Fordyce v. Gorey , 69 Ark. 344 ( 1901 )

IItjgites, J.,

(after stating the facts). We think there is reversible error in the second instruction set out herein, because there had been no ascertainment of the plaintiff’s shortage, and con-squently the amount which the railroad company owed him had not been, and could not have been, ascertained at the time of his discharge by the receivers; and this seems to have been his fault. He was laid off a few days before his discharge, which was on the Mi' of July* at -Which tibie lie was- indebted 'to the company for Aoney he' had received for''them while in-their employment as receivers/ and 'whieh lib had failed to' account'for' and turn over to' them. ’ At least, this Vas 'the contention,- which there was Evidence tending to establish: They could ,hot be. required'to pay him until it could-bo known what they owed'him, and that this could not be known seems from the evidence to have been due to his failure to report his receipts of monej's as conductor, which the evidence tends to show it was his. duty to make.

The'receivers therefore were not liable to a penalty for failure to pay his wages until they knew what was due him, or could by the exercise of .reasonable diligence have ascertained the same, for failure to pay his wages after which time only the penalty would attach, and not from the time of his discharge. ' •

The question as to tlie application of the statute to receivers of'railroads (§ 6243, Sand. & H. .Dig.) is not decided, but left open. ■ ■

This is a penal act, and should bo strictly construed. For the error in giving the second instruction, the judgment is reversed, and the cause is remanded for a new trial.