Opinion
No. 6882.
April 28, 1951.
APPEAL FROM THE CIRCUIT COURT, SCOTT COUNTY, R. B. OLIVER III, J.
Not to be published in the State Reports.
Bailey Craig, of Sikeston, for appellant.
Jack O. Knehans, of Cape Girardeau, for respondent.
The appellant was the defendant below and the respondent plaintiff. To avoid confusion, the parties will generally hereafter be designated in this Court as they were below. The case was submitted on briefs of the parties.
The petition was originally in two counts. The second count presented the claims against defendant of one James Marshall. That count need not be further considered, as it is no longer before us.
This was an action by plaintiff under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The first three paragraphs of defendant's brief state most of the facts, and may be quoted.
"This is a suit brought in the Circuit Court of Scott County by the respondent against the appellant under the `Fair Labor Standards Act of 1938' which is commonly known as the Wage and Hour Law. The respondent alleges that he worked from 68 to 75 hours per week from October 24, 1938, the effective date of the Act, to October 15, 1943.
"The suit was filed on January 14, 1946, and the court below sustained motion applying Statute of Limitations against all that part of the petition making reference to overtime wages claimed prior to January 14, 1941. No Appeal was taken from this and all the court has before it is the amount of overtime claimed since that date.
"The respondent (appellant) denied that the appellant (respondent) actually worked during the hours claimed as overtime and, also, by way of Counterclaim, that the plaintiff had been overpaid $200.00 on his labor account which is shown by check endorsed by the wife of plaintiff, her authority to endorse his checks is affirmed." (The words in parentheses above corrected by us.)
Defendant makes but two points in its brief. Plaintiff did not appeal. From his subsequent conduct, defendant concurred in the view of the trial court. Hence, that is the law of this case.
We will not recite the various steps taken in the appeal, since the right of defendant to be in this Court is not questioned. We will also omit most of the original petition. Paragraphs 9 and 10 thereof state a cause of action, unless defendant is correct in its contention that the rules of the Interstate Commerce Commission, instead of the Fair Labor Standards Act of 1938, apply to this situation. This is one of defendant's contentions of error.
Defendant's only assignments of error in its brief are:
"The court erred in finding that the employment of the respondent was under the Fair Labor Standards Act, the Interstate Commerce Commission having power to establish qualifications, maximum hours, etc."
"The court erred in denying appellant's counterclaim in the sum of $217.40."
The case was tried by the Judge of the Circuit Court and was decided by him on April 4, 1949. He found for plaintiff, under paragraphs 9 and 10, in the sum of $459.04, as actual damages, and, in addition, in a like sum as a penalty; and attorney fees in the sum of $300.00. He found against defendant on its counterclaim, and so rendered judgment.
On April 4, 1949, defendant filed its motion for a new trial, which motion was overruled on June 13, 1949. The time for filing transcript was extended and the transcript was filed within such extension.
The ninth paragraph of the original petition alleged that plaintiff was employed by defendant from October 24, 1940, to August 2, 1941, on an hourly basis of 33 cents, and that defendant owed plaintiff $194.22 for overtime, during that period, in excess of 40 hours per week. Part of that time was within 5 years before the original petition was filed.
Paragraph 10 of the original petition alleged that plaintiff was employed by defendant from August 2, 1941, until November 29, 1941, all within 5 years before the original petition was filed, at an hourly rate of 38 cents, and that defendant owed plaintiff the sum of $83.13 for overtime, in excess of 40 hours per week during that period. The original petition further asked for a judgment against defendant, in the sum of $500.00. as plaintiff's attorney fees.
In 1940, the United States Supreme Court, in U.S. v. American Trucking Association, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345, held that the meaning of the term "employees" in Section 204(a) (1, 2), Interstate Commerce Act, 49 U.S.C.A. § 304(a) (1, 2), is limited to those employees, whose activities affect the safety of operation. The Interstate Commerce Commission was held to have no jurisdiction to regulate the qualifications and hours of service of any employee, other than employees so engaged. This was also held in Levinson v. Spector Motor Service, 330 U.S. 649, 67 S.Ct. 931, 91 L.Ed. 1158.
It is only when the duties of employees relate to public safety, that the Interstate Commerce Commission has the power to regulate the qualifications and the hours of service of employees, engaged in work of that kind. The evidence in this case is that the duties of plaintiff mostly had to do with things, other than the loading and unloading of trucks and the safety of trucks on the road or elsewhere. Plaintiff did not come within the exceptions of the Fair Labor Standards Act of 1938, particularly subd. (b) of Section 213 thereof.
We must rule the first point of defendant's brief against defendant.
On the second point, which defendant makes in its brief, we must also rule against defendant. The evidence, as to the purpose of the advancement to plaintiff by defendant of $217.40, was conflicting. The proof of defendant tended to show that such advancement was made under conditions, which required the return of such advancement. On the other hand, plaintiff contended that such advancement was made to reimburse him for expenses, incurred in defendant's business, and, for this reason, plaintiff was under no obligations to return to defendant any part of such advancement. The trier of the facts accepted the contention of plaintiff. There was ample evidence to support his finding in that respect. We should not disturb his finding, since such finding is based upon substantial evidence. The witnesses were before him. We see no occasion for disagreement with him.
On May 15, 1949, before any evidence was introduced, and before the case was submitted to the trial judge, the plaintiff made the following statement and amendment, to-wit:
"* * * We would like to ask leave of Court to amend the petition to conform to what we anticipate the proof will be and the law that applies to that proof in the following respects:
"In Paragraph 9 of the petition we ask leave of Court to insert the figure $306.04 in lieu of the figure $194.22, and in Paragraph 10 of the petition to insert the figure $153.00 in lieu of the figure $83.13 and to insert following Paragraph 10 the one sentence that, `During the period of time from January 14, 1941 to November 29, 1941, the defendant failed to pay the minimum of forty cents per hour required by the Fair Labor Standards Act of 1938.'"
After such amendment plaintiff was permitted by the trial court to recover $306.04 actual damages, under paragraph 9 of the amended petition, and $153.00, under paragraph 10 of the amended petition, as a recovery for actual damages under that paragraph or for a total sum under those two paragraphs, as amended, of $459.04, actual damages, which were the amounts asked for in those two paragraphs, after amendment thereof.
In addition, the trial court assessed against defendant punitive damages in like amounts, with attorney fees of $300.00, or a total judgment of $1218.08 in favor of plaintiff. U.S. Statutes at Large, for 1938, 52 Stat. 1062, 1063, 1069, Sections 6, 7 and 16(b), 29 U.S.C.A. §§ 206, 207, 216(b).
As defendant did not assign the size of such judgment as an error in the case and only assigned as error the two points above discussed, we believe that the evidence after such amendments, as allowed by the trial judge, justified such judgment. In this view of the record, we should affirm the judgment of the trial court.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.