This is an appeal from a judgment for appellee for failure of appellants to plead over after a demurrer had been sustained to an amended complaint. The appeal is here by reason of the failure of four judges of the Appellate Court to concur. Section 4-209, Burns' 1946 Replacement.
The amended complaint in substance charged that appellant brought this action individually and as a member of and on behalf of 6,800 employees of appellee; that on April 30, 1952, they engaged in an industrial dispute with the appellee and had ceased working for it; that on said date they had earned wages for approximately ten days which became due and payable on May 9, 1952, which was the next regular pay day; that demand had been made for the payment of said wages and that appellee wrongfully and unlawfully and in violation of the statutes of the State of Indiana failed to pay the wages due for a period of more than ten days; that there was due appellant and the members of the class the approximate sum of $816,000.00, "in varying amounts due to each member of said class"; that under the statutes of the state there was due said parties as liquidated damages the additional sum of $816,000.00 plus attorneys' fees for appellants' attorneys
Appellee filed a demurrer for the following causes:
There is no merit to the first cause for demurrer. I Lowe's Works' Ind. Practice § 14.14; Flanagan, Ind. Pl. & Proc. § 24(1). Nor does the second cause deserve serious consideration, for appellee complained there were too many parties. The record fails to disclose the trial court followed the requirements of § 2-1008, Burns' 1946 Replacement, in sustaining a demurrer on the ground of misjoinder of causes, and we must presume the demurrer was not sustained on that ground. Teeter v. Municipal City of LaPorte (1956), 236 Ind. 146, 139 N.E.2d 158. The third ground for demurrer presents the serious issue in this appeal.
As we construe the complaint it attempted to plead a common count for work and labor for the appellant and all other members of the class under Ch. 47 of the 1933 Acts (§§ 40-101 and 40-102, Burns' 1952 Replacement) and Ch. 95 of the 1939 Acts (§§ 40-124 to 40-131, Burns' 1952 Replacement).
Therefore, appellant must justify the action at bar under the provisions of § 2-220, Burns' 1946 Replacement, which states:
This court has held this section merely restates the equity rule for both equity and law under the Code.
Professor Pomeroy stated the requirement as follows:
This test was quoted with approval in Kimes v. City of Gary (1946), 224 Ind. 294, 302, 66 N.E.2d 888, supra.
The fact that thousands of employees have separate claims for work and labor against the same defendant is not sufficient to authorize joining them in one class action against the defendant. Nor is it sufficient that all their wages may be due on the same day. Pemberton v. Board of Education of City School Dist. (1940), 67 Ohio App. 175, 36 N.E.2d 170; Masetta v. National Bronze & Aluminum Foundry Co. (1953), 159 Ohio St. 306, 313, 314, 112 N.E.2d 15. In the latter case the court reasoned: "If this be considered an action at law, the only remedy sought is money damages — the amount which each of the group lost by way of wages, bonuses, overtime, premium time and vacation pay and damages due to loss of seniority. Whether all these items are included in the lump sum of $60,000 is not made clear. If such damages were recoverable, it is obvious that no two employees would be entitled to the same amount. Each employee would have his individual seniority rights and no two would be the same. There is no question common to them and no issue which affects all of them alike. It is clear that the plaintiff and `other employees' are not united in interest and that there is no question of common or general interest among them which could be established by the same evidence. Joint trial of their several causes of action is not possible. Hence no right to maintain
We feel the reasoning of this case answers the principal issue to be decided here. However, in two late cases this court has reiterated the rule that if the complaint entitled the plaintiff to any relief, it is good as against a general demurrer for want of facts under § 2-1007, Burns' 1946 Replacement. Smith v. Sparks Milling Company (1942), 219 Ind. 576, 605, 39 N.E.2d 125, supra; Kimes v. City of Gary (1946), 224 Ind. 294, 307, 66 N.E.2d 888, supra. For this reason the demurrer should have been overruled.
Clearly, the appellant McKenna's individual cause of action is a separate cause from the class action. "The defendant may demur to one or more of the several causes of action alleged in the complaint, and answer as to the residue." Section 2-1012, Burns' 1946 Replacement [Acts 1881 (Spec. Sess.), ch. 38, § 90, p. 240]. The appellee could have limited the issue in the trial court by such a partial demurrer. See Pennsylvania R.R. Co. v. Sherron (1952), 230 Ind. 610, 105 N.E.2d 334; 1 Gavit, Indiana Pleading & Practice § 133, pp. 645-648.
Judgment reversed with instructions to the trial court to overrule appellee's demurrer.
Achor, C.J., Arterburn, Bobbitt and Landis, JJ., concur.
NOTE. — Reported in 140 N.E.2d 512.
"Section 1.... That 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.... Such payment shall be made for all wages earned to a date not more than ten days prior to the date of such payment.... That should any employee voluntarily leave his employment, either permanently or temporarily, such employer shall not be required to pay such employee any amount due such employee until the next usual and regular day for payment of wages, as established by such employer; ...
"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, not exceeding double the amount of wages due, 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 1 and 2, Ch. 47, Acts 1933.