Opinion
No. 226.
June 22, 1942.
Jarrett N. Clark, of Zeeland, Mich., for plaintiffs.
N. George Bashara, of Detroit, Mich., for defendant.
Action by John H. Prins, on behalf of himself and other employees of Michael A. Skaff against Michael A. Skaff for overtime compensation under Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.
Judgment of no cause of action.
Findings of Fact.
1. Plaintiff and defendant are both residents of the city of Grand Rapids, Michigan.
2. Plaintiff brings this action under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., and no other person has joined plaintiff in the suit.
3. Defendant is engaged in the sale, at wholesale, within the State of Michigan, of fruits and produce, substantially all of which are purchased within the State of Michigan.
4. Defendant employed plaintiff as a truck driver to drive defendant's own truck, principally within the city of Grand Rapids, Michigan. Upon two or three occasions plaintiff drove defendant's truck to bring merchandise belonging to defendant from the city of Chicago, Illinois, or the city of Toledo, Ohio, to the city of Grand Rapids.
5. Plaintiff was in the employ of defendant as truck driver from June 1, 1939, to about June 9, 1940, and from May 17 to May 24, 1941.
6. Plaintiff's sole proof of overtime labor consists of loose sheets of paper torn from three books (which books were not produced). These slips of paper do not appear to have been regularly kept, nor do the entries therein appear to have been made contemporaneously with the work of which they purport to be a record. Plaintiff's testimony that the entries were made from day to day is unreliable and unconvincing. No credits were given for large portions of plaintiff's time which were clearly shown to have been spent in sleeping and eating.
7. Plaintiff's testimony that he cannot tell who wrote the slips; that he was unable to identify his own handwriting or that of his wife, and that he changed the style of his handwriting from time to time is strongly convincing of the unreliability of this evidence.
8. Plaintiff has failed to sustain the burden of proof resting upon him to show that he performed overtime work for which he was not paid.
Conclusions of Law.
1. Plaintiff did not, during the period from June 1, 1939, to May 24, 1941, perform overtime labor for defendant within the meaning of the Fair Labor Standards Act of 1938, for which he has not been paid.
2. A judgment of no cause of action will be entered.