City, there were no strike or labor troubles in the oil fields in Oklahoma, where the plaintiff was to be carried for the purpose of working for the defendant? Answer: No.

"(2) Did the defendant, by its agent, inform the plaintiff, before he left Kansas City, there were strike or labor troubles in the oil fields in Oklahoma, where the plaintiff was to be carried for the purpose of working for the defendant? Answer: No."

¶5 The defendant timely moved for a new trial, which was overruled and excepted to. Later the court entered a judgment against the defendant for the sum of $ 26 and for the additional sum of $ 150 attorney's fee. To the rendition of this judgment the defendant excepted, and perfected an appeal to this court.

¶6 The defendant assigns the following errors:

"First There was no evidence upon which to base the finding of the jury.

"Second. There was no valid law authorizing the court to render judgment for $ 150 attorney's fee in favor of the plaintiff.

"Third. The entire statute under which the action was brought is unconstitutional.

"Fourth. The particular part of the statute which allows the recovery of attorney's fees, is unconstitutional."

¶7 The overruling of the motion for a new trial not being assigned as error, errors occurring during the trial cannot be considered by this court. Vandenburg v. Winne, 55 Okla. 679, 155 P. 245; Nichols v. Dexter, 52 Okla. 152, 152 P. 817; Millus v. Lowrey Bros., 63 Okla. 261, 164 P. 663, L.R.A. 1918B, 336; Cleveland v. Lampkin, 65 Okla. 159, 165 P. 159.

¶8 It follows that the only question presented for review, is as to the constitutionality of sections 3765 and 3768, Rev. Laws 1910, under the Constitution of this state; and is that part of said section 3768, which provides for including as costs and attorney's fee in the event of the recovery of damages, in conflict with the fourteenth amendment of the Constitution of the United States?

¶9 Sections 3765, 3766, and 3768 of the Revised Laws of Oklahoma (1910) were enacted at one and the same time (Session Laws 1907-08, p. 514), and should be construed together.

¶10 Section 3765 reads:

"It shall be unlawful for any employer of labor doing business in the state, to induce, influence, persuade or engage workmen to change from one place to another in the state, or to bring workmen of any class or calling into the state to work in any of the departments of labor, through or by means of false or deceptive representations, false advertising or false pretenses concerning the kind and character of the work to be done, or amount and character of the compensation to be paid for such work, or the sanitary or other conditions of employment, or as to the existence or nonexistence of a strike or other trouble pending between employer and employes, at the time of or prior to such engagement. Failure to state in an advertisement, proposal or contract for the employment of workmen that there is a strike, lockout or other labor trouble at the place of the proposed employment, when, in fact, such strike, lockout or other labor troubles then actually exist at such place, shall be deemed a false advertisement and misrepresentation for the purposes of this section."

¶11 Section 3766 reads:

"Any employer of labor of any kind doing business in this state, as well as its agent, attorney or servant found guilty of violating the preceding section, or any part thereof, shall be fined not less than five hundred dollars and not exceeding two thousand dollars, or confined in the county jail not less than one month and not exceeding one year, or both such fine and imprisonment."

¶12 Section 3768 reads:

"Any workman who shall be influenced, induced or persuaded to engage with any persons mentioned in section 3765, through or by means of any of the things therein prohibited, shall have the right of action for recovery of all damages that he has sustained in consequence of the false or deceptive representation, false advertisement and false pretenses used to induce him to change his place of employment, against such companies, corporations, or other employers of labor directly or indirectly causing such damages, and, in addition to all actual damages such workman may have sustained, he shall be entitled to recover such reasonable attorney's fees as the jury shall fix, to be taxed as costs in any judgment recovered."

¶13 The contention of the defendant is:

"(1) That the statute in toto is void because it violates section 59 (article 5) of the Constitution of this state. (2) That that part of section 3768, allowing attorney's fee in case of recovery, is in violation of the fourteenth amendment of the Constitution of the United States."

¶14 Section 59, art. 5, of the Constitution of this state reads:

"Laws of a general nature shall have a uniform operation throughout the state, and where a general law can be made applicable no special law shall be enacted."

¶15 The fourteenth amendment of the Constitution of the United States reads:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."

¶16 The instant case is brought under section 3768, and therefore it clearly appears that the law involved in this action is the exercise of a police power, and the attorney's fees given under section 3768, Revised Laws, is an additional penalty imposed.

¶17 In Arkansas Ins. Co. v. McManus, 86 Ark. 115, 110 S.W. 797, it is held:

"The statute of 1905, providing for the collection of a 12 per cent. penalty and reasonable attorney's fees from an insurer who fails to pay a loss within the time prescribed by the policy after demand, is not unconstitutional as a denial of equal protection of the laws, nor as a deprivation of property without due process of law."

¶18 This holding finds support in Union Central Life Ins. Co. v. Chowning, 86 Tex. 654, 26 S.W. 982, 24 L. R. A 504; N.Y. Life Ins. Co v. Orlopp, 25 Tex. Civ. App. 284, 61 S.W. 336; Merchants' Life Ass'n v. Yoakum, 98 F. 251, 39 C. C. A. 56; and by the Supreme Court of the United States in Fidelity Mutual Life Ass'n v. Mettler, 185 U.S. 308, 22 S....