Standard Liquors v. Narcowich

• Decision Date: 08 June 1951
• Docket Number: No. 18068,18068
• Citation: 121 Ind.App. 600,99 N.E.2d 268
• Parties: STANDARD LIQUORS, Inc. v. NARCOWICH.
• Court: Indiana Appellate Court

Page 268

99 N.E.2d 268

121 Ind.App. 600

STANDARD LIQUORS, Inc. v. NARCOWICH.

No. 18068.

Appellate Court of Indiana, in Banc.

June 8, 1951.

Kenneth Call, Gary, Riley, Reed, Murphy & McAtee, Chicago, for appellant.

Jay E. Darlington, Hammond, for appellee.

ACHOR, Judge.

This is an action brought by appellee against appellant for wages claimed to be due and owing appellee for services as a truck driver claimed to have been performed by him in addition to his services as a salesman and for 'liquidated damages' in twice the amount claimed, together with attorney fees.

The action is grounded upon Sections 40-101 and 40-102, Burns' 1940 Replacement. The applicable provisions of these statutes are as follows, § 40-101: 'Every person, * * * doing business in this state shall pay each employee thereof at least twice each month, if requested, * * * (Acts 1933, ch. 47, § 1, p. 371.)' § 40-102: 'Every such person, * * * who shall fail to make payment of wages to any such employee, as provided in section one ( § 40-101) of this act, 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, and * * * a reasonable fee for the plaintiff's attorney or attorneys. (Acts 1933, ch. 47, § 2, p. 371.)'

Accepting the evidence most favorable to the appellee, at the oral request of his employer (appellant), on April 18, 1944 he began working as a truck driver in addition to his previous regular employment as a salesman.

In November, 1945, appellant and Local No. 142 of the General Drivers, Chauffeurs, Warehousemen and Helpers Union, of which appellee was a member, entered into a contract whereby, among other things, it was agreed as follows: 'Article 3. The guaranteed weekly wage shall be Sixty ($60.00) Dollars per week. Forty (40) hours shall constitute a week's work, to be completed in Five (5) days. Time and one-half shall be paid for all over Eight (8) hours per day and Forty (40) hours per week, and for all work done on Sundays and Legal holidays or substitutes thereof.'

Appellee's employment as a truck driver continued until August, 1946. Thereafter he continued to work for appellant as salesman until May 3, 1949, at which time his employment was terminated. On May 25, 1949, appellee made written demand upon appellant for back wages as a truck driver, claimed to be due and unpaid.

There was a failure of proof on the part of appellee to establish the facts of his employment as a truck driver during the period from April, 1944 to January, 1946. Evidence is lacking both as to the amount of time spent by appellee as a truck driver and the amount of compensation agreed upon for such additional services during that period. However, the jury had reason to hold that the contract between the employer and appellee's union constituted the basis of appellee's employment as a truck driver from January until August, 1946. This contract guaranteed a minimum weekly wage of $60 per week regardless of the time actually spent in such employment. The jury found that appellant was indebted to appellee for such wages in the sum of $1,800. This amount is reasonably consistent with the minimum amount specified in the union contract for the period of appellee's alleged employment thereunder.

The question presented in this case is whether or not judgment in the case was sustained by sufficient evidence and was contrary to law in that it provided for $3,600 liquidated damages and $750 attorney's fees.

The right of the court to assess punitive damages and attorney fees is entirely statutory. Statutes which have fixed the time for payment of wages have repeatedly been held unconstitutional as abridging the right of freedom of contract unless such statutes made provision for a 'request' or 'demand' of payment by the employee. Chicago, etc., Co. v. Ebersole, 1910, 173 Ind. 332, 90 N.E. 608; Toledo, etc., Co. v. Long, 1907, 169 Ind. 316, 82 N.E. 757; Baltimore & O., etc., v. Burdalow, 1914, 57 Ind.App. 267, 106 N.E. 902; Smith v. Ohio Oil Co., 1909, 43 Ind.App. 735, 86 N.E. 1027; Princeton Coal Co. v. Dorth, 1922, 191 Ind. 615, 133 N.E. 386, 500, 134 N.E. 275, 24 A.L.R. 1471; Superior Laundry Co. v. Rose, 1923, 193 Ind. 138, 137 N.E. 761, 139 N.E. 142, 26 A.L.R. 1392; Republic Iron, etc., Co. v. State, 1903, 160 Ind. 379, 66 N.E. 1005, 62 L.R.A. 136.

It would therefore seem to necessarily follow that the 'request' or 'demand' for payment must be directly related to the contract of employment and must be concurrent with, if not prior to, the period of employment involved in order to bring it within the purview of the statute. We therefore conclude that the appellee's written demand for payment, made nearly three years after his employment as a truck driver, was not sufficient to bring him within the punitive provisions of the statute.

It is contended by appellee that the union contract, previously referred to, not only fixed the amount of his weekly wages but that by reasonable inference it also...