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):
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:
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 $60.00 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 $1,800.00. 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
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., R. 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., R. Co. 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, 134 N.E. 275; Superior Laundry Co. v. Rose (1923), 193 Ind. 138, 137 N.E. 761; Republic Iron, etc., Co. v. State (1903), 160 Ind. 379, 66 N.E. 1005.
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 provided for the weekly payment thereof, and that this contract satisfied the statutory provision for a "request."
Appellant, to the contrary, contends that the provision in the contract carries no such inference as to
We therefore conclude that the union contract is not so clear and unequivocal on the matter of the time of payment of the wages therein provided for, as to bring it within the degree of proof required to support the violation of such statutes and that
In the event appellee files a remittitur in the sum of $4,350.00 within 30 days from the date hereof, the judgment so remitted is affirmed; otherwise this cause is remanded with instructions to sustain appellant's motion for a new trial.
NOTE. — Reported in 99 N.E.2d 268.