Mulholland v. Wood, Brown & Co. , 166 Pa. 486 ( 1895 )

Opinion by

Mb. Justice Fell,

The proceedings in this case were designed to raise the single question whether certain creditors of Wood, Brown & Co. are entitled under the provisions of the act of May 12,1891, to a preference for the amounts due them for wages. The garnishee is the assignee of the defendants for the benefit of their creditors, büt as a decision of the question raised is desired by all parties in interest no objection has been made to the manner in which the plaintiff attempted to enforce the right claimed. The contract on which the claim is based is in writing as follows : “ I, J. W. Mulholland, hereby engage with Mess. Wood, Brown & Co., of Phila., to sell goods giving my entire time and attention to their interests, and being at all times subject to the rules and regulations of the house on the following terms for the year 1893. House and road commission on all approved sales, I paying my own expenses. T __ ,, F J J ^

T __ ,, “J. W. Mulholland.”

The part of the act to be considered provides: “ All moneys that may be due or hereafter become due for labor and services rendered by any minor or mechanic, servant girls at hotels, boarding houses, restaurants or in private families, or any other servant and helper in and about said houses of entertainment and private families; porter, hostler or any other person employed in and about livery stables and hotels; laundrymen or washerwomen, seamster or seamstress employed by merchant tailors or by any other person; milliner, dressmaker, clothier, shirtmaker, or clerk employed in stores or elsewhere; hand laborer, including farm laborer or any other kind of laborer; printer, apprentice, and all other tradesmen hired for wages or salary from any person or persons—shall be preferred,” etc.

Wood, Brown & Co. were wholesale dealers in dry goods. The-plaintiff was to sell goods, paying his own expenses and receiving house and road commissions. His compensation was entirely by commissions on approved sales whether made upon the road or at the house by him, or by any one to customers whom he had secured. He was clearly a traveling salesman. It is claimed however that he is within the meaning of the act as a “ clerk employed in a store or elsewhere.”

The act of May 12, 1891, is an amendment of the act of June 13,1883, which was an amendment of the act of April 9, 1872. Each successive act enlarges the number of persons intended to be benefited. The first act included but four classes, the second twenty-three, and the third twenty-five. Each act includes clerks, and in the third all limitations as to the business of the employer and places of employment are removed as to them. In Sproul v. Murray, 156 Pa. 293, it was held that the act of 1883 should receive an enlarged or remedial construction in ascertaining whether certain persons specifically named were within its provisions. The act of 1872 limited the right of preference by naming the classes of employers whose property was subject to the right. The subsequent act enlarged the class of employees, but not that of employers. It was held that the latter class was enlarged by necessary implication to correspond with the former. This construction gave effect to the obvious intent of the legislature, and was necessary to make the act sensible. The question now before us is whether the right has been conferred, and that is to be determined by the language of the statute. The original meaning of the word clerk has become so enlarged that in modern usage it may include a salesman in a retail store. It cannot however be extended to include one whose business is to travel and secure customers, and whose compensation is by commissions on sales affected by or through him. Such a person is not an assistant in the store or business of his employer. He is not employed to keep accounts or to assist in the store or elsewhere in the management of the business. At the time of the passage of the act traveling salesmen were a well-known and distinct class of employees. If it was the intention to extend to them the preference given by the act, it is to be presumed that they would have been included with the classes of persons named.

The judgment is reversed.