St. Louis, Iron Mountain & Southern Railway Co. v. McClerkin

114 S.W. 240, 88 Ark. 277, 1908 Ark. LEXIS 174

• Court: Supreme Court of Arkansas
• Decided: November 30, 1908
• Status: Published

Opinion

Wood, J.

(after stating the facts). Before appellee can recover the penalty claimed by him under the statute quoted above, he must show that he has strictly complied with its terms, for the statute is highly penal.

The appellee does not show that he made a request “of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station where a regular agent is kept.”

It appears that he (appellee) was employed by one Wright, who was the division agent having supervision of agents. He was, therefore, the “foreman” of appellee or “the keeper of his time,” in the meaning of the statute. At least it must be so held, in the absence of any evidence that it was the duty of some one else to keep appellee’s time. The evidence does not show that appellee made any request of Wright. Appellee made a demand of Lindsay, the station agent at Monticello, to send in his time, but it is not shown that this was the duty of Lindsay. If it were conceded that demand made upon Lorton, the superintendent, would be sufficient, still it is not shown that any such demand as the statute requires was made of him. He was not notified to send the money to any particular station “where a regular agent is kept.”

The fact that a voucher was received at Monticello, a regular station, some three months after appellee’s employment ceased, does not show that the superintendent was notified to send the money to Monticello. Appellee says he wrote three letters, but he sets out only one as the evidence of his demand. This was written from Memphis, three months after appellee’s employment ceased, and mentions no station where the money is to be sent. Nothing can be taken by intendment to show compliance with statutes of this kind.

The case is. ruled by the recent decision of this court in St. Louis, I. M. & S. Ry. Co. v. Bailey, 87 Ark. 132.

The appellee’s evidence fails to establish his right to a penalty, but it does establish his claim for wages due. The judgment will therefore be reversed and modified by remitting the penalty, and judgment will be entered here for the sum of $52.5° with interest from June 11, 1907.