DOUGLAS HAMMILL, PLAINTIFF AND RESPONDENT, v. FOWLER A. YOUNG, D/B/A BIG SKY VETERINARY CLINIC, DEFENDANT AND APPELLANT.
No. 12930.
Supreme Court of Montana
Decided Sept. 24, 1975.
540 P.2d 971
Submitted Sept. 8, 1975.
Warden, Walterskirchen & Christiansen, Gary R. Christiansen (argued), Kalispell, for plaintiff and respondent.
MR. JUSTICE HASWELL delivered the Opinion of the Court.
In an action to recover the unpaid balance of a bonus provided in a written employment contract, the district court of Flatheаd County entered judgment in favor of plaintiff em
Defendant is a veterinary operating the Big Sky Veterinary Clinic in Whitefish, Montana. He hired another veterinary, the plaintiff, under a written employment contract dated May 15, 1969. Under the terms of this contract, defendant agreed to pay plaintiff a monthly salary plus a yearly bonus of 20% of the gross income of the veterinary clinic.
Subsequently a disagreement arose concerning the amount of bonus payable for the year July 1, 1970 to June 30, 1971. Plaintiff sued and after trial, the district court, the Honorable Robert C. Sykes presiding without a jury, entered findings of fact, conclusions of law and judgment as follows:
- For $2,907.68 as unpaid bonus,
- For $2,907.68 as a statutory penalty under
section 41-1302, R.C.M. (5% of the amount owing per day up to a maximum оf 20 days), - For $800 as reasonable attorney‘s fees under
section 41-1306, R.C.M.1947 .
Defendant appeals from the award of penalty and attorney‘s fees, but does not contest the award of $2,907.68 as the unpaid bаlance of the bonus.
The issue on appeal is whether the district court properly awarded a penalty and attorney‘s fees undеr Montana‘s Wage Payment Act,
Defendant contends that the penalty and attorney‘s fees are not collectible against him because (1) plaintiff was not an “employee” within the meaning of the Act; (2) the Act does not apply to collection of a bonus as distinguished from wаges, and (3) plaintiff as a “professional employee” is excluded from coverage under the Act. Defendant also argues that it is inequitable to charge him a penalty and attorney‘s fees for choosing to litigate the meaning of the terms used
Defendant‘s first two contentions must fail because of express definitions contained in the Act. Plaintiff was an employee within the meaning of the Act because an “‘Employee’ includes any person who works for another fоr hire“.
Defendant‘s principal contention is that “professional employees” are excluded from the coverage of the Act, and accоrdingly the penalty and attorney‘s fees provisions therein do not apply to an action filed by a veterinary.
In construing a statute, the intentiоn of the legislature is controlling.
First, the legislative history of the Act demonstrates such legislative intent. The original Wage Payment Act was рassed in 1919. Ch. 11, Laws of 1919. Section 1 of that Act required the payment of wages bi-monthly; Section 2 provided a statutory penalty for failure to pay wages when due; Section 3 required payment of accrued wages to discharged employees; Section 4 was a six month limitation on actions to recover the statutory penalty; Section 5 voided employee waivers of the benefits of the Act; Section 6 providеd for attorney fees in judgment for recovery of wages due; Section 7 was a repealer clause; and Section 8 provided an effective date.
This legislation was subsequently codified in the 1921 Codes as Sections 3084 et seq. Section 1 of the 1919 legislation was codified as Section 3084, R.C.M.1921; Section 2 as Section 3085, R.C.M.1921; Section 3 as section 3086, R.C.M.1921; and
In 1941 the legislature amended Section 3084, R.C.M.1935. Ch. 169, Laws of 1941. That part of the amendment pertinent to this case added the following sentence to the paragraph requiring bi-monthly payment of wages:
“Provisions of this Seсtion shall not apply to any professional, supervisory or technical employees, who by custom, receive their wages earned at least once monthly“. (Emphasis supplied)
The statute as amended was subsequently codified as
The foregoing legislative history manifests an express legislative approval of the division of the Wage Payment Act into separate statutes, and of the limitаtion of the “professional employees” exclusion to the statutory requirement of bi-monthly payment of wages.
Secondly, the languagе of the exclusion supports the same legislative intent. The exclusion expressly amend Section 3084, R.C.M.1935, now
Defendant‘s contention that the statutory penalty and attorney‘s fees included in the judgment are inequitable should be addressed to the legislature which enacted the law in question and provided its appliсability here. The Court may not omit what has been inserted in legislation, nor insert what has been omitted.
We decline to assess damages against defendant for an appeal without merit under Rule 32, M.R.App.Civ.P. In our view the issues on appeal are arguable and have not heretofore been decided by this Court.
We decline to award additional attorney‘s fees on appeal. We consider the attorney‘s fees and penalty heretofore imposed in the judgment sufficient to make plaintiff whole after payment of his attorney‘s fees.
The judgment of the district court is affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES DALY and JOHN C. HARRISON concur.
MR. JUSTICE CASTLES (dissenting):
I dissent. This, to me, is an obvious joint enterprise regardless of terminology, and a professional veterinarian should be excluded from coverage as the statute clearly states.