Westlaw Us Cases

Supreme Court of Georgia.

BRISCOE et al.

v.

MONTGOMERY et al.

March 19, 1894.

Syllabus by the Court.

A "commercial traveler," whose business it is to travel and sell goods forhis employer, though employed and paid for his services by the day, is not a"day laborer," in the sense in which these words are used in section 3554 ofthe Code, and his wages are not exempt from the process of garnishment.

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by Montgomery & Co. against J. D. Briscoe. To a judgment sustainingan attachment issued by plaintiffs, said Briscoe and garnishees bring error.Affirmed.

West Headnotes

Exemptions 163 k 48(3)

163 Exemptions

163I Nature and Extent

163I(C) Property and Rights Exempt

163k48 Earnings, Wages, or Salaries

163k48(3) k. Wages of Mechanics, Laborers, and Seamen. MostCited Cases

One whose business is to travel and sell goods for his employer, though paidfor his services by the day, is not a "day laborer," within Code, s 3554,exempting the wages of such laborers from garnishment.

*41 Harper Hamilton and J. B. F. Lumpkin, for plaintiffs in error.

Dean & Smith and A. G. Ewing, for defendant in error.

LUMPKIN, J.

It was held in Cleghorn v. Saussy, 51 Ga. 576, that the monthly wages of aforwarding clerk in the employment of a railroad company were not subject tothe process of garnishment. An examination of the evidence in that case willshow that the services of this clerk in the performance of his duties were suchas to require at his hands, if not actual "manual labor," in the commonacceptation of the term, certainly labor somewhat of that character.

InHightower v. Slaton, 54 Ga. 108, it was held that the monthly salary of ateacher employed in a public school could not be reached by garnishment. Thisdecision seems to rest upon the ground that to allow this to be done would becontrary to public policy, because it would tend to deprive the public of thebenefit of the teacher's valuable services; and, besides, it would also beagainst public policy to allow the secretary and treasurer of the board ofeducation, by whom, in his official capacity, the wages of the teacher werepaid, to be subjected to the process of garnishment.

Lamar v. Chisholm, 77 Ga.306, rules that the wages of a clerk and bookkeeper are not subject togarnishment. This decision was made on the authority of Smith v. Johnston, 71Ga. 748, and the cases there cited. It is obvious that in the discharge of hisduties a clerk and bookkeeper must necessarily perform a considerable amount ofmanual labor. On the same line is the case of Abrahams v. Anderson, 80 Ga.570, 5 S. E. 778, which cites, in addition to the above cases, other decisionsby this court in which section 3554 of the Code has been held applicable. Weare not disposed to extend further the doctrine of these cases. In the case atbar it did not affirmatively appear that Briscoe performed any manual labor inthe conduct of his business as a traveling salesman for the company herepresented. He was employed as a commercial traveler, to sell goods for thiscompany, and his business called him anywhere in the United States the companymight require him to go. In point of fact, he traveled for it and sold goodsin Georgia, Alabama, Mississippi, Arkansas, and Texas. Under these facts, wehardly think he properly falls within the class designated as "day laborers" insection 3554 of the Code, although, by his contract with the company, he waspaid by the day. Indeed, a gentleman of his profession occupies a much higherstation, socially and commercially, than that of a mere "day laborer," as thatterm is commonly understood. Judgment affirmed.

Ga. 1894.

Briscoe v. Montgomery

93 Ga. 602, 20 S.E. 40

END OF DOCUMENT

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Supreme Court of Louisiana.

STATE ex rel. I. X. L. GROCERY CO., Limited,

v.

LAND, Judge.

No. 14,457.FN1

FN1 Rehearing denied June 30, 1902.

June 16, 1902.

Application for writs of certiorari and prohibition by the state, on therelation of the I. X. L. Grocery Company, Limited, against A. D. Land, judge ofthe First judicial district court. Judgment reversed.

West Headnotes


163 Exemptions





The exemption from seizure for debt protects laborers on farms and in

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factories and other places where workmen possess no particular skill.


163 Exemptions





Mechanical engineers, electrical engineers, clerks, cashiers, bookkeepers,and that class of employees whose employment is associated with mental laborand skill, are not laborers, within St.1876, No. 79, amending Code Prac. art.644 (LSA-C.C.P. art. 2253), exempting from seizure for debt the wages oflaborers.

Syllabus by the Court

1. Mechanical engineers, electrical engineers, clerks, agents, cashiers ofbanks, bookkeepers, and all that class of employes whose employment isassociated with mental labor and skill, are not considered as laborers.

2. The exemption from seizure protects laborers on farms, plantations,factories, and other places, where workmen possess no particular skill withouttrade labor. The skilled labor in trades is not exempt.

*513 **433 David Thompson Land, for relator.

Respondent judge (Leonard, Randolph & Rendall, of counsel), pro se.

BREAUX, J.

Exemption vel non from seizure for debt of the wages of a locomotiveengineer under the provisions of statute No. 79 of 1876, amending andre-enacting article 644 of the Code of Practice, is the issue before us fordecision. A mechanical engineer running a passenger train is one who possessesskill and expertness. His position is highly responsible, and requiresjudgment, attention, and the conscientious discharge of duty. His characterand reputation are fair subjects of inquiry when he presents himself foremployment, as well as the training and experience he has had. The statuteexempts 'laborer's wages,' a term of very broad meaning, it is true, but itremains that the skilled mechanic thoroughly versed in all the details andintricacies of his art is not to be compared with a laborer who hires himself

out to serve on plantations, or to work and toil in manufactories as a mereservant, subject, without question, to the will and direction of the master.The former is frequently consulted in matters of the utmost importance, and hissuggestions nearly always considered and heeded. We are only concerned withthe words 'laborer's wages,' and whether or not the wages of the mastermechanic in charge of a passenger train are exempt. We do not think they are,and in our view, he is not a laborer within the meaning of the statute. Toillustrate, we will mention that his coal heaver, who throws over the coal fromthe bin to the furnace, is exempt, but not the mechanic whose knowledge,trained eye and hand are relied on to protect the hundreds of passengers whosesafety depends on his skill and duty intelligently performed. He commandsthose about him whenever necessary in the performance of his work. He is anemploye, and not a mere laborer. He is not a mere laborer, any more than thehighly trained electrical engineer, or any other trained tradesman who receivessalary or wages. The following is an authority in point: 'Artificers,handicraftsmen, or miners, etc., do not necessarily or properly fall under thedenomination of laborers, there being, as I take it, a known distinctionbetween a journeyman in any art, trade, or mystery or other workmen employed inthe different branches of it and a laborer.' Lowther v. Radnor, 8 East, 124.Referring to Webster's definition, it is said that a laborer is one who worksat a toilsome occupation; a man who does work requiring little *514 skill, asdistinguished from an artisan. 18 Am. & Eng. Enc. Law (2d Ed.) p. 71, andauthorities cited in support of note 4; Railway Co. v. Baker, 14 Kan. 563. Acivil engineer is not a laborer or workman. Railroad Co. v. Leuffer, 84 Pa.168, 24 Am. Rep. 189. Worcester defines a laborer to be 'one who labors'; oneregularly employed at some hard labor; a workman; an operative; often said ofone who gets a livelihood by coarse manual labor as distinguished from anartisan or professional man. Id. 'Clerks, agents, cashiers of banks, and allthat class of employes where employment is associated with mental labor andskill, were **434 not considered laborers;' citing Railroad Co. v. Callahan,49 Ga. 511; Oliver v. Boehm, 63 Ga. 172; Richardson v. Langston, 68 Ga. 658;Hinton v. Goode, 73 Ga. 234. It has been said that such and similar statutesare presumably intended to protect a class of men who are ill fitted to protectthemselves, men who are dependent upon the fruits of their daily toil for thedaily subsistence of themselves and their families, and that they should not beextended by forced construction so as to include a class of men who arecompetent to take care of themselves, and need no such protection. 'Muzzle notthe ox which treadeth out the corn,' denotes a subdivision in the great army ofindustry which does not include the energetic, self-reliant mechanic of thiscountry.

The opinions of our learned Brother of the district court always arrest ourattention and command our consideration. We have seldom had occasion to differfrom his views. In this case our premises and the authorities at hand,different from his, have led us to a different conclusion, and we are thereforeconstrained to write a different judgment. It is therefore ordered, adjudged,and decreed that the writs of certiorari and prohibition be perpetuated, andthe judgment of the district court in this case is avoided, reversed, andannulled, and the judgment rendered by the city court is reinstated, at costs

of the judgment debtor.

La. 1902

State ex rel. I.X.L. Grocery Co. v. Land

58 L.R.A. 407, 108 La. 512, 32 So. 433, 92 Am.St.Rep. 392

END OF DOCUMENT



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Citation Text: 32 So. 433

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Supreme Court of Minnesota.

WILDNER

v

FERGUSON.

Nov. 3O, 1889.

**795 (Syllabus by the Court.)

**794 1. *112 Where a garnishee proceeding is to be determined on thedisclosure alone, no supplemental complaint being filed, and no claim made by athird person, the statute does not contemplate any findings of fact.

2. Whether one is a "laboring man or woman," within subdivision 11, s 310,c. 66, Gen. St., exempting wages, is, the kind of work done being shown, aquestion of law, and not of fact.

3. That subdivision means only those whose work is manual.


4. An agent who sells goods by sample is not within its meaning.

Appeal from municipal court of Minneapolis; MAHONEY, Judge.

West Headnotes


163 Exemptions





An agent who sells goods by sample does not come within the meaning ofGen.St. c. 66, s 310, exempting the wages of any "laboring man or woman."


163 Exemptions





Exemptions 163 k 150

163 Exemptions

163VI Protection and Enforcement of Rights

163k150 k. Trial. Most Cited Cases

Whether one is a "laboring man or woman," within Gen.St. c. 66, s 310, subd.11, exempting wages, is, the kind of work done being shown, a question of law,and not of fact.


163 Exemptions





That subdivision means only those whose work is manual.

Garnishment 189 k 173

189 Garnishment

189VI Proceedings to Support or Enforce

189k166 Trial of Issues Between Plaintiff and Garnishee

189k173 k. Verdict and Findings. Most Cited Cases

Garnishment 189 k 180

189 Garnishment

189VI Proceedings to Support or Enforce

189k174 Judgment Against Garnishee

189k180 k. On Answer. Most Cited Cases

Where a garnishee proceeding is to be determined on the disclosure alone, nosupplemental complaint being filed, and no claim made by a third person, thestatute does not contemplate any findings of fact.

*113 Noyes & McGee, for appellant.

R. H. Day, for respondent.

GILFILLAN, C. J.

This is a proceeding in garnishment, the debtor defendant appealing from thejudgment of the court below against the garnishee defendant. The point made byappellant is that the debt reached by the garnishment, being for wages due theappellant, was exempt, under subdivision 11, s 310, c. 66, Gen. St. After the

court below had filed its decision, directing judgment for the plaintiff, theappellant requested it to find whether, at the times covered by thegarnishment, the appellant was a laboring man, within the meaning ofsubdivision 11, and thereupon the court found as a fact that he was. Theappellant claims that that finding is conclusive upon the point. There are tworeasons why it is not so: First. That the statute regulating garnishments, asit allows judgment against the garnishee on the disclosure alone, only when thefull disclosure amounts to an admission of indebtedness, or of the possessionor control of property, etc., of the defendant, does not contemplate a findingof facts, as in ordinary actions. The disclosure is not the same as a trial ofdisputed facts in ordinary actions. Where issues are made on a supplementarycomplaint filed, and perhaps where a claim is made by a third person, a trialmust be had as in a civil action, and, if the trial is by the court, it oughtprobably to state its findings of fact as in ordinary actions. Where thedecision of the court below is upon the disclosure alone, it is that we mustlook to, and not to the court's statement of facts. Second. Where theoccupation of the defendant is shown, whether he comes within the meaning ofsubdivision 11 is a question of law, and not of fact. The appellant was agentfor the garnishee, selling its goods by sample, driving about for that purposewith his own horse and buggy, receiving a weekly salary. Subdivision 11 exempts"the wages of any laboring man or woman, or of his or her minor children, inany sum not exceeding fifty dollars, due for services rendered by him or themfor and during ninety days preceding the issue of process," etc. All men whoearn compensation by labor or work of any kind, whether of the head or hands,including judges, lawyers, *114 bankers, merchants, officers of corporations,and the like, are in some sense "laboring men." But they are not "laboring men"in the popular sense of the term, when used to refer to a man's employment, andthat is the sense in which, we must presume, the legislature used the term. InWakefield v. Fargo, 90 N. Y. 213, under an act making stockholders in acorporation liable for debts due "laborers, servants, and apprentices," forservices performed for the corporation, the court construed the word "laborers"to refer to those whose services were manual or menial; those who areresponsible for no independent action, but who do a day's work or stated jobunder the direction of a superior; and held that it did not include one whokept the accounts of receipts and disbursements, and, in the absence of thesuperintendent, had charge and control of the business. In Jones v. Avery, 50Mich. 326, 15 N. W. Rep. 494, it was held that a traveling salesman, sellingby sample, did not come within the meaning of a constitutional provision makingstockholders of a corporation liable for "labor debts" of the corporation.There are many cases holding that contractors, consulting or assistantengineers, agents, superintendents, secretaries of corporations, and liverystable keepers, do no come within the meaning of the term. Powell v. Eldred,39 Mich. 554; Aikin v. Wasson, 24 N. Y. 482; Short v. Medberry, 29 Hun, 39;Dean v. De Wolf, 16 Hun, 186; Krauser v. Ruckel, 17 Hun, 463; Ericsson v.Brown, 38 Barb. 390; Coffin v. Reynolds, 37 N. Y. 640; Brusie v. Griffith, 34Cal. 306; Dove v. Nunan, 62 Cal. 400. We do not think the legislature intendedthe exemption to operate in favor of any but those who are laboring men orwomen in the sense that their work is manual. Persons of that class usuallylook to the reward of a day's labor for immediate or present support, and such

persons are more in need of the exemption than any others. This debtordefendant is not within that class. Judgment affirmed.

Minn. 1889.

Wildner v. Ferguson

6 L.R.A. 338, 42 Minn. 112, 43 N.W. 794, 18 Am.St.Rep. 495

END OF DOCUMENT


OLIVER

v.

MACON HARDWARE CO. et al.

March 23, 1896.


1. Primarily, a clerk in a mercantile establishment is not a "laborer," inthe sense in *404 which that word is used in section 1974 of the Code, eventhough the proper discharge of his duties may include the performance of someamount of manual labor. If the contract of employment contemplated that theclerk's services were to consist mainly of work requiring mental skill orbusiness capacity, and involving the exercise of his intellectual faculties,rather than work the doing of which properly would depend upon mere physicalpower to perform ordinary manual labor, he would not be a laborer. If, on theother hand, the work which the contract required the clerk to do was, in themain, to be the performance of such labor as that last above indicated, hewould be a laborer. In any given case, the question whether or not a clerk isentitled, as a laborer, to enforce a summary lien against the property of hisemployer, must be determined with reference to its own particular facts andcircumstances.

2. Although the intervention filed in the present case alleged in generalterms that the intervener was a clerk, that the amount he claimed was due himfor services and labor performed as a clerk, and that as such clerk heperformed manual labor, yet, as it failed by other appropriate allegations toshow to which of the classes above indicated he belonged, it was bad foruncertainty, and properly dismissed on demurrer.

Error from superior court, Bibb county; John L. Hardeman, Judge.

Intervention of Henry E. Oliver in the matter of a judgment against the

Macon Hardware Company. Judgment against the intervener, and he appeals.Affirmed.

West Headnotes

Labor and Employment 231H k 233

231H Labor and Employment

231HIV Compensation and Benefits

231HIV(A) In General

231Hk231 Liens, Priorities, and Preferences

231Hk233 k. Persons Entitled. Most Cited Cases

(Formerly 255k82(2) Master and Servant)

Labor and Employment 231H k 249

231H Labor and Employment

231HIV Compensation and Benefits

231HIV(B) Actions

231Hk247 Pleading

231Hk249 k. Complaint, Petition, or Declaration. Most CitedCases

(Formerly 255k82(2) Master and Servant)

A petition alleging in general terms that petitioner was a clerk, that theamount he claims is due him for services performed as clerk, and that as suchclerk he performed manual labor, is insufficient to entitle petitioner to alien on the property of his employer, under Code, s 1974, which may besummarily enforced, since, primarily, a clerk is not "a laborer," within thatsection, though the proper discharge of his duties may include the performanceof some amount of manual labor.

Alex Proudfit, for plaintiff in error.

Dessau & Hodges, for defendant in error.

LUMPKIN, J.

Some confusion has arisen in the decisions of this court with reference tothe question whether or not a clerk employed in a store, office, or other placeof business, is a "laborer," within the meaning of sections 1974 and 3554 ofthe Code; the former giving laborers a general lien for their labor upon theproperty of their employers, and the latter exempting the wages of laborersfrom the process of garnishment. In Butler v. Clark, 46 Ga. 466, the questionarose as to whether the wages of one employed in a mill as "receiving andshipping clerk," and who "performed any other duties required of him" by hisemployer, were subject to garnishment. In dealing with the case, this employewas treated as "a hired workman," and accordingly adjudged to be a laborer,within the meaning of the statute. In Claghorn v. Saussy, 51 Ga. 576, themonthly wages of a "forwarding clerk" in the employment of a railway companywere held not to be subject to the process of garnishment. It was the duty ofthat clerk to attend daily to the forwarding of goods, and to render otherservices which necessarily required the performance of a considerable amount ofmanual labor. The case is cited in Oliver v. Boehm, 63 Ga. 172, where it wasdecided that a person "employed as clerk, bartender, and boy of all work, tolabor in and about a retail grocery and liquor store," was a laborer entitledto the lien provided for by section 1974 of the Code. The scope of this boy'semployment seems to indicate that the greater part of his work consisted ofmanual labor, rather than of services requiring mental or intellectual skilland capacity. Indeed, in Richardson v. Langston, 68 Ga. 658, JusticeCrawford, in referring to Oliver's Case, said "he specifically set out atlength the actual manual labor which he performed." The learned justicedoubtless referred to the record of the case, as only the headnote of thedecision is reported in 63 Ga. In Richardson's Case the court ruled that anaffidavit to foreclose a laborer's lien, in which it was alleged that thedefendants, merchants selling dry goods and groceries, were indebted to thedeponent "for services rendered as clerk, laborer, and general service in saidstore," was not demurrable as not sufficiently setting out the fact that theplaintiff was a laborer. The opinion was written by Justice Crawford, whodissented from the judgment. We make the following extract from his commentson the case: "I do not understand that clerks, or persons doing generalservice, although they may labor, are therefore laborers, in legalcontemplation. If they are to be included in the general term 'laborers,' thenI see no limit to the exercise of this extraordinary right of having executionon oath, by all agents and employes, such as cashiers, tellers, and bookkeepersof banks, secretaries, treasurers, bookkeepers, salesmen, and superintendentsof manufacturing companies, as well as all the officials of railroads below thepresident, whether in the offices or on the roads. To enlarge upon classlegislation by implication should not be the policy of courts, and especiallyso where ex parte summary remedies are allowed." We will next notice the caseof Hinton v. Goode, 73 Ga. 233, in which it was decided that "one who isemployed merely to labor as clerk in a store is not such a laborer as iscontemplated by section 1974 of the Code, giving a lien to a laborer on theproperty of his employer." Justice Blandford, who delivered the opinion of thecourt, said: "Laborers, as used in the statute, mean what were generally anduniversally known as laborers at the time of the passage of the act. A laborer

is one who works at a toilsome occupation,-a man who does work requiring littleskill, as distinguished from an artisan,-sometimes called a laboring man.Webster. Clerks, agents, cashiers of banks, and all that class of employes,whose employment is associated with mental labor and skill, were not consideredlaborers, and were not intended by the statute to be embraced therein aslaborers, so as to have a lien for their wages. And this is the effect of theprevious rulings of this court." In Ricks v. Redwine, Id. 273, it was heldthat "a clerk employed in a store or other establishment unless he performsmanual labor, is not a laborer entitled to have a lien upon his employer'sproperty which can be summarily enforced."*405 In that case Justice Hallobserved that all the former cases on the subject were reviewed in the Case ofHinton, supra. In Lamar v. Russell, 77 Ga. 306, 2 S. E. 467, it was held thatthe wages of a clerk and bookkeeper were not subject to garnishment; citingSmith v. Johnston, 71 Ga. 748, which was a case involving the right to garnishthe wages of a railroad clerk. Then follows the case of Abrahams v. Anderson,80 Ga. 570, 5 S. E. 778, which is substantially on the same line, and cites anumber of cases, including several of those above mentioned. This brings us tothe case of Briscoe v. Montgomey, 93 Ga. 602, 20 S. E. 41, holding that a"commercial traveler" was not a day laborer, whose wages were exempt from theprocess of garnishment. In the course of a very brief discussion of that casethe writer remarked, "It is obvious that in the discharge of his duties a clerkand bookkeeper must necessarily perform a considerable amount of manual labor."It was not necessary, however, in that case, to go to the bottom of the subjectwith which we are now delaying, and this accounts for the evident looseness ofthe expression last above quoted. We think all the cases previously decidedcan be reconciled and harmonized by adopting the line indicated in the firsthead note of the present case. It states the idea about as clearly as we canexpress it. Every human being who follows any legitimate employment, ordischarges the duties of any office, is, in a very broad sense, a laborer. Thepresident of the United States, the governor of this state, and the justices ofthis court are all laboring men, in the sense that they do a great deal of hardwork, much of which is, indeed, attended with physical and muscular exertion;but at the same time they cannot property be termed "manual laborers," eitherin the popular sense in which these words are used and understood, or in thesense in which the term "laborers" was employed in the statutes underconsideration. The legislature manifestly had reference to the work in whichsuch "laborers" were engaged, rather than to the particular designation bywhich they were usually distinguished one from the other. In determiningwhether a particular clerk, or other employe, is really a laborer, thecharacter of the work he does must be taken into consideration. In otherwords, he must be classified, not according to the arbitrary designation givento his calling, but with reference to the character of the services required ofhim by his employer. The headnote indicates the rule to be followed inassigning him to that class to which he rightfully belongs.

2. From the foregoing it follows that an intervention filed in an equitableproceeding, containing only the allegation set forth in the second headnote,was bad for uncertainty, because it entirely, failed, by other appropriateallegations, to show that the intervener belonged to that class of clerks

entitled to liens as laborers. Judgment affirmed.

Ga. 1896.

Oliver v. Macon Hardware Co.

98 Ga. 249, 25 S.E. 403, 58 Am.St.Rep. 300

END OF DOCUMENT





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KLINE

v.

RUSSELL.

July 23, 1901.


1. Where a debtor claimed that a sum which his creditor was seeking toreach by a process of garnishment was due to him as a laborer, and thereforenot subject to such process, it was not upon the trial of an issue thus arisingerroneous to charge: "If the contract of employment contemplated that theclerk's services were to consist mainly of work requiring mental skill orbusiness capacity, and involving the exercise of his intellectual faculties,rather than work the doing of which properly would depend upon a mere physical


power to perform ordinary manual labor, he would not be a 'laborer.' If, onthe other hand, the work which the contract required the clerk to do was, inthe main, to be the performance of such labor as that last above indicated, hewould be a 'laborer."' Oliver v. Hardware Co., 25 S. E. 403, 98 Ga. 249.

2. According to the rule laid down in the case above cited, and in view ofthe evidence appearing in the record, the plaintiff in error was not a laborerwhose wages were exempt from the process of garnishment. See Ensel v. Adler,35 S. E. 334, 110 Ga. 326, and cases cited; Stuart v. Poole, 38 S. E. 41, 112Ga. 818.

3. The preceding notes deal with the only questions presented in the motionfor a new trial, in so far as the grounds thereof were verified by the trialcourt.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by J. J. Russell against B. H. Kline. From the judgment, Klinebrings error. Affirmed.

West Headnotes


163 Exemptions





Whether an employee is a laborer depends on whether his labor, consideringthe entire period of his employment contract, is principally physical orprincipally involves the exercise of mental faculties.

*477 Geo. W. Brooks, for plaintiff in error.

R. J. Hancock, for defendant in error.

PER CURIAM.

Judgment affirmed.

Ga. 1901.

Kline v. Russell

113 Ga. 1085, 39 S.E. 477

END OF DOCUMENT





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Recipient(s): maanolalia@gmai

Supreme Court of Texas.

BELL et al.

v.

INDIAN LIVE-STOCK CO.

March 19, 1889.

Commissioners' decision. Appeal from district court, Cooke county.

Action by Bell & Gardner against J. P. Addington, Indian Live-Stock Company,garnishee. Plaintiffs appeal.

West Headnotes

Exemptions 163 k 27

163 Exemptions



163I(B) Persons Entitled

163k26 Residence

163k27 k. Domicile in General. Most Cited Cases

Exemption laws of the state protect the property of nonresidents as well asresidents.


163 Exemptions




163k48(1) k. In General. Most Cited Cases

One employed by a livestock company as manager at a monthly salary of $200,though he is also a stockholder, is entitled to the exemption.


163 Exemptions




163k48(1) k. In General. Most Cited Cases

Wages voluntarily left in the possession of the employer after they becomedue cease to be "current," and are not exempt.

*344 Davis & Garnett, for appellants.

C. C. Potter, for appellee.

ACKER, J.

J. P. Addington was indebted to appellants, for which they brought suit and

garnished appellee. The garnishee answered that Addington was in its employ asits manager for the compensation of $200 per month; that he was a non-resident;that there was to his credit on the books of appellee *345 the sum of $624, dueto him as current wages for personal service; and that the money was notsubject to garnishment under the laws of this state. Appellants controvertedthe answer upon the following grounds: (1) That Addington, being anonresident, was not entitled to the benefits of the laws of this state whichexempt from garnishment current wages for personal service; (2) that the $624in the hands of the garnishee to the credit of Addington were not current wagesfor personal service, within the meaning of out constitution and statutes. Thetrial court held the money exempt, and discharged the garnishee on its answer.It was proven on the trial that Addington owned $150,000 of the stock ofappellee company, which was pledged for its full value. The two questionsinvolved in the case are properly presented here for out determination:

1. Are current wages due to a non-resident for personal service subject togarnishment in this state?

2. Is the sum of $624 due by a corporation to one of its stockholders on acontract to pay the stockholder $200 per month for his services as manager ofthe company 'current wages for personal service' within the meaning of theconstitution and laws of this state?

The constitution (article 16, s 28,) provides that 'no current wages forpersonal service shall ever be subject to garnishment.' Substantially the samelanguage is found in article 218 of our Revised Statutes, and it is thereprovided that 'where it appears upon the trial that the garnishee is indebtedto the defendant for such current wages, the garnishee shall nevertheless bedischarged as to such indebtedness.' Clause 16, art. 2335, Rev. St., whicharticle enumerates the articles of personal property exempt from forced sale,is as follows: '(16) All current wages for personal services.' The foregoingare the only provisions of our laws, organic or statutory, bearing upon thequestions in this case. It will be observed that none of these, in terms or bynecessary implication, are limited in their application to citizens orresidents of this state. Such provisions affect the remedy merely, and itseems reasonable to us that the law of the forum should apply in determiningthe rights of the parties. We are to interpret these provisions of our laws inaccordance with the obvious intent of those who enacted them, and that intentis to be arrived at by giving to the language employed its ordinarysignificance. We are to declare what the law is, without expanding orcontracting its purview. The constitution declares that no current wages forpersonal service shall ever be subject to garnishment, and the statutereiterates this declaration. We discover nothing in the context or thelanguage used to support the view contended for by appellants, that theseprovisions of our laws were designed for the benefit and protection ofresidents of this state only. It seems to us that the context and the languageused tend very strongly to support the converse of the proposition insistedupon by appellants. Article 183 of the Revised Statutes authorizes theissuance of the writ of garnishment when an original attachment has been sued

out, and article 152 authorizes the writ of attachment to issue upon the groundthat the defendant is a nonresident. The exemption laws in force prior to theadoption of the present constitution expressly limited their application tocitizens or residents of this state. The convention that framed the presentconstitution, and the legislature that enacted the present exemption laws, musthave had some purpose in omitting the limitation contained in the previouslaws, and we are unable to conceive any reason for the change other than thedesign that the benefits of these laws should inure to non-residents as well asto the citizens of our state.

We do not consider it necessary to discuss the effect which the adoption ofthe Fourteenth amendment to the constitution of the United States had withreference to state statutes discriminating in favor of its own citizens, andagainst citizens of other states. The laws of several of the American statescontain provisions similar in some respects to these provisions of our laws.In the absence of adjudications by our own courts, we look for authority to thedecisions of those states where like questions have been determined. In thecase of Railroad Co. v. Barron, 83 Ill. 366, the defendant in the originalaction, whose wages were garnished in the state of Illinois, was a resident ofthe state of Wisconsin, and claimed the benefits of the following statute:'The wages and services of a defendant, being the head of a family, andresiding with the same, to an amount not exceeding twenty-five dollars, shallbe exempt from garnishment.' It was held that the non-resident was entitled tothe exemption. In the case of Lowe v. Stringham, 14 Wis. 244, the debtorbeing a nonresident, temporarily in that state, in delivering the opinion ofthe court Judge PAINE uses the following language: 'We think also there was noerror in the instructions of the circuit court in respect to the plaintiff'sright to the venefit of the exemption law. The statute makes no discriminationbetween temporary and permanent residents, nor does it purport to confine itsprivileges to residents at all. It exempts certain articles of the debtor andhis family. And we think it would be entirely inconsistent with the beneficentintentions of the statute, as well as with the dignity of a sovereign state, tosay that the temporary sojourner, or even the stranger within our gates, wasnot entitled to its protection.' In the case of Sproul v. McCoy, 26 Ohio St.577, the court says: 'The exemptions from execution or sale allowed to 'everyperson who has a family,' under the provisions of the act of April 16, 1873,may be claimed by any debtor against whom an action is prosecuted in the courts*346 of this state, whether such debtor be or be not a resident of this state.'In some of the states the benefits of the statutes exempting personal propertyand wages from liability to seizure for payment of debts are expressly limitedto residents of the respective states, and the decisions made under suchstatutes of course conform to them. The statute under which the decision inLowe v. Stringham, 14 Wis. 244, supra, was rendered, was amended in 1861, so asto limit the benefits of the statute to 'married persons, or persons who haveto provide for the entire support of a family, in the state of Wisconsin.' Thecase of Bank v. Railway Co., 45 Wis. 172, cited by appellants, was decidedunder this amended statute.

Our attention has been called to but one case in which it seems to have beenheld, in the absence of statutory limitation, that the exemption of personalproperty does not apply in favor of non-residents of the state where theproperty is sought to be subjected, and that is the case of Hawkins v. Pearce,11 Humph. 45, (decided in 1850.) The opinion does not recite the statute underwhich the decision was made, but we infer from the argument used in the opinionthat the statute contained no limitations, but, like the provisions of ourlaws, granted the exemption in general terms to all persons. That decision wasplaced principally upon the ground that such statutes are designed to protectthe state against pauperism, and to prevent indigent persons from beingdeprived of all means of subsistence whereby they would become charges upon thepoor-fund. We consider the reasoning in that opinion unsound, and somewhatfallacious. We cannot consent to attribute the enactment of such laws to apurpose so sordid and inhuman. We prefer to attribute such legislation to themore humane and philanthropic purpose of protecting to the employe his currentearnings to meet and defray the current expenses of his living, that he mayenjoy a credit to the extent of his current earnings, and not be forced into acondition of abject dependence and want. We are constrained to hold with theweight of authority, as well as the established rules of construction, thatcurrent wages due to a non-resident for personal service are not subject togarnishment in this state.

We have had more than ordinary difficulty in our investigation and decisionof the second question involved in this case. In most of the states where lawsof like character have been enacted, the exemption is given for a stated amountof 'wages,' or for the 'earnings' for a given length of time preceding theservice of the writ. In all of the states, we believe, the protected wages ofearnings must be the proceeds of, or compensation for, personal service. Withus, the protected fund must be not only 'wages for personal service,' but mustbe also 'current wages.' It is evident that it was not intended that all wagesfor personal service should be exempt, but only such as are current. Websterdefines 'current' to mean 'running or moving rapidly; now passing or present,in its progress, as, a current month or year.' Bouvier says the word 'current'is 'a term used to express present time, current month, etc.' 'Wages' are thecompensation given to a hired person for service, and the same is true of'salary.' The words seem to be synonymous, convertible terms, though webelieve that use and general acceptation have given to the word 'salary' asignificance somewhat different from the word 'wages' in this: that the formeris understood to relate to position or office, to be the compensation given forofficial or other service, as distinguished from 'wages,' the compensation forlabor. It is of little or no importance, however, in determining the questionnow being discussed, whether the distinction here suggested be recognized ornot. We have to deal with the phrase 'current wages,' without other limitationas to time or amount, and we think the exemption would apply without regard towhether the compensation be called 'wages' or 'salary.' Counsel for appellantsargue with much force and persuasive earnestness, that this exemption wasprovided for the benefit of such employes as require their wages as they areearned to defray the expenses of their living, and not for the protection ofpersons who receive for their services $200 per month, and whose circumstances

are such that they are able to leave their earnings in the hands of theiremployer until the wages for more than three months have accumulated to theircredit.

It appears that Addington was employed by the garnishee 'at a monthly salaryof $200 per month;' that he had been so employed for about 18 months, and haddrawn on his employer for money as he needed it; that on the 1st day of April,1886, he requested to know how his wages account stood, and there was found tobe due him to sum of $624.50. While we think it clear that the money in thehands of the garnishee was due to Addington as wages for personal service,within the meaning of that phrase as used in our constitution and statutes, weare also of opinion that the money had ceased to be current wages, and that itwas subject to the writ of garnishment. The wages were payable monthly, andwere exempt for the month current at the time of the service of the writ, butthe exemption ceased to appoly when the wages became past due. Cases mayarise, however, in which a party would not be entitled to the benefit of thewrit of garnishment sued out after the wages became due. It appears that thewages were voluntarily left by Addington in the hands of the garnishee, andwere past due. As there is no controversy about the facts, we are of opinionthat the judgment of the court below should be reversed, and judgment renderedhere in favor of appellants for $624.50, with interest from May 1, 1886, thedate of the judgment below.

*347 STAYTON, C. J.

Report of commission of appeals examined, their opinion adopted, judgmentreversed, and rendered for appellants.

Tex. 1889

Bell v. Indian Live-Stock Co.

11 S.W. 344

END OF DOCUMENT
