Opinion
6 Div. 995.
October 8, 1942. Rehearing Denied November 12, 1942.
Appeal from Circuit Court, Jefferson County, Bessemer Division; Gardner Goodwyn, Judge.
Action under Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., by Wylie L. Shaw against Acme Lumber Company, Inc. From a judgment for plaintiff, defendant appeals.
Affirmed.
The complaint is, in pertinent part, as follows:
"(2) That defendant herein is a corporation organized and existing under and by virtue of the laws of the State of Alabama, and at all times mentioned herein Defendant was engaged in the manufacture and production of lumber and building materials at its plant at Bessemer, Alabama; that said lumber and building material so manufactured or produced by Defendant have been produced for interstate commerce, and a substantial portion thereof have been sold, offered for transportation, transported, shipped and delivered by Defendant in interstate commerce from defendant's said plant to various points outside the State of Alabama; that said lumber and building materials so manufactured and produced by defendant compete with similar goods produced in other states, and defendant in such business competes with manufacturers and producers of like goods in other states.
"(3) That Plaintiff, at all times herein mentioned, was employed by Defendant at its said plant at Bessemer, Alabama, where the above mentioned goods and merchandise are manufactured and produced and shipped, and in and about his said employment plaintiff performed the following duties and functions which were required of him by the terms of his employment with this Defendant, to-wit, he acted as a night watchman on and over Defendant's plant, equipment, materials, merchandise and supplies, he guarded and protected defendant's machinery, equipment, merchandise and lumber, he gassed and serviced automobile trucks used by Defendant in and about said operations and business, he cleaned, protected and guarded defendant's office at its said plant, answered the telephone while on duty, and from time to time transmitted orders from defendant's manager in charge of said plant and operation to other employees of the Defendant who were then and there engaged in and about their duties in connection with the manufacture and sale of the goods and merchandise hereinabove referred to. And functions performed by said Plaintiff are an essential part of the production of lumber and are necessary operations to the completion of the manufacture of said lumber of which a substantial portion is subsequently shipped outside the State."
The following interrogatory was filed by plaintiff to defendant:
"25. State whether or not during the period from October 24, 1938, to January 23, 1941, you had one Wylie L. Shaw in your employ. If you state that you did not, then give all of the facts and details in regard to any connection which the said Wylie L. Shaw had during said period of time with the operation of your said plant at Bessemer, Alabama."
The defendant's answer thereto was as follows: "25. No, Wylie L. Shaw was not in the employ of this defendant during this period of time. He had previously worked for this defendant but his services were terminated in the early part of September, 1938. During the time, however, inquired about this defendant did pay to the plaintiff $8.00 a week as a pension and furnished him a small house in which to live, which is located on the premises on which your defendant conducts its lumber business. This was done solely through the solicitation and request of Mrs. Myrtle Crotwell, who was related to the Lessor of the property, which this defendant was renting for its lumber business. We are informed that Mrs. Crotwell had known the plaintiff for many years, and he formerly worked for her husband, and as he was crippled or handicapped, she prevailed on this defendant to make this small contribution each week as a pension to take care of the plaintiff. It was distinctly understood that Shaw was not working for the defendant and he did not do any work for the defendant, nor did the defendant suffer or permit him to do any work for it during the period referred to. This condition continued and the pension was paid until the plaintiff's conduct about the house he was occupying became so bad, that it could not be tolerated longer."
The portion of the answer which was stricken by the Court on motion of the plaintiff was as follows: "This was done solely through the solicitation and request of Mrs. Myrtle Crotwell, who was related to the Lessor of the property, which this defendant was renting for its lumber business. We are informed that Mrs. Crotwell had known the plaintiff for many years, and he formerly worked for her husband, and as he was crippled or handicapped, she prevailed on this defendant to make this small contribution each week as a pension to take care of the plaintiff."
Huey, Welch Stone, of Bessemer, for appellant.
A complaint under the Fair Labor Standards Act is demurrable where it only shows that the employe was a mere night watchman at a lumber yard. Hart v. Gregory, 218 N.C. 184, 10 S.E.2d 644, 130 A.L.R. 265; Wood v. Central Sand Gravel Co., D.C.Tenn., 33 F. Supp. 40; Rogers v. Glazer, D.C.Mo., 32 F. Supp. 990; Killingbeck v. Garment Center Capitol, 259 App. Div. 691, 20 N.Y.S.2d 521; Bagby v. Cleveland Wrecking Co., D.C.Ky., 28 F. Supp. 271; U.S. v. F. W. Darby Lbr. Co., D.C.Ga., 32 F. Supp. 734; Foster v. National Biscuit Co., D.C.Wash., 31 F. Supp. 552. It is the positive duty of the trial court to grant a new trial where verdict of jury is so contrary to great weight of evidence as to warrant the conclusion that it is wrong or unjust as to shock the conscience of the court; that it is the result of inadvertence, forgetfulness or capricious disregard of testimony, of bias or prejudice, or is grossly excessive in amount awarded. Castleberry v. Morgan, 28 Ala. App. 70, 178 So. 823; Matthews Morrow v. Batson, 218 Ala. 378, 118 So. 749; Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755; Sovereign Camp, W. O. W. v. Gunn, 229 Ala. 508, 158 So. 192. Under the Fair Labor Standards Act the fees for plaintiff's counsel are not a part of the liability for which plaintiff can recover, but is an allowance to be made by the court, after verdict and judgment. Hence, it is error to submit to the jury as a part of the liability in the case the matter of the fee for plaintiff's attorneys. 29 U.S.C.A. § 216(b).
H. H. Sullinger and Robt. W. Gwin, both of Bessemer, for appellee.
A night watchman, employed by an employer who is engaged in production of goods to be sold in interstate commerce, whose duties are to guard and watch his employer's premises, plant, machinery and goods, is an employe within the meaning of the Fair Labor Standards Act and is entitled to the benefits of the Act. Robinson Co. v. Larue, Tenn. App., 156 S.W.2d 359; Id., Tenn., 156 S.W.2d 432; Fleming v. Pearson Hardwood Flooring Co., D.C.Tenn., 39 F. Supp. 300; Lefevers v. General Export Iron Metal Co., D.C.Tex., 36 F. Supp. 838; Campbell v. Superior Decalcominia Co., D.C.Tex., 31 F. Supp. 663; Doyle v. Johnson Bros., 176 Misc. 656, 28 N.Y.S.2d 452; Johnson v. Phillips Buttorff Mfg. Co., 5 Wage Hour Rep. 300; Milan v. Tex. Spring W. Co., 5 Wage Hour Rep. 71; Hargrave v. Mid. Cont. Pet. Corp., 5 Wage Hour Rep. 275; McMillan Wilson Co., 5 Wage Hour Rep. 192; Flores v. Baetjer, 4 Wage Hour Rep. 471; Steger v. Beard Stone Elec. Co., 4 Wage Hour Rep. 411; Williams v. General Mills, D.C. Ohio, 39 F. Supp. 849; Hanson v. Queensboro Farm Prod., 5 Wage Hour Rep. 255; Wood v. Central Sand Gravel Co., D.C.Tenn., 33 F. Supp. 40. The affirmative charge should not be given if the evidence is directly or inferentially conflicting. Mann v. Butcher, 211 Ala. 669, 101 So. 595. Verdict of jury should not be set aside by trial court, or trial court reversed on appeal for failure to set aside unless the verdict is palpably erroneous. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
Warner W. Gardner, Sol., and Mortimer B. Wolf, Asst. Sol., both of Washington, D.C., Wm. A. Lowe, Regional Atty., of Birmingham, and Henry A. Silver, Atty., for Administrator of Wage and Hour Division, U.S. Department of Labor of Washington, D.C., amicus curiae.
Action by employee against employer to recover balance alleged to be due for minimum wage, overtime pay, liquidated damages, and attorney's fee, under the provisions of Fair Labor Standards Act of 1938. 52 Stat. 1060, §§ 1 to 19, 29 U.S.C.A. §§ 201 to 219, inclusive. The employer, appellant, challenged the complaint by demurrer, on the ground that it presents no cause of action under said act.
The averments of the complaint pertinent to this inquiry appear in paragraphs 2 and 3, found in the report of the case.
The insistence is, in effect, that the complaint discloses plaintiff's employment was that of a night-watchman at the plant of his employer, who was engaged in the production of lumber and building materials for interstate commerce; and that such night-watchman is not engaged in the actual production of goods, nor in an "occupation necessary to the production thereof," within the meaning of section 3(j), 29 U.S.C.A. § 203(j). Since the Fair Labor Standards Act became effective, October 1, 1938, several courts, State and Federal, have construed the act as applied to "watchmen" or "night-watchmen," under varied states of fact.
On June 1, 1942, since briefs were filed in this appeal, the Supreme Court of the United States has dealt with the subject. Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 1118, 86 L.Ed. 1638. In that case the owner of a building, known as a loft building, leased or rented same to sundry tenants who were engaged in the manufacture or production of goods for interstate commerce. The lessor, in keeping with his obligations to his tenants, had employees of different kinds, among them watchmen, of whom it was merely said: "The watchmen protect the buildings from fire and theft."
These watchmen, it will be noted, were not employees of the tenants actually producing the goods for commerce, but one degree removed, namely, employees of the lessor of the buildings housing the manufacturing operations.
Following a general discussion of the power of Congress under the commerce clause, and the term "necessary," viewed in the light of the purposes of the act, the court concludes: "In our judgment, the work of the employees in these cases had such a close and immediate tie with the process of production for commerce, and was therefore so much an essential part of it, that the employees are to be regarded as engaged in an occupation 'necessary to the production of goods for commerce'. What was said about a related problem is not inappositive here: 'Whatever terminology is used, the criterion is necessarily one of degree and must be so defined. This does not satisfy those who seek for mathematical or rigid formulas. But such formulas are not provided by the great concepts of the Constitution such as "interstate commerce," "due process," "equal protection". In maintaining the balance of the constitutional grants and limitations, it is inevitable that we should define their applications in the gradual process of inclusion and exclusion. There is thus no point in the instant case in a demand for the drawing of a mathematical line. And what is reasonably clear in a particular application is not to be over-borne by the simple and familiar dialectic of suggesting doubtful and extreme cases.' Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 467, 58 S.Ct. 656, 660, 82 L.Ed. 954. 'What is needed is something of that common-sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of problems of causation.' Gully v. First Nat. Bank, 299 U.S. 109, 117, 57 S.Ct. 96, 100, 81 L.Ed. 70."
This authority becomes the law of this court. Our task is to determine its application to the case in hand.
Accordingly, we hold that a night-watchman, employed to perform, and engaged in performing, the duties of a night-watchman at a lumber manufacturing plant, producing and processing lumber for interstate commerce as alleged in the complaint, is an employee within the protection of the wage and hour provision of the Fair Labor Standards Act. The additional or incidental services mentioned in the complaint need not be considered separately or cumulatively as affecting the sufficiency of the complaint. The demurrer was overruled without error. It follows the affirmative charge was not due defendant on the legal proposition that a night-watchman is not within the coverage of the act. The same applies to other refused charges based on the same conception of the law. Plaintiff's evidence tended to show his employment as night-watchman and his engaging in such employment with incidental services as charged in the complaint; that for a time after his employment he was furnished and operated a night-watchman's clock, patrolled the grounds, carried a gun and flash-light, excluded intruders, protected the plant, which included a sawmill, log yard, planing mill and lumber-yard, from fire, theft or other injury.
Without further comment, we find the affirmative charge, based on a want of evidence to sustain the complaint, was properly refused.
Defendant denied that plaintiff was an employee at all, claimed he was only a pensioner, drawing a stipend without any duties as an employee, and performed no duties as a night-watchman with the knowledge and approval of the management.
This was the main issue of fact in the case, Defendant insists, if not due the affirmative charge on this issue, a new trial should have been granted on the ground that the verdict did not respond to the great weight of the evidence.
As a background for the inquiry, we think the following does clearly appear:
Plaintiff was a cripple all his life. He had been night-watchman at this plant for a great many years down to the time defendant took over in July, 1938. He continued in this service for defendant until early in September, 1938, living in a little house built for him on the premises by Mr. Crotwell, a former owner and operator of the plant. He was discharged about September 7, 1938, removed from the premises, and found lodging in an old shed on a neighboring lumber-yard. Mrs. Crotwell, the widow of his old employer, intervened in plaintiff's behalf. About October 24, 1938, plaintiff was permitted to return, given sleeping quarters in a back room of the office building until his old quarters were vacated by another occupant, then re-occupied same free of rent, was paid the former sum of $8 per week, and provided water, fuel and lights. No deduction was made under unemployment compensation laws.
We think it clear, without substantial evidence to the contrary, that the superintendent, authorized to hire and fire for defendant, did advise plaintiff at the time that his stipend should be known as a pension, that plaintiff acquiesced in this, spoke of it as a pension to others; that the records were kept accordingly, his name not appearing on the pay-roll, but actually paid at the same time and place as payroll employees.
But that plaintiff was to perform no duties as night-watchman was controverted by substantial evidence.
The direct testimony of plaintiff that it was expressly stipulated his duties were to be the same as theretofore, and he did so perform, with the knowledge of the management, was corroborated by testimony of other witnesses.
The evidence was in sharp conflict on this issue. To review it in detail would serve no good purpose.
Indulging the well known presumptions in favor of the verdict of the jury, sustained by the trial judge, we are not convinced the finding of the jury was clearly and palpably wrong and unjust.
Plaintiff filed interrogatories to defendant. Before offering the answers in evidence, plaintiff moved to strike a portion of the answer to Interrogatory 25. The interrogatory, answer, and portion stricken, appear in the report of the case.
We are of opinion the portion stricken was responsive to the broad language of the interrogatory; was a permissible explanation of the occasion and conditions under which plaintiff returned, and should not have been stricken.
We cannot say that injury resulted from this ruling. All the facts touching the same matter were deposed to by the parties having knowledge of same, the parties required by law to answer the interrogatories. Mrs. Crotwell had died before the trial. This answer was not her answer. We find no reversible error here.
A reasonable attorney's fee was claimed in the complaint. Evidence was offered touching the amount of a reasonable attorney's fee, and the jury found same as a separate item in the verdict returned. The statute, § 216, provides: "The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."
Appellant would construe this statute to mean that the jury shall find by their verdict the amount recoverable under other provisions of the act, make no finding as to attorney's fee, and the trial judge, by further proceeding, shall ascertain and fix the attorney's fee to be added as part of the final judgment.
We do not so construe the act. It does not appear the act intends to prescribe other and different procedure in this regard, than obtains in the jurisdiction trying the cause. The "court" as used in the act may as readily be held to mean the court having jurisdiction of the cause, as to mean the trial judge.
We do think it fitting that the amount of the fee shall be found as a special item in the verdict. This, because, the trial judge has greater discretion and duty by reason of special knowledge, in dealing with the finding of the jury on this issue, than in dealing with jury findings on other issues. We find no reversible error in the record.
Affirmed.
GARDNER, C. J., and FOSTER and LIVINGSTON, JJ., concur.