Goodell v. Pope-Shenon Mining Co.

LEE, J. This suit is upon five separate causes of action, The first is for services alleged to have been performed by respondent as foreman, at $6 per day, in breaking down, sacking and shipping ore from appellant’s mine, situate in Lemhi county, and overseeing work in relation thereto, between the 2d and 25th days of February, 1919. The second cause is in quantum meruit for the same service. The third. cause is for an attorney’s fee, claimed under C. S., see. 7381, which cause of action was subsequently abandoned, and the attorney’s fee of $50 claimed therein was taxed as a part of the costs. The fourth cause is for a penalty at $5 per day for thirty lays, claimed under C. S., sec. 7381, because of appellant’s alleged failure to pay for the services performed by respondent during the month of February, at the time respondent ceased to work for appellant. The fifth cause is for an alleged balance due for personal property sold and delivered by respondent to appellant. The answer denies the material facts upon which each cause of action is founded, and by way of counterclaim seeks to recover on account of an assigned claim for labor performed by one Morley for respondent, and also for a balance in money, received from appellant, which respondent had not expended on its account. The jury returned a general verdict for $374.15, without indicating upon which causes of action this finding was made, but from the amount and also from the special finding that $138 was due for the services rendered in February, it is apparent that the verdict is made up of the amount claimed in the first or second causes of action for the services rendered in February as foreman, the $150 penalty for failure to pay the same, and $156.90 upon the fifth [430] cause of action, less appellant’s counterclaim of $70.75. Judgment was entered upon this verdict, together with $50 attorney’s fees taxed as a part of the costs. Appellant moved for a new trial, on the ground of the insufficiency of the evidence to support the verdict, which motion was denied, and from the judgment and the order overruling the motion for a new trial this appeal is taken. It appears that respondent had been in the employment of appellant for some time prior to February 2, 1919, at which time the president of the company, whose headquarters were in Salt Lake City, visited the mining property with respondent, and directed him to drill one round in the face of Tunnel No. 5, and sack and ship the ore to Salt Lake City for a test run of its value. This respondent proceeded to do, and broke down, sacked and shipped to the smelter about eight tons of ore between the 2d and 25th days of February, at which time appellant directed a Mr. Boulais to take charge of its affairs at the mine. He retained respondent, who continued in the employ of the company until about April 8th, at $5 per day. At that time respondent voluntarily quit the service of the company, and about the same time his wife gave up the company boarding-house and the supplies and other personal property were listed, appellant, through its foreman, agreeing to purchase the same. There is some discrepancy in the testimony as to what the exact purchase price was to be. Appellant’s principal office is located at Salt Lake City, and it issued pay cheeks in the form of vouchers, which 'purported to contain an itemized statement of the time and items for which such cheeks were issued. These cheeks or vouchers were made payable to the person or his order named therein, and read: “Do not indorse if not correct. When indorsed by payee, this check will constitute a full receipt for account as stated herein. Indorse here.” The first of these vouchers or checks, covering in part the period from February 2d to February 25th, the time for which respondent claims he has not been paid, and for which he also claims the thirty-day penalty under the provi [431] sions of C. S., sec. 7381, and the $50 attorney’s fee under C. S., sec. 7380, taxed as costs, is dated February 20th, is for $475, and contains the itemization: “In full to date, footage, getting out logs, etc.” It is indorsed below the instruction above referred to. The second of these checks is for $394.69, is dated April 8, 1919, drawn to the order of respondent, and in like manner is indorsed by him, and contains the items: “February to March pay-roll, $167.20; Board $227.40.” The two remaining voucher cheeks of the same kind are also to the order of respondent, and, among other things, purport to be for services rendered by respondent in April, and are likewise indorsed by respondent. They were identified, but not offered in evidence because of respondent’s admission that he was paid in full for services rendered in March and April. After this offer was made, appellant’s counsel did not urge the admission of these last two vouchers. After respondent withdrew from the service of this company on April 8th, he does not appear to have made any claim or demand for unpaid wages until May 22d following, when his counsel made such claim in writing, advising appellant that he claimed $138 for the services performed in February, and a further claim of $175 for the personal property, less certain credits which were admitted, making a total of $294.90. He further advised appellant that unless the $138 was paid, a claim would be made for the penalty of $5 per day for thirty days, under the provisions of C. S., sec. 7381, and shortly thereafter brought this action in the probate court of Lemhi county for the several amounts stated. In view of this state of the record, we think there is no competent evidence to support the finding of the jury with regard to the first, second or fourth causes of action, or to sustain that part of the judgment of the court taxing as a part of the costs $50 attorney’s fees. This court has held that C. S., sec. 7381, must be reasonably construed, and that it was not the intention of the [432] legislature in enacting this statute to penalize an employer for failing to pay an unjust debt, or for a failure to pay when the discharged laborer, after demanding payment, prevents a compliance with the demand by his own conduct, or to deny or preclude the right of an employer to interpose any valid counterclaim or defense to the claim of such laborer. (Olson v. Idora Hill Mining Co., 28 Ida. 504, 155 Pac. 291.) Again, in Robinson v. St. Maries Lumber Co., 34 Ida. 707, 204 Pac. 671, it is said that the purpose of this statute is to impose a penalty upon an employer in case of his failure to pay an employee wages earned when due, after a proper demand therefor has been made. We think that respondent, with regard to his fourth cause of action, has wholly failed to show that this claim for a penalty is within the purview of this section of the statute. Entirely aside from his having indorsed these several voucher checks referred to, when they instructed him not to do so if the same were incorrect, he continued in the service of the company, drawing $5 per day, during March and a part of April following, and then appears to have voluntarily quit its service, and not to have made any further demand until that made through his attorney in the latter part of May. In addition to this, it is shown that for the breaking down, sacking and shipping of these eight tons of ore, he made a claim for other workmen for 17 days’ time, and the same was promptly paid. The testimony shows that this work, which was all that he was instructed to do, and all of any consequence that he did do, would not ordinarily require an efficient man’s time for more than five or sis days. Where the complaint sets up several distinct causes of action, there should be a separate finding upon each cause. There is some evidence to support the fifth cause of action, which was for $156.90, but the evidence is insufficient to support a finding for respondent in any sum upon any of the four preceding causes of action. Upon the authority of Watkins v. Mountain Home Co-op. Irr. Co., 33 Ida., at page 638, 197 Pac. 247, and also of Olson v. Idora Hill [433] Mining Co., supra, at page 519, this cause will be remanded, with instructions to the trial court, that unless respondent, within thirty days after the filing of the remittitur, remits from said judgment all in excess of $156.90 and also the $50 attorney’s fees taxed by the court as a part of the costs, to grant appellant a new trial; but in ease said remission is made, to enter judgment for $156.90 and the costs taxed in the court below, less said $50 attorney’s fee. Respondent to recover costs on this appeal, unless a new trial is awarded appellant, in which ease it shall be awarded costs on this appeal. Rice, C. J., and Budge, McCarthy and Dunn, JJ., concur.