Zarnott v. Timken-Detroit Axle Co.

• Decision Date: 24 April 1944
• Citation: 13 N.W.2d 53,244 Wis. 596
• Parties: ZARNOTT v. TIMKEN-DETROIT AXLE CO.
• Court: Wisconsin Supreme Court

244 Wis. 596

13 N.W.2d 53

ZARNOTT

v.TIMKEN-DETROIT AXLE CO.

Supreme Court of Wisconsin.

Feb. 15, 1944.

Rehearing Denied April 24, 1944.

Appeal from a judgment of the Circuit Court for Winnebago County; Henry P. Hughes, Judge.

Affirmed.

Action commenced March 22, 1943, by Elkar Zarnott on his own behalf and on behalf of other employees similarly situated, against Timken-Detroit Axle Company, to recover for payroll deductions made in violation of sec. 103.455, Stats. The case was tried to the court without a jury. Judgment was awarded to the plaintiff and other employees set forth in the complaint, on August 25, 1943. Defendant appeals.

Appellant manufactures rear axles, transfer cases, and control differentials in its factory at Oshkosh, Wisconsin. The plaintiff Zarnott and other employees similarly situated will be referred to as respondents. Respondents are machine operators and are paid on a piece-work basis with guaranteed minimum hourly rate. Each employee is given a job card which shows the part to be manufactured, the machine on which it is to be manufactured, the operations number, set-up prices, piece rate, and a description of the operation. At the end of the day the employee turns in his card and finished pieces. The pieces go to the inspection department for inspection, and the card goes to the bookkeeping department where the employee is given credit on the books of the company for all pieces manufactured by him. After inspection if any pieces are rejected as defective and designated as scrap and the foreman determines the defect was due to the carelessness of the employee, the payroll department is notified and the account of the particular employee is charged the piece rate previously credited. When the employee receives his pay check, a slip is attached showing his earnings and deductions, the deductions being set up in separate columns specifying the purpose of the deduction and the amount. Deductions for defective pieces designated as scrap are shown in column 4 of the slip. The employees were never required to, nor did they ever, designate a representative to examine the defective pieces. A scrap committee, composed of the chief inspector, one or two representatives from the office of the defendant company, and a representative of the union of the employees, inspects the scrap pieces with the foreman of the department for the purpose of determining what defective pieces can be salvaged, but not for the purpose of determining whether the defect was caused by the carelessness or wilful and intentional conduct of the workman.

Miller, Mack & Fairchild and Paul R. Newcomb, all of Milwaukee, for appellant.

Max Raskin and William F. Quick, both of Milwaukee, for respondent.

BARLOW, Justice.

Sec. 103.455, Stats., in effect during the period involved in this action provides as follows: ‘No employer shall make any deduction from the wages due or earned by any employe, who is not an independent contractor, for defective or faulty workmanship, unless the employer and a representative designated by the employe shall determine that such defective or faulty work is due to the worker's negligence, carelessness, or wilful and intentional conduct on the part of such employe. If any such deduction is made or credit taken by any employer, that is not in accordance with this section, the employer shall be liable for twice the amount of the deduction or credit taken in a civil action brought by said employe. Any agreement entered into between employer and employe contrary to this section shall be void and of no more force and effect. In case of a disagreement between the two parties, the industrial commission shall be the third determining party, subject to any appeal to the court.’

The following contentions of appellant will be considered together: (1) No compensation is due to an employee for defective pieces where the defect is caused by the negligence of the employee and therefore there are no wages due or earned to bring the appellant under the statute; (2) the statute provides a penalty, and to support this action there must be a wilful, wanton and reckless violation, which has not been established.

The fundamental rule of construction of a statute is to ascertain and give effect to the intention of the legislature as expressed in the statute. Rossmiller v. State, 1902, 114 Wis. 169, 89 N.W. 839,58 L.R.A. 93, 91 Am.St.Rep. 910;State ex rel. Monroe County v. Vernon County, 1912, 148 Wis. 274, 134 N.W. 360;State ex rel Mattek v. Langlade County, Nimtz, 1931, 204 Wis. 311, 236 N.W. 125. Words in the statute should be given the effect necessary to carry out the intention of the legislature under the ordinary rules of construction. Wisconsin Trust Co. v. Munday, 1918, 168 Wis. 31, 168 N.W. 393,169 N.W. 612;Id., 252 U.S. 499, 40 S.Ct. 365, 64 L.Ed. 684. Where a penalty is involved it has been said that while such statute must be construed with such strictness as carefully to safeguard the rights of the defendant and at the same time preserve the obvious intention of the legislature, the rule of strict construction is not violated by taking the common-sense view of the statute as a whole and giving effect to the object of the legislature, if a reasonable construction of the words permits it. Bolles v. Outing Co., 175 U.S. 262, 20 S.Ct. 94, 44 L.Ed. 156;Illinois C. R. Co. v. Hudson, 136 Tenn. 1, 188 S.W. 589, 2 A.L.R. 147.

No claim is made by respondents that the company is required to pay for defective or faulty...