United States Reduction Co. v. Nussbaum

• Decision Date: 16 June 1942
• Docket Number: 16856.
• Citation: 42 N.E.2d 403,112 Ind.App. 330
• Parties: UNITED STATES REDUCTION CO. v. NUSSBAUM.
• Court: Indiana Appellate Court

42 N.E.2d 403

112 Ind.App. 330

UNITED STATES REDUCTION CO. v. NUSSBAUM.

No. 16856.

Appellate Court of Indiana, in Banc.

June 16, 1942

Crumpacker & Friedrich, Edwin H. Friedrich, and Stanley A. Tweedle all of Hammond, for appellant.

Tinkham & Tinkham and J. W. McCartin, all of Hammond, for appellee.

STEVENSON Presiding Judge.

The appellee brought this action against the appellant to recover wages due him, and to recover the statutory penalty for failure to pay the same.

The appellee's amended complaint in one paragraph alleged that the appellant is an Illinois corporation, with authority to do business and operate in the state of Indiana, and was so operating in the city of East Chicago. The appellee alleged that in the month of September, 1939, he was employed by the appellant under a month-to-month contract, at an agreed wage of $400 per month. The complaint alleged that the appellant wholly failed and refused to pay the wages due the appellee for the month of September, 1939, and the same is now long past due and wholly unpaid.

The appellee further alleged that by virtue of the statute in such cases made and provided there is due as liquidated damages, for the failure and refusal to pay the wages due, a sum equal to twice the amount of the wages due, plus a reasonable attorneys fee of $150.

The complaint closed with a prayer for judgment in the sum of $1,350. The appellant filed an answer in three paragraphs the first of which was in general denial. The second paragraph of answer alleged that the appellee voluntarily left the employment of the appellant on September 2, 1939 and that on September 9, 1939, the appellant tendered to the appellee his earned wages for two days' employment in the month of September, totaling $30.45, which amount the appellee refused to accept and which amount the appellant tendered into open court. The third paragraph of answer alleged that the appellee on the 2nd day of September, 1939, voluntarily quit and left the employment of the appellant because he was displeased and unsatisfied with the work. This paragraph contained the same facts as set forth in paragraph two with reference to tender. Replies in denial closed the issues.

The case was submitted to a jury for trial, which at the close of the evidence returned a verdict in favor of the appellee in the sum of $800. The court rendered judgment on this verdict for $800 together with the additional sum of $125 as a fee for the appellee's attorneys. A motion for new trial was filed and overruled; and this appeal has been perfected. The error relied upon in this court is the alleged error in overruling the appellant's motion for a new trial. Under this assignment, the appellant first contends that the verdict of the jury is not sustained by sufficient evidence, for the reason that the penalty provision of the statute applies only in cases where there is failure to pay wages actually earned.

The appellant contends that by tendering to the appellee on September 9th the wages for the two days in September which he actually worked, the appellant has complied with the statute. The statute out of which this controversy arises provides as follows:

"Every person, firm, corporation or association, * * * doing business in this state shall pay each employee thereof at least twice each month, if requested, between the first and tenth and between the fifteenth and twenty-fifth of each month inclusive, 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 payments shall be made for all wages earned to a date not more than ten (10) days prior to the date of such payment; * * *." § 40-101, Burns' 1933, § 10003, Baldwin's 1934.

"Every such person, firm, corporation or association who shall fail to make payment of wages to any such employee, as provided in section 1 (§ 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 * * *." § 40-102, Burns' 1933, § 10004, Baldwin's 1934.

It will be noted from a reading of this statute that an employer is required to pay his employee between the 1st and 10th and between the 15th and 25th of each month inclusive, the "amount due such employee." The amount payable under this statute at any one time, however, shall consist of "all wages earned to a date not more than ten (10) days prior to the date of such payment." It is further provided that a penalty shall attach if an employer "shall fail to make payment of wages to any such employee, as provided in section 1 * * * of this act." It is apparent, from a reading of this statute, that the penalty attaches only upon failure to pay "wages earned," at the time when the statute provides that such payments shall be made.

The question, therefore, presented for our determination is the amount of wages earned by the appellee at the time of his wrongful discharge. The appellee contends that he earned his salary for the month of ...