Swanson v. Gnose , 106 Mont. 262 ( 1938 )

I dissent. Plaintiff in his complaint averred that he performed "work, labor and services" for the deceased, who "promised and agreed" to pay plaintiff "for such work, labor and services" at the reasonable value thereof, and "the reasonable value of the services so rendered" by plaintiff was $5 per day. The same averments, in identical language, are found in the creditor's claim.

The answer admitted the performance of work, labor and services and the agreement to pay the reasonable value of such work, labor and services. It, however, raised issues as to the value of these services and also as to the number of days of service. Defendant, by answer, also alleged payment.

The bill of exceptions contains none of the evidence offered at the trial. Hence, from that source we are unable to determine the nature of the work, labor and services performed by the plaintiff. In the memorandum of costs and the affidavit filed in support thereof, it is recited that the work, labor and services were performed in the capacity of blacksmith, stull, and timber cutter, and timber camp foreman.

The plaintiff sued for $11,692.50. The verdict was for $3,399.46. In view of the state of the pleadings, the only logical conclusion is that the jury must have found, in effect, that plaintiff had been paid $8,293.04. How much of plaintiff's claim was for his labor as a blacksmith, how much as a stull and timber cutter, and how much for his services as a timber camp foreman is not disclosed by the record.

Section 3084, Revised Codes, applies only to wages due for labor. The term "wages" is used to denote the compensation of laborers. (Dayton v. Ewart, 28 Mont. 153, 72 P. 420, 98 Am. St. Rep. 549.)

In McBride v. School District, 88 Mont. 110, 290 P. 252,255, this court said: "Sections 3084 and 3085, above, were intended only to apply to the semimonthly payment of wages due from all `employers of labor,' and it seems reasonably clear that the Legislature did not intend that they should apply in the case of every officer or person receiving a fixed compensation for services rendered. We are of the opinion that the provisions relied upon have no application to the case at bar." The court there held that a school teacher did not perform labor within the meaning of these sections; that a disfinitions exists between labor and services. While some definitions of "labor" are amply broad to include the services of a school teacher, nevertheless this court there applied a more restricted meaning to the term as it appears in the statute.

One who performs labor is a laborer. A laborer is one who does physical labor, one who works at a toilsome occupation. (Webster's New International Dictionary, 2d ed.; Meands v.Park, 95 Me. 527, 50 A. 706.) In the case just cited it was held that, under the facts, a foreman was not a laborer. Under many factual situations a foreman is a laborer, depending upon the work actually done, and under other situations a foreman is not a laborer.

We are unable to ascertain from the record here how long plaintiff was a foreman, or whether, while acting as a foreman, he was in fact performing labor. If, while acting as foreman, he performed no labor, he did not come within the purview of these sections. For all that appears from the record, the jury may have found that plaintiff's claim may have been paid in its entirety for the labor performed, and that the residue owing was entirely for services as a foreman. If such be the case, he was not entitled to recover an attorney's fee. Without the evidence in the case before us, we can only conjecture as to whether plaintiff was entitled to an attorney's fee, assuming that the case otherwise comes within the statute.

The trial judge heard the evidence and ruled on the motion to tax costs, refusing to allow the item of attorney's fee. The order of the district court is to be presumed to be correct (Baker v. Citizens' State Bank of St. Peter, 81 Mont. 543,264 P. 675; State ex rel. Woare v. Board, 70 Mont. 252,225 P. 389), and the burden of showing reversible error rests upon the party challenging the order (State ex rel. Wentworth v.Baker, 101 Mont. 226, 53 P.2d 440). In view of the condition of the record before us, plaintiff has failed to overcome this presumption.

The majority opinion cites and relies upon the case ofGardiner v. Eclipse Grocery Co., 72 Mont. 540, 234 P. 490, as authority for allowing an attorney's fee in this case. The only question there decided pertinent here was whether an attorney's fee could be recovered without an allegation claiming it in the complaint. The point at issue on this appeal is the right to recover an attorney's fee. True, there, as here, the action was on the quantum meruit.

The purpose of this statute is to permit the recovery of attorneys' fees where a fixed compensation is due and not paid within the time provided in sections 3084 or 3086. It is not the intention to deny or preclude the right of an employer to interpose a valid counterclaim or defense to the claim of a laborer. (Goodell v. Pope-Shenon Min. Co., 36 Idaho, 427,212 P. 342.) The object of these statutes is to require employers of labor to pay their employees promptly, and to declare that the laborer is worthy of his hire and should not be required to wait an unreasonable time for money he has earned. (Olson v. IdoraHill Min. Co., 28 Idaho, 504, 155 P. 291.) These statutes were enacted for the protection of the wage earner, and not intended as a snare to entrap the unwary employer. (Hall v. Chicago,R.I. P. Ry. Co., 96 Ark. 634, 132 S.W. 911.)

For the foregoing reasons, I think the judgment should be affirmed.