Pamela M. NORMAN, formerly Hadassah Goldman, Plaintiff,
Bernard J. GOLDMAN, Defendant.
Opinion Revised and Refiled Aug. 28, 1961.
Arthur J. Sullivan and Henry N. Herndon, Jr. (of Morris James, Hitchens & Williams), Wilmington, for plaintiff.
Stanley C. Lowicki and A. James Gallo, Wilmington, for defendant.
Plaintiff recovered a judgment against defendant in this Court, based on a decree of the Domestic Relations Court of Kanawha County, West Virginia, which '* * * decreed that the defendant * * * pay the plaintiff * * * the weekly sum of $35.00 * * * for maintenance, support and education of' the parties' infant child. Plaintiff, to enforce payment of the judgment, caused writs of attachment fi. fa. to be issued and [54 Del. 47] served on defendant's employer. Employer's paymaster testified that defendant was employed as a salesman and was paid a salary and commission. Defendant
conceded this testimony was correct.
Defendant moved to quash the attachment writs because of Title 10 Del.C.1953, § 4913, the pertinent provisions of which are:
'(a) Ninety per cent of the amount of the wages for labor or service of any person residing within New Castle County * * * shall be exempt from mesne attachment process and execution attachment process under the laws of this state, except where the execution attachment process is for board or lodging or both, for an amount not exceeding $50.00 exclusive of costs.
'(b) The provisions of this section * * * shall apply solely to debts incurred for or on account of the purchase of good, provisions and articles used in the home, commonly designated as the necessaries of life, * * *.'
Defendant's motion was argued and an opinion filed June 15, 1961, denying the motion because defendant was not a wage earner but was receiving a salary and commissions, consequently he was not in a position to avail himself of the exemption provisions set forth in the wage exemption statute.
Defendant filed a motion for reargument. This motion was granted. The parties filed new briefs and the case was reargued orally. The Court reconsidered the case and this opinion is a revision of that filed June 15, 1961.
On reargument defendant contended strenuously that the word 'salary' is synonymous with the word 'wages' and the Court had erred in differentiating these terms in its original opinion.
Defendant argues that the language of Title 10 Del.C. § 8110--Statute of Limitations--as to claims for 'wages, [54 Del. 48] salary or overtime for work, labor or personal services performed' should be considered and read with the wage exemption statute to determine the meaning to be given the word 'wages' in the exemption statute. Defendant cites Aero Service Corporation v. Gordy, 1954, 10 Terry 59, 49 Del. 59, 109 A.2d 393, and Sorenson v. Overland Corp., D.C., 142 F.Supp. 354, affirmed 3 Cir., 1956, 242 F.2d 70, both of which cases involved the application of Title 10 Del.C. § 8110.
This argument is rejected. The precise holding in Aero Service was that the statute 'has reference to the claims of servants, or members of the laboring classes and salaried employees' [49 Del. 59, 109 A.2d 394]--and the holding was based on the language of the statute; it did not consider or define the word 'wages' or hold it as synonymous with 'salary'; the Court held the statute did not apply to the facts of the case.
The precise holding in Sorenson was that the statute did apply to the suit in question--one brought by a corporate officer against the corporation 'for indemnification for attorney's fees and expenses growing out of a stockholders' suit against the officer'--because 10 Del.C. § 8110 covers, not only wages and salaries, but also claims for 'damages * * * resulting from the failure to pay * * * for any other benefit arising from such * * * personal service'. The District Court held that 10 Del.C. § 8110 'bars claims for 'wages', 'salary', and it likewise applies * * * to any other 'benefits' arising from the corporate-officer employment relationship. The word 'benefits' is embracing and covers all advantages growing out of the employment.' [142 F.Supp. 360.]
There is nothing in the Sorenson opinion to the effect that 'wages' and 'salary' are synonymous and are to be used interchangeably,--which is defendant's argument here. The Sorenson opinion of the Court of Appeals doesn't help defendant's argument since that Court said only '* * * that [54 Del. 49] a claim (such as was asserted) is in the nature of a benefit arising from one's status as a director. It is in
the nature of compensation * * *. * * * we think it is the type of thing that comes under the provision of this one-year statute.' [242 F.2d 73.]
It is significant that defendant did not cite one case that directly substantiated his argument on this phase of the case; this failure tends to strengthen the conclusion reached by the Court that the terms 'wages' and 'salary' are not synonymous, as contended, but have a distinct and different meaning, which was the Court's original determination.
The question for decision is whether a person being paid a salary--and receiving a commission, as here--can avail himself of the protection of the exemption provisions of the statute which uses the term 'wages'.
The present statute excludes from execution or attachment process----
'ninety per cent of the amount of the wages for labor or service  of any person residing within New Castle County.'
The italicized language in the present statute, 10 Del.C. § 4913, is identical with that used in the initial wage exemption statute  of 1873 and with one ...