McKENNA, ETC. ET AL. v. STANDARD OIL CO., ETC.

EMMERT, J.

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 of record in the sum of $326,400.00. The prayer was for judgment in behalf of appellant McKenna and the members of the class against the appellee in the sum of $1,632,000.00 plus attorneys' fees in the sum of $326,400.00.

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).1

Chapter 95 of the 1939 Acts was clearly intended to supplement the provisions of Ch. 47 of the 1933 Acts.2 Neither Act authorized an employee to bring a class action for work and labor, and we cannot hold that the appellant and his class proceed under any statute specifically authorizing such an action. If the statutes had contained provisions similar to the Fair Labor Standards Act a different issue would be presented. 29 U.S.C.A. § 216.3 But even under this specific statutory authorization the federal courts have termed such an action a "spurious" class action. Pentland v. Dravo Corporation (1945), 152 F.2d 851.4 Under § 5 of the 1939 Acts, § 40-128, Burns' 1952 Replacement, the commissioner of labor was authorized to bring a class action somewhat similar to the one provided in the Fair Labor Standards Act, but there is nothing in this Act or the 1933 Act which makes action by the commissioner of labor the exclusive remedy under the Act.5

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. Board of Comrs. of Vanderburgh County v. Sanders (1940), 218 Ind. 43, 47, 30 N.E.2d 713, 131 A.L.R. 1048. In prior opinions of this court we have noticed that many of the cases on class action seem difficult to reconcile with many other cases on the subject matter. Smith v. Sparks Milling Co. (1942), 219 Ind. 576, 39 N.E.2d 125; Kimes v. City of Gary (1946), 224 Ind. 294, 66 N.E.2d 888. However, the Indiana cases do require some common interest among all the plaintiffs or among the defendants centering in the point in issue in the cause. Tate v. Ohio and Mississippi Railroad Co. (1858), 10 Ind. 174, 175. This case laid down the rule that "Several plaintiffs, by one complaint, cannot demand several matters of relief which are plainly distinct and unconnected...."

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 appellants do not allege any common interest in any collective bargaining agreement, nor does McKenna allege that he and any other member of his class together had a contract with the appellee. As before noted, he does not allege any statute specifically authorizing this class action. He does not sue for damages for the breach of any express contract, for he attempts to plead himself within the 1933 and 1939 Acts. U.S. Reduction Company v. Nussbaum (1942), 112 Ind.App. 330, 42 N.E.2d 403.

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 this action arises under Section 11257. Trustees v. Thoman, 51 Ohio St. 285, 37 N.E. 523; Stevens v. Cincinnati Times-Star Co., 72 Ohio St. 112, 154, 73 N.E. 1058, 106 Am. St. Rep. 586; Davies v. Columbia Gas & Electric Corp., 151 Ohio St. 417, 86 N.E.2d 603."

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.