George Lawley & Son Corporation v. South, No. 3937.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtMAGRUDER, MAHONEY and WOODBURY, Circuit
Citation140 F.2d 439
PartiesGEORGE LAWLEY & SON CORPORATION v. SOUTH.
Docket NumberNo. 3937.
Decision Date04 February 1944

140 F.2d 439 (1944)

GEORGE LAWLEY & SON CORPORATION
v.
SOUTH.

No. 3937.

Circuit Court of Appeals, First Circuit.

February 4, 1944.


140 F.2d 440

Varnum Taylor, of Boston, Mass., Wm. Gardner Perrin, and Taylor, Ganson & Perrin, all of Boston, Mass., for appellant.

Joseph G. Bryer, and Thomas H. Mahony, both of Boston, Mass., for appellee.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

This is an appeal by the defendant from a judgment entered for the plaintiff on a special verdict returned for him in an action brought to recover unpaid overtime compensation in the amount of $3,870.56, plus an additional equal amount as liquidated damages, a reasonable attorney's fee and costs under § 16 (b) of the Fair Labor Standards Act of 1938, 52 Stat. 1060 et seq., 29 U.S.C.A. §§ 201-219.

The defendant is a Massachusetts corporation which for many years has maintained a plant on the Neponset River in Dorchester where it has carried on the business of building, repairing and storing yachts. For the past two or three years it has been largely if not exclusively engaged in building and repairing boats and small vessels for the United States Government. It admits that its business in general is in interstate commerce and that the plaintiff while in its employ was engaged in the production of goods for such commerce.

In May, 1934, it employed the plaintiff as a bookkeeper at a salary of $35 per week. At that time it employed one other person in that capacity and also a head bookkeeper who acted as office manager. Some six weeks or two months after the date of the plaintiff's employment this head bookkeeper and office manager resigned and the plaintiff assumed that official's duties in addition to his own. At this time the plaintiff's salary was increased to $50 per week. As time went on the amount of bookkeeping increased, more bookkeepers were hired, and the plaintiff's salary was stepped up so that by October 24, 1938, the date when the Fair Labor Standards Act of 1938 took effect, he was receiving $75 per week. In 1937 in the employment record which the plaintiff kept for the defendant in compliance

140 F.2d 441
with the Social Security Act, 42 U. S.C.A. § 301 et seq., he described his occupation as "office manager and accountant" although he testified on the stand that throughout his entire employment by the defendant he spent at least 85% of his time actually working on the defendant's books as a bookkeeper

On December 24, 1938, just two months after the effective date of the Fair Labor Standards Act, the plaintiff was elected a director and the treasurer of the defendant corporation. As such his pay was not increased but he was paid on a monthly instead of a weekly basis, receiving $325 per month. He testified that this change did not operate to relieve him of any of his former duties and that he still continued to spend the great majority of his time as an ordinary bookkeeper, but he admitted that upon his election to office in the defendant corporation he assumed some additional duties. In February, 1941, his salary was increased to $435 per month, or $98.08 per week. On October 27, 1941, he and the defendant parted company — he says he was discharged, the defendant that he resigned on request — at which time there were about twenty office employees under his supervision.

The plaintiff admits that he made no demand upon the defendant for compensation for overtime during his employment and that he never kept any record, either in his office or at home, of the number of overtime hours he worked. He gave as his reason for this that he was in doubt whether the Fair Labor Standards Act applied to him. He conceded, however, that in September, 1941, he was told by a representative of the Wage and Hour Division of the Department of Labor that the Act did apply to him, but it does not appear that even then he began to keep any record of his overtime or made any demand for overtime compensation. It does appear, however, that on the day after the severance of his relations with the defendant he made demand on the defendant's president for time and a half for the overtime which he had worked during the last year of his employment.

The defendant below, the appellant here, advances three reasons why the plaintiff-appellee is not entitled to prevail. It contends that he failed to produce sufficient evidence of the number of hours of overtime he worked; that he is estopped from claiming any overtime at all; and that the Act does not apply to him because he was employed by the defendant in a bona fide executive or administrative capacity. We shall consider these contentions in the order of their enumeration.

As already noted the plaintiff kept no record whatever of the number of hours of overtime he worked. To prove his case he came into court with his wife's diary and a summary or analysis based upon some of the items therein which he and his wife had prepared about a year before the trial. The plaintiff did not offer these documents as exhibits, counsel for the defendant having objected, but used them to refresh his recollection, to which counsel for the defendant did not object. We are not, therefore, concerned with the admissibility of the evidence offered by the plaintiff; what we are concerned with is its sufficiency.

Counsel for the defendant contends, and counsel for the plaintiff appears to concede, that in cases of this sort the plaintiff not only has the burden of persuasion as to the number of hours of overtime worked each week and the amount of wages due each pay period, but that to prevail he must also establish the hours of his overtime definitely and with certainty. We agree to the first clause, and taking the last clause to mean no more than that the plaintiff must produce evidence definite enough to permit a finding without resort to guess or conjecture that he worked some particular number of overtime hours, we agree to that also. Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172, 175; Johnson v. Dierks Lumber & Coal Co., 8 Cir., 130 F.2d 115, 118; Joseph v. Ray, 10 Cir., 139 F.2d 409, decided December 24, 1943. We turn now to the nature of the plaintiff's proof.

Since neither the diary kept by the plaintiff's wife nor the summary or analysis made up from it were put in evidence, they are not before us and so we cannot refer to either of them directly. However, certain apparently typical entries in the diary were read into the record and from them and the testimony of the plaintiff and his wife it seems apparent that few of the entries even purported to record the actual number of hours of overtime worked by the plaintiff on any given day. Most of the entries appear to be vague and general in this respect but nevertheless the plaintiff testified they were sufficient to refresh his recollection so that

140 F.2d 442
by looking at them he could testify as to the exact number of hours of overtime he had worked on any particular day

To illustrate: The entry in the diary under the date of October 25, 1935, reads: "C.J.1 Work. I ate at Johnson's at station. Went to hairdresser's. Dollar shampoo, wave. Home at 8:30. C.J. was there", and this entry, the plaintiff says, recalled to his mind that on that day he worked three hours overtime on the defendant's books. The entry for February 1, 1940, was "C.J. worked" and then, after a description of what the keeper of the diary did, concluded with the statement that she and her husband went to bed at 10:30. From this the plaintiff said he could...

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49 practice notes
  • Cannon v. Miller, 29384.
    • United States
    • United States State Supreme Court of Washington
    • January 26, 1945
    ...the liability imposed upon him as a result of his own violation of the Federal act. George Lawley & Son Corporation v. South, 1 Cir., 140 F.2d 439; Guess v. Montague, 4 Cir., 140 F.2d 500; Travis v. Ray, D.C.Ky., 41 F.Supp. 6; Rigopoulos v. Kervan, D.C.N.Y., 47 F.Supp. 576; Bailey v. Ka......
  • Devaney v. Zucchini Gold, LLC, SJC-13176
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 14, 2022
    ...half times the regular rate' at which employed" for all hours worked over forty in a week. George Lawley & Son Corp. v. South, 140 F.2d 439, 442 (1st Cir. 1944), quoting 29 U.S.C. § 207. See Lalli v. General Nutrition Ctrs., Inc., 814 F.3d 1, 2 (1st Cir. 2016), quoting 29 U.S.C. § ......
  • Castillo v. Givens, No. 81-1520
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 6, 1983
    ...Furthermore, an employer must decide at his peril which employees are covered by the Act. George Lawley & Son Corp. v. South, 140 F.2d 439 (1st Cir.), cert. denied, 322 U.S. 746, 64 S.Ct. 1156, 88 L.Ed. 1578 In Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 1192, 90......
  • Donovan v. Shell Oil Co., No. 5722.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 7, 1948
    ...conclude that plaintiff was not employed in a bona fide administrative capacity. See George Lawley & Son Corporation v. South, 1 Cir., 140 F.2d 439, 151 A.L.R. 1081; Sun Publishing Co. v. Walling, 6 Cir., 140 F. 2d 445; Walling v. Sterling Ice & Cold Storage Co., D.C.Colo., 69 F.Sup......
  • Request a trial to view additional results
49 cases
  • Cannon v. Miller, 29384.
    • United States
    • United States State Supreme Court of Washington
    • January 26, 1945
    ...the liability imposed upon him as a result of his own violation of the Federal act. George Lawley & Son Corporation v. South, 1 Cir., 140 F.2d 439; Guess v. Montague, 4 Cir., 140 F.2d 500; Travis v. Ray, D.C.Ky., 41 F.Supp. 6; Rigopoulos v. Kervan, D.C.N.Y., 47 F.Supp. 576; Bailey v. Ka......
  • Devaney v. Zucchini Gold, LLC, SJC-13176
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 14, 2022
    ...half times the regular rate' at which employed" for all hours worked over forty in a week. George Lawley & Son Corp. v. South, 140 F.2d 439, 442 (1st Cir. 1944), quoting 29 U.S.C. § 207. See Lalli v. General Nutrition Ctrs., Inc., 814 F.3d 1, 2 (1st Cir. 2016), quoting 29 U.S.C. § ......
  • Castillo v. Givens, No. 81-1520
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 6, 1983
    ...Furthermore, an employer must decide at his peril which employees are covered by the Act. George Lawley & Son Corp. v. South, 140 F.2d 439 (1st Cir.), cert. denied, 322 U.S. 746, 64 S.Ct. 1156, 88 L.Ed. 1578 In Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 1192, 90......
  • Donovan v. Shell Oil Co., No. 5722.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 7, 1948
    ...conclude that plaintiff was not employed in a bona fide administrative capacity. See George Lawley & Son Corporation v. South, 1 Cir., 140 F.2d 439, 151 A.L.R. 1081; Sun Publishing Co. v. Walling, 6 Cir., 140 F. 2d 445; Walling v. Sterling Ice & Cold Storage Co., D.C.Colo., 69 F.Sup......
  • Request a trial to view additional results

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