Oppenheimer v. P. D. Robinson

SHINN, P. J.

The present action is against Southern Pacific Company and P. D. Robinson to recover unpaid wages and a statutory penalty for the wilful failure to pay said wages on plaintiff’s discharge from employment. Defendants demurred jointly to the amended complaint. The court sustained Robinson’s special demurrer without leave to amend and entered judgment in his favor. It also sustained Southern Pacific’s demurrer with leave to amend, but the record does not disclose the ground or grounds on which the company’s demurrer was sustained. Plaintiff declined to amend further against Southern Pacific and judgment of dismissal followed. Plaintiff appeals from the judgments dismissing the action.

The amended complaint contains two causes of action. The material allegations of the first cause of action are the following: Plaintiff was employed by Southern Pacific Company. P. D. Robinson is a superintendent of Southern Pacific Company, acting within the scope of his authority and with the full knowledge, consent and ratification of the company. On August 2, 1955, defendants discharged plaintiff from his employment and wilfully failed to pay him any wages which were then due, owing and accrued; by reason thereof, plaintiff has been damaged in the sum of $6,000. The second cause of

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action incorporates the preceding allegations by reference. It also alleges that defendants wilfully failed to pay plaintiff any penalty wages and that by reason thereof he is entitled to a statutory penalty in the sum of $6,000. The prayer is for $6,000 on each count and there is no prayer for judgment in the amount of wages earned.

Defendants interposed a general and special demurrer to each cause of action; the special demurrer specified a number of respects in which the amended complaint was uncertain and ambiguous, viz., it did not allege the amount of wages plaintiff earned while in the company’s employment nor the amount of wages due at the time of his discharge; it did not allege whether he made a demand for penalty wages, and, if so, the amount demanded and the amount defendants refused to pay; it did not allege how or in what manner plaintiff was entitled to $6,000 damages or a $6,000 penalty.

Plaintiff states in his brief that the present action is one for unpaid wages and a statutory penalty, and not for wrongful discharge in violation of an employment contract. His rights are therefore governed by sections 200 through 272 of the Labor Code, which relate to the payment of employees’ wages and to civil and criminal penalties resulting from a wilful failure to pay such wages when due.