Princeton Coal Co. v. Dorth , 191 Ind. 615 ( 1921 )

On Petition for Rehearing.

Townsend, J.

Appellee contends that the principal opinion erred in holding that he presented no question as to the findings being outside the issue, and points to our language where we state: “But he nowhere points to any exceptions saved. Therefore he has waived his right to complain.”

7. Appellee in his original brief referred to cross-error; but he nowhere pointed out an exception to any conclusion of law on which he assigned that cross-error. It is incumbent upon one claiming error to point to the record showing exceptions saved. The first conclusion that the court reached was that appellant was entitled to a credit of $102.55, paid for goods at a store. An exception to this conclusion of law would have presented a question for us to consider; but appellee in his original brief did not refer us to any such exception saved. We do not disagree with the authorities cited by appellee, to the effect that findings may not be outside the issue; but where appellee had an opportunity to reserve an exception to one of the court’s conclusions, which exception would have raised this question, he should have done so, and should have pointed it out in his original brief.

8. We do not mean to imply that the findings are outside the issue. Appellee by the exhibit which he attached to his complaint, showed item by item the deductions from his wages and the dates thereof. His point would be, if presented, that he was surprised by not being confronted with an answer of accord and satisfaction instead of payment. This amounts to claiming surprise at his own bijl of particulars. A rule fails, where reason for its application fails.

9. Appellee contends again in his petition for rehearing, that §7981 Burns 1914, s.wpra, controls this case. That is to say, that it shall be unlawful to enter into a contract to pay an employe under the circumstances of this case, in anything but lawful money of the United States, and that any contract to the contrary shall be void. The answer to this contention is, that it has no application. The contract between appellant and appellee was to pay in money. Making a contract which establishes the relation of employer and employe, is one thing;.mutually settling what shall be paid after the work has been performed, before pay is due, is a very different thing. This is clearly indicated by Judge Elliott, in the opinion in Hancock v. Yaden (1889), 121 Ind. 366, at page 368, where he limited the opinion by this language: “We are not here' concerned with the question of what parties may do after services have been performed, for here the question is, what contract may they make before the relation of employer and employe begins?”

10. Appellee further insists in the petition for rehearing that the facts found warrant the inference that he made demand for the payment of his wages each week. On the contrary the findings expressly show that the discounts were always 15 to 16 days apart during all of the time covered by the findings.

Statutes of the character relied on here are in derogation of common law. They give a new right to the employe. They impose a new and additional burden upon the employer. One section of the statute requires weekly payment of wages, if demanded; another authorizes the employer to pay on the tenth and twenty-fifth of' each month. If appellee wants to exclude himself from the operation of one statute and invoke the operation of the other, it is his duty to do so by a clear and explicit demand. It is not for this court to become paternalistic to extend the meaning of these statutes beyond the clear legislative intent. They are not only in derogation of common law, but are also penal.

Appellant and appellee operated under §7989a Burns 1914, supra, which provides for semi-monthly payments. If appellee wanted to bring himself within §7981, supra, which provides for weekly payment, he did not do so by asking for payments semi-monthly.

Petition for rehearing overruled.

Ewbank, C. J., dissenting.