Opinion
No. 97263
1947-04-11
HENRY v. MANGOLD.
Pickrel, Schaeffer & Ebeling, of Dayton, for plaintiff. Irvin C. Delscamp, of Dayton, for defendant.
Action by C. A. Henry against Herman Mangold, doing business as the American Machine & Tool Company, to recover the difference between wages which defendant allegedly agreed to pay the plaintiff and the amount actually paid. On motion by defendant to dissolve attachment and garnishment issued against the defendant and a bank, on ground that affidavit in attachment was untrue, and that attachment had been wrongfully obtained.
Motion overruled.
Order affirmed 81 N.E.2d 345.Pickrel, Schaeffer & Ebeling, of Dayton, for plaintiff. Irvin C. Delscamp, of Dayton, for defendant.
MARTIN, Judge.
This cause comes before the court on the motion of the defendant to dissolve the attachment and garnishment issued herein against the defendant and the Third National Bank & Trust Company, for the reasons that the affidavit in attachment is untrue, and that the attachment has been wrongfully obtained. This motion was submitted to the court on the affidavits of Margaret Z. Ankney and Herman Mangold, on the testimony of plaintiff and one Leland E. Cromwell, and on the arguments and authorities submitted by counsel.
Defendant contends that plaintiff did not engage in either work or labor as an employee of defendant, but that the job for which he was employed involved the use of a high degree of skill and professional knowledge on the part of plaintiff in designing, drafting, and supervising the production of certain tools that he was directed to make by defendant. Defendant also claims that he is not indebted to plaintiff in any sum whatsoever, and that plaintiff has been paid in full for any and all services he rendered defendant as an employee.
The affidavit in attachment sufficiently sets forth the grounds of attachment as required by Sections 11819 and 11820, G.C., although the statement therein that plaintiff's claim is for work and wages is surplusage as to the words ‘and wages,’ inasmuch as Section 11819, G.C., authorizesan attachment for work or labor, or necessaries. Inasmuch as there is a bona fide dispute between plaintiff and defendant as to whether there is anything due plaintiff from defendant as wages, the court cannot dissolve the attachment at this stage of the proceedings on the grounds that there is nothing due and owing plaintiff, and that issue will have to be determined when the case is tried on its merits.
Defendant's principal contention is that the work done by plaintiff for defendant is neither work nor labor within the meaning of those terms as used in Section 11819, G.C., but that the services performed by plaintiff for defendant were of a professional, skilled, engineering nature, and cannot be designated as work or labor.
The language of paragraph 11 of Section 11819, G.C., to wit, ‘that the claim is for work or labor, or for necessaries,’ is reasonably susceptible of the interpretation that the word ‘work’ is used in a broader, more comprehensive sense than the word ‘labor,’ inasmuch as the word ‘or’ separates the two words, indicating that if services rendered fall within the meaning of either, that an attachment may be had if the other requisites of a valid attachment are present.
Plaintiff's ground of attachment herein is ‘work’ rather than ‘labor.’ The word ‘work’ has been defined in Webster's New International Dictionary, 2nd Edition, as follows:
‘To exert oneself physically or mentally, for a purpose. To exert oneself thus in doing something undertaken chiefly for gain, for improvement of one's material, intellectual or physical condition, as distinguished from something undertaken primarily for pleasure, sport or immediate gratification. The services rendered by the laborer operative and artisan in the production of wealth as distinguished from those whose exertion is primarily and almost entirely mental.’
The Illinois Court of Appeals, in the case of Reese v. Sanitary District of Chicago, 272 Ill.App. 315, held that work is ‘exertion or effort directed toward an end.’
The court in the case of State v. Rose, 125 La. 462, 51 So. 496, 26 L.R.A., N.S., 821, stated:
‘The word ‘work’ has a much more comprehensive meaning than the term ‘labor’, and has been defined to mean to exert one's self for a purpose, to put forth effort for the attainment of an object, to be engaged in the performance of a task, duty, or the like; and, as thus defined, covers all forms of physical or mental exertions, or both combined, for the attainment of some object other than recreation or amusement.'
The courts in the cases of Phoenix Furniture Co. v. Put-in-Bay Hotel Co., C.C.N.D. Ohio, 66 F. 683, and Gaastra, etc. v. Bishops Lodge Co., 35 N.M. 396, 299 P. 347, 349, stated:
‘There is no reason in equity or in law why the architect who conceives and puts upon the paper the design for such an immense building * * *, and who puts upon paper with such minuteness of detail the specifications and drawings as to enable any one skilled in such business to erect, with perfect proportions and proper stability, such a mammoth structure, should not be protected in his contribution to the completion of such work, as well as the carpenter, and plumber, the painter, or the frescoer who performs manual labor.’
The court in the Phoenix Furniture Company case , supra, in construing paragraph 135 of the 1894 Ohio Laws, giving a lien to a person who performs labor or furnishes machinery for erecting, altering, repairing or removing of a house, etc., under a contract, held further in determining that the architect was entitled to a lien for labor:
‘The court certainly ought not to strain the statute to exclude labor of this high character and grade, unless it is plainly the intent of the legislature that it should bear such interpretation. The master has entered into the discussion of this question with detail, referring to the authorities and statutes, and I fully concur in his finding that the architect in this case is entitled to a lien not only for the plans and specifications, but for the labor and assistance in the construction of the building in pursuanceof these plans; for it appears from the testimony very clearly that these architects were not called upon to design a plan to be used at some indefinite location, and at some future time not fixed, and in pursuance of a scheme wholly speculative, but they were called upon to draw plans and specifications for this building, to be located at this place, and in pursuance of a contract having a substantial financial basis.’
The evidence introduced shows that the plaintiff was employed by the defendant as a tool designer, or designing engineer for tools and other products. Plaintiff states that his work requires a high degree of skill, training and experience, that it involves the detailed drafting of plans for the manufacture of tools designed to produce parts for certain products. That in addition to designing tools, etc., plaintiff checked and inspected the work done by the toolmakers in carrying out his designs, to see that the work was correct before it left defendant's shop or the shop of any subcontractor. That plaintiff is not a professional engineer.
Plaintiff claims that defendant agreed to pay him $90.00 per week, and admits that he was paid that amount from March 1st through May 10, 1946. He claims, however, that from June 29th through November 9th he was employed at the rate of $90 per week, but that he was paid only $50 per week, leaving a difference of $40 per week, or $1,230 due and owing to him.
The inference from all the evidence is that plaintiff, as an employee of the defendant, was subject to the instructions and directions of defendant on every job of designing undertaken by plaintiff. In the tool industry it is common knowledge that tool designing is the first operation in the production of tools, and the blueprints and specifications of the tool desiger are indispensably necessary to the toolmaker who carries the designs into effect in the production of tools. In the larger industrial operations the tool designer is under the general supervision of the plant engineer, while in the smaller, he is under the supervision of the factory manager, plant superintendent, general manager, or owner of the business.
The engineering and designing of tools is not the function of the executive officers of a tool manufacturing concern. It is the function of specialized and skilled workmen. The designer, in short, is the first link in the chain of production. His work is closely allied to that of the toolmaker, although he presumably is more skilled than the average toolmaker. Certainly no one would contend that the work performed by a toolmaker is not work or labor within the meaning of the words as used in paragraph 11 of Section 11819, G.C. Since the engineering designer is neither an executive nor a professional engineer within the ordinary and accepted meanings of those words, it is obvious that the function of the designer is a part of production rather than management or the executive function.
Certainly the minute details of drafting and designing require the expenditure of much physical as well as much mental energy. Presumably the plaintiff worked on the jobs that were referred to him in accordance with the instructions given by the defendant. It cannot be inferred from the evidence that he operated as an independent contractor on a professional basis on any job, with full discretion to execute the job as he saw fit, but that since he was working for a weekly salary, he at all times was subject to the directions and instructions of his employer on any given job.
Defendant has cited the following cases:
Dorris v. High Grove Park Land Co., 1 O.L.A. 167, in which the court held that the claim of a contractor for damages for breach of contract and payment for partial performance is not a claim for work and labor.
Fiderius v. Buchan Co., 2 O.L.A. 501, in which the court held that the services performed by the superintendent of a company in charge of hiring and discharging employees, estimating contracts, adjusting disputes, and carrying on correspondence, were not work or labor within the meaning of Section 11819, G.C.
Gagliardi v. Pirrone, 7 O.L.A. 219, in which the court held that managing and training a professional boxer does not constitute work or labor.
Northern Ohio Printing Co. v. Investment Service, Inc., 8 O.L.A. 475, in which the court held that the services of an accountant in rendering a tax report and making a business survey and audit were not work or labor within the meaning of Section 11819, G.C.
Republic Tool & Manufacturing Co. v. Lenarz, 17 Ohio App. 500, in which the court says that the services of executive officers of a corporation are not work or labor.
In all of the cases cited by defendant, the decisions were based on the principle that the services rendered by the executive officers or managers of a business, or by a person acting in a professional capacity, are not work or labor. However, the court in the case of Northern Ohio Gas Appliance Co. v. Hallett, 16 Ohio Cir.Ct. R.N.S., 342, held that a claim for commissions on sales earned by plaintiff on a percentage basis was work or labor within the meaning of the Ohio law. The Federal District Court for the Northern District of Ohio, in the Pheonix Furniture Co. case, supra, held that the services of an architect in drawing plans and specifications were labor under paragraph 135 of the 1894 Ohio Laws.
For the reasons hereinabove set forth the court will overrule defendant's motion to dissolve the attachment herein. An entry may be prepared accordingly.