dissenting.
It would be very nice if the law could support plaintiff s claim. I share the majority’s view, unspoken, that plaintiff was cheated. I cannot share the majority’s view that it is so easy for plaintiff to be made whole. Unhappily, in the words of the late Karl Llewellyn, “There ain’t enough justice to go around, and the legal system exists for rationing it by appropriate standards.” The majority thinks that plaintiff is entitled to win, and it cuts the law to fit that objective.
*542There was no evidence introduced about how plaintiff arrived at the scale figure from Rondeau’s check or that the figure is even the proper measurement of plaintiffs damages. All that Rondeau’s check proves is what Rondeau’s piecework earned him. It does not support the chain of inferences that plaintiff (and the majority) draw from it.
In some instances, like this one, it might be difficult for an employe seeking unpaid wages to prove the amount owing, because the employer might have kept inadequate records or even intentionally have obfuscated them. In cases where an employe’s inability to prove damages arises from an employer’s inadequate records, the employer should not be allowed to avoid a statutory wage claim because the claimant’s evidence lacks the exactness of measurement that would be possible if the employer had kept the records required by law. See Anderson v. Mt. Clemens Pottery Co., 328 US 680, 688, 66 S Ct 1187, 90 L Ed 1515 (1964). In the present case, plaintiff was an employe, and ORS 652.1301 required defendant to provide him with a statement of scale on a monthly basis.
If plaintiff had attempted to ascertain whether defendant had records of the amount that he personally cut on the unit in question or any other record indicating the amount cut generally and had got that in evidence or had made a showing that such records were unavailable2 to clarify or refute the *543amount of plaintiffs wage claim, the burden might have shifted to defendant because of the statutory duty imposed by ORS 652.130. However, plaintiff made an inadequate attempt to prove the amount due him under the piecework contract. The underexplained calculation made on the basis of an unexplained scale figure on another cutter’s paycheck stub that was not introduced in evidence does not constitute credible (or any!) evidence to establish the essential elements of a definite sum of money due from defendant for a definite amount of timber cut.3 The court erred in denying the motion to dismiss.
I dissent, even though I wish that justice were as easy to dispense as the majority makes it.
ORS 652.130 provides:
“Every person engaged in the business of logging or obtaining or securing sawlogs, poles, spars, piles, cordwood, posts or other timber or forest products, or engaged in the business of manufacturing sawlogs or other timber into lumber, and employing one or more employes on a piece work scale or quantity wage basis, shall furnish such employes at least once monthly, a statement of scale or quantity produced by them to their credit, and shall pay all wages or amounts so earned and due and payable under the law regulating paydays.”
Plaintiff s pretrial request for production was rather extensive, requesting:
“Any and all checks, drafts, notes or other instruments written on the account of Leisure Logging Company made to the order of Lester L. Wells, Fritz Gaughn, Dean Lawson, Randy Rondeau, Jack Mather or Brian Barney during the calendar years of 1982 and 1983.
“Any and all books, records, financial reports, or other documents prepared or kept by Leisure Logging Company for accounting, payroll, or tax purposes during the calendar years 1982 and 1983.
“Any and all documents in the possession of Leisure Logging Company or Chase E. Carlson bearing the signature of Lester W. Wells, Fritz Gaughn, Dean Lawson, Randy Rondeau, Jack Mather or Brian Barney.”
*543At trial, plaintiffs attorney complained about defendant’s failure to produce scale tickets under the request for production. Defendant admitted on cross-examination that he had records that would reflect scale figures for cutting done on the unit in controversy; however, plaintiff made no further effort to obtain those records.
Plaintiff pleaded a per diem pay rate but tried to prove only a piecework rate. Maybe that sort of messiness is all right under the cases.