Anderson v. Federal Cartridge Corporation

• Decision Date: 03 September 1946
• Docket Number: No. 13312.,13312.
• Citation: 156 F.2d 681
• Parties: ANDERSON et al. v. FEDERAL CARTRIDGE CORPORATION.
• Court: U.S. Court of Appeals — Eighth Circuit

156 F.2d 681 (1946)

ANDERSON et al. v. FEDERAL CARTRIDGE CORPORATION.

No. 13312.

Circuit Court of Appeals, Eighth Circuit.

July 17, 1946.

Rehearing Denied September 3, 1946.

Harrison E. Fryberger, of Minneapolis, Minn., for appellants.

Linus J. Hammond, Asst. U. S. Atty., of St. Paul, Minn. (Victor E. Anderson, U. S. Atty., of St. Paul, Minn., on the brief), for appellee.

Before GARDNER, and THOMAS, Circuit Judges, and DUNCAN, District Judge.

GARDNER, Circuit Judge.

This was an action to recover overtime compensation, liquidated damages, and attorney fees alleged to be due by reason of the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A., §§ 201-219. By its answer defendant pleaded that plaintiffs qualified as exempt employees and for that reason were not within the overtime provisions of the Fair Labor Standards Act. The parties will be referred to as they were designated in the trial court. There were a great number of individuals named as plaintiffs, but on the suggestion of the court twelve representative cases were selected for trial and the remaining cases held in abeyance until the determination of this action.

The action was tried to the court without a jury, resulting in findings and conclusions of law to the effect that the duties, responsibility and work performed by nine of the plaintiffs were such that they qualified as exempt executive and administrative employees within the meaning of the Act, but that the remaining three did not so qualify. Pursuant to these findings the court entered judgment for the defendant in the cases of Joseph Klug, Harry F. Brown, Walter W. King, Frode Anderson, Walter Hakanson, John B. Elliott, George R. Johnson, John F. Carlson and Leo A. Day, and judgment for plaintiffs in the cases of Donald W. Stewart, George F. Owen and Joseph L. Graen. From the judgments entered an appeal was perfected on behalf of all plaintiffs, including those recovering judgments against defendant. Plaintiffs Donald W. Stewart and George F. Owens filed motions to dismiss the appeals as to them, each asserting that he was satisfied with the judgments recovered and that the appeal as to him was unauthorized. We accordingly dismissed the appeals as to said plaintiffs without prejudice to the appeals of any of the other plaintiffs.

On this appeal appellants seek reversal on substantially the following classes of alleged errors: (1) Error in adopting a fluctuating hour week formula in calculating or measuring the amount due plaintiffs; (2) error in various rulings as to the admissibility of evidence; (3) error in unduly restricting the cross-examination of defendant's witnesses; (4) error in making findings in favor of defendant; (5) error in expunging certain assignments of error set forth by plaintiffs in their notice of motion for a new trial.

Preliminary to a consideration of the issues sought to be presented we shall refer to the condition of the record. Rule 11 of this court which refers to the contents of briefs and records, provides that a brief shall contain, among other things:

"Fourth. — A separate and particular statement of each assignment of error (in criminal cases), or of each point relied upon (in civil cases), intended to be urged, with the record page thereof. If an error assigned or point relied upon relates to the admission or exclusion of evidence, the statement shall quote the evidence referred to and the pertinent objections or exceptions taken, together with the rulings of the court thereon, giving the pages of the printed record on which the quotations appear. * * *."

In the points relied upon as printed in appellants' brief, counsel do not point to any concrete action of the court or specific ruling which is challenged as erroneous, but the points go to the entire case or the theory upon which the court decided the issues. For instance, Point 1 reads as follows:

"The record discloses that the trial court possessed an entire misconception of the law of this case, and each and all his rulings, findings and decisions were controlled or influenced by his misconception of the law. This misconception was evidenced by his rulings as to the formula to be selected, the relief to be granted, by his failure to observe the doctrine of judicial notice, as to burden of proof, by his commission of some 815 reversible errors of law involving substantial rights of the plaintiffs or one or more of them; that the proceedings at the trial may well be the most erroneous of those adopted in any case in the annals of the Eighth Circuit Court of Appeals. These misconceptions are also further outlined in succeeding points * * *."

The foregoing may be said to be typical but one or two more will be given.

Point IV is as follows:

"The trial court erred in its assumption that the case of Snyder v. Wessner, D.C., 55 F.Supp. 971, a case concerning the personnel of a tailor shop, is controlling in this suit, although the case at bar involves a war plant controlled by the United States Army * * *."

Point V is as follows:

"The refusal or failure of the trial court to take judicial notice of the decision of McCandless v. United States, 298 U.S. 342-347, 56 S.Ct. 764, 80 L.Ed. 1205, must be regarded as a very extreme error from whatever angle the same is viewed * * *."

Point VIII is as follows:

"The trial court erred in its violation of the rule laid down by the United States Supreme Court in Manning v. Insurance Co., 100 U.S. 693-698, 25 L.Ed. 761, to the effect there must be some open and visible connection between the principal or evidentiary matter and the deductions to be made therefrom, and does not permit a decision to be made upon remote inferences. (Reference is hereby made to Point VIII as found in record, pages 1066-1067, and especially to the items a, b, c, d, e and f in our argument of Point X, R. 1067-1068) * * *."

These points challenge no specific action or ruling of the court. The purpose of the rule requiring that appellant's brief shall contain a separate and particular statement of each point relied upon is to point out to the appellate court and to opposing counsel the specific ruling or action which is challenged as erroneous without going beyond the assignment itself, and to limit the presentation in the appellate court to the matters in the points or specifications as stated in the brief. Cohen v. United States, 8 Cir., 142 F.2d 861; E. R. Squibb & Sons v. Mallinckrodt Chemical Works, 8 Cir., 69 F.2d 685; Hard & Rand v. Biston Coffee Co., 8 Cir., 41 F.2d 625; Butler v. United States, 8 Cir., 108 F.2d 27; Ed S. Michelson, Inc. v. Nebraska Tire & Rubber Co., 8 Cir., 63 F.2d 597. The error assigned must be sufficiently specific so that the attention of the court is directed to the specific action or ruling of the court without requiring the court to search the record to determine what the issue is. Certain of the points or assignments are directed generally to the rulings of the court on the admissibility of evidence but none of these points which seek to challenge the rulings of the court on the admissibility of evidence quote the evidence referred to; neither do they give the objections that were interposed, nor the rulings of the court on the objections.

This is an appellate court sitting to review alleged errors of law, and not to try the action de novo.

So far as the rulings of the trial court on the admissibility of evidence are concerned, we shall not consider them further than to observe that for the most part they urge that the court erred in admitting testimony produced by the defendant rather than that the court rejected testimony offered by the plaintiffs. As the case was tried to the court without a jury it will be presumed on appeal that the court considered only the competent evidence and hence, its rulings in admitting evidence can not be urged as prejudicial if there is competent evidence to sustain the judgment appealed from. Anderson v. United States, 8 Cir., 65 F.2d 870; Clauson v. United States, 8 Cir., 60 F.2d 694; Howells State Bank v. Novotny, 8 Cir., 69 F.2d 32; Wade v. Blieden, 8 Cir., 86 F.2d 75.

By liberally construing the points relied upon in favor of the plaintiffs, we think they are sufficient to raise the question as to the sufficiency of the evidence to sustain the court's findings to the effect that plaintiffs, other than Stewart, Owens and Graen, were exempt employees under the Fair Labor Standards Act. We also think from a careful study of the entire record that this is the only substantial issue in the case.

Rule 52 of the Federal Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, provides among other things, that, "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." The findings of the court are presumptively correct and will not be set aside unless resulting from an erroneous view of the law or are clearly against the weight of the substantial evidence, and in considering this question we view the evidence in the light most favorable to the prevailing party, the burden being on the unsuccessful party to show that the evidence compelled a finding in his favor. United States v. Perry, 8 Cir., 55 F.2d 819; United States v. Nelson, 8 Cir., 102 F.2d 515; American Ins. Co. v. Scheufler, 8 Cir., 129 F.2d 143; American Alliance Ins. Co. v. Brady Transfer & Storage Co., 8 Cir., 101 F.2d 144. As we do not consider the credibility of...