Superior Laundry Co. v. Rose, 23923.

• Decision Date: 26 January 1923
• Docket Number: No. 23923.,23923.
• Citation: 137 N.E. 761,193 Ind. 138
• Parties: SUPERIOR LAUNDRY CO. v. ROSE.
• Court: Indiana Supreme Court

193 Ind. 138

137 N.E. 761

SUPERIOR LAUNDRY CO.

v.ROSE.^*

No. 23923.

Supreme Court of Indiana.

Jan. 26, 1923.

Appeal from Circuit Court, Lake County; E. Miles Norton, Judge.

Action by Angel P. Rose against the Superior Laundry Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Kenneth Call, of Gary, and Slick & Slick, of South Bend, for appellant.

George P. Rose, of Gary, for appellee.

EWBANK, J.

Appellee brought suit against the appellant, alleging in the first paragraph of his complaint that he had been employed by appellant as the driver of a laundry wagon, and that on January 8, 1920, appellant had discharged him, while indebted to him for $72.16 of wages, which appellant refused to pay. The answer was a general denial and plea of payment. The court instructed the jury that, if they found the allegations of the complaint to be true, appellee was entitled to recover as damages 10 per cent. of the amount of wages due him for each day that payment was withheld after the wages became due, down to the date of the trial, in addition to recovering the amount of such unpaid wages, and set out in one instruction sections 7989a, 7989b, Burns' 1914 (Acts 1913, c. 27, p. 47), and told the jury that the complaint was based on that statute. The appellant duly excepted to the giving of each of the instructions, and presented them for review by specifications in its motion for a new trial. The motion was overruled, and appellant excepted, and has assigned the ruling as error. The verdict recited that the jury found for appellee on the first paragraph of his complaint, and assessed his damages at $314.76, being more than four times the amount of wages alleged to be due.

The first question presented for decision is whether that part of the act in question which provides for the recovery of a penalty is constitutional. The act reads as follows:

“Section 1. That every person, firm, corporation or association, their trustees, lessees or receivers appointed by any court whatsoever doing business in this state shall pay each employee thereof at least twice each month, between the first and tenth and between the fifteenth and twenty-fifth of each month, the amount due such employee and such payment shall be made in the lawful money of the United States or by negotiable check, draft or money order, and any contract to the contrary shall be void. Such payment shall be made for all wages earned to a date not more than ten days prior to the date of such payment, provided that nothing herein shall be taken to prevent payments being made at shorter intervals than herein specified nor to repeal any law providing for such payments.

Sec. 2. Every such person, firm, corporation or association who shall fail to make payment of wages to any such employee, as provided in section 1 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, and said damages may be recovered in any court having jurisdiction of a suit to recover the amount due to such employee, and in any suit so brought to recover said wages, or the liquidated damages for nonpayment thereof, or both, the court shall tax and assess as costs in said case a reasonable fee for the plaintiff's attorney or attorneys.”

Sections 7989a, 7989b, Burns' 1914; Acts 1913, c. 27, p. 47.

The Weekly Wage Law of 1899 (Laws 1899, c. 124) was held unconstitutional by this court because it expressed an absolute command that all wages should be paid in full each week to within six days of the time of payment, thereby depriving the employer and employee of the right to contract for payment at other times or at longer intervals. In deciding that case the court said:

“We do not assert that the Legislature is powerless to regulate the payment of wages when the same are paid at unreasonable periods, or that a community composed largely of workingmen may be injuriously affected by unduly delayed payments, for these questions are not before us; but what we do hold is that this statute which takes away from both the employer and the employee, whether in the shop, in the store, or on the farm, all power to contract for labor, except upon terms of weekly payment of wages in cash, is an unreasonable, and therefore an unconstitutional, restriction.” Republic I. & S. Co. v. State, 160 Ind. 379, 389, 66 N. E. 1005, 62 L. R. A. 136.

The act of 1887 commanding all employers engaged in mining or manufacturing to pay their workmen at least once every two weeks, “if demanded,” was upheld by this court against the objection that it assumed to deny the right of contract. The court distinguished the case of Republic I, & S. Co. v. State, supra, on the ground that the “requirement to pay at the time prescribed by the statute only becomes mandatory upon the employer on the demand of the employee to whom the wages are due and owing,” and that “his right under the law to demand semimonthly the amount of wages then due to him is a matter wholly optional with him, *** which he may exercise or not as he chooses.” Seelyville Coal, etc., Co. v. McGlosson, 166 Ind. 561, 567, 77 N. E. 1044, 117 Am. St. Rep. 396, 9 Ann. Cas. 234.

The...