Archer v. Musick

• Decision Date: 31 January 1947
• Docket Number: 32067.
• Citation: 25 N.W.2d 908,147 Neb. 1018
• Parties: ARCHER v. MUSICK.
• Court: Nebraska Supreme Court

25 N.W.2d 908

147 Neb. 1018

ARCHER v. MUSICK.

No. 32067.

Supreme Court of Nebraska

January 31, 1947

Syllabus by the Court.

1. When an action is brought in a state court to enforce a right arising under a federal statute, its jurisdiction must be invoked in conformity with local law and the action is governed by the state rules of practice and procedure as to all matters pertaining to the remedy.

2. An assignee of a chose in action to whom the legal title has been assigned in writing for the purpose of collection, is a proper party plaintiff, and may maintain an action thereon as the real party in interest.

3. The opinions in Hoagland v. Van Etten, 22 Neb. 681, 35 N.W 869, reported on rehearing 23 Neb. 462, 36 N.W. 755, and 31 Neb. 292, 47 N.W. 920, are overruled insofar as they are in conflict with this opinion.

4. The limitation of section 25-702 upon section 25-701, R.S 1943, which requires that causes of action united in one action must affect all the parties to the action, applies to parties plaintiff as well as defendant.

5. Where several causes of action have been united in one action, if the parties to each or all of them are proper within the meaning of the statutes, there is no defect of parties, whether or not there is a misjoinder of such causes of action.

6. By virtue of section 25-701, R.S. 1943, the plaintiff may unite several causes of action in the same petition if they are all included in the classification of 'transactions connected with the same subject of action' or 'contracts, express or implied.'

YEAGER, J dissenting.

S. L O'Brien, of Alliance, and Charles A. Fisher, of Chadron, for appellant.

Lloyd E. Peterson and Betty Jean Peterson, both of Nebraska City, Charles F. Barth and Ivan A. Blevens, both of Seward, and George I. Craven, of Lincoln, amici curiae.

Mitchell & Ganz and Donald E. Williams, all of Alliance, and Bert E. Church, of Wellington, Kan., for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CHAPPELL Justice.

Upon reconsideration, after argument of motion for rehearing, the court has concluded that its former majority opinion, Neb., 23 N.W.2d 323, should be and hereby is vacated and set aside.

Plaintiff brought the action against his former employer, defendant G. Meredith Musick, doing business as G. Meredith Musick, Architect-Engineer. His petition, as amended and supplemented, contained 40 causes of action, and sought to recover unpaid over-time compensation, together with liquidated damages, attorney's fees, and costs for himself and as assignee of 39 like claims of other employees of defendant, engaged in similar employment, on account of services performed by each in excess of 40 hours per week under similar contracts of employment which were all allegedly controlled by Title 29, sections 201 to 219, inclusive, U.S.C.A., known as the Fair Labor Standards Act of 1938.

Defendant demurred to plaintiff's petition, upon the grounds that there was: (1) A defect of parties plaintiff; (2) a misjoinder of causes of action; and, (3) generally that the petition failed to state a cause of action. The demurrer was sustained upon the first two grounds, whereupon plaintiff filed a motion requesting leave to file separate petitions for each of his causes of action and have them docketed separately. The motion was denied, after which the trial court dismissed the 39 causes of action assigned to plaintiff. He appealed therefrom to this court, assigning substantially that: (1) The trial court erred in sustaining the demurrer, and (2) erred in refusing to permit plaintiff to file separate petitions for each of his causes of action and have them docketed separately. We conclude that the trial court erred in sustaining the demurrer and dismissing the 39 causes of action assigned to plaintiff, which of necessity obviates any discussion of the second assignment of error.

Defendant concedes in his brief that 'The issue in this proceeding is solely one relating to practice and procedure in connection with the remedy.' Therefore, in this opinion we will devote our attention solely to the question whether plaintiff's petition discloses a defect of parties plaintiff, or a misjoinder of causes of action, since otherwise it concededly states facts sufficient to constitute a cause of action in favor of plaintiff and against defendant.

For that purpose, we will first review the allegations of plaintiff's petition. The first cause of action recites substantially as follows: That defendant, on April 27, 1942, and thereafter during plaintiff's employment, was an architect-engineer, engaged in commerce and the production of goods for commerce at the Alliance Air Support Transport Glider Station in Box Butte County, Nebraska, and in Provo, South Dakota. On or about May 26, 1942, defendant orally employed plaintiff as a guard at Alliance in safeguarding, checking, and performing other designated duties in connection with trucks and other described property, supplies, and materials of defendant, which were used in commerce and for the production of goods for commerce. Plaintiff was to receive as compensation therefor $1620 per annum for 2000 working hours, or $30.75 per week for 40 working hours. He was so employed by defendant for a designated period of time, during which he alleged that he worked 192 hours overtime, for which he was entitled under the Fair Labor Standards Act, allegedly controlling his relationship with defendant, to receive one and one-half times the regular rate, all of which was due and unpaid by defendant, making him liable therefor, together with an equal amount as liquidated damages, plus reasonable attorney's fees and costs, for which plaintiff prayed judgment.

The other 39 causes of action assigned to plaintiff were each drawn upon the same theory with similar applicable allegations, each of which sought from defendant like relief as assignee of like claims of others employed by defendant at or about the same time, at the same place, in employment similar to that of plaintiff. The petition also alleged that 'plaintiff brings this action for and in behalf of himself and every employee whose claim has been assigned to him and who is similarly situated and this assignment is for the purpose of collection only as provided for in Fair Labor Standards Act, Title 29, Section 216, Sub Section B. U.S.C.A. Annotated.' The separate assignments to plaintiff, which were made a part of plaintiff's petition, assigned each respective claim to him without reservation and constituted, appointed, and authorized him for his sole use and benefit: '* * * to ask, collect, demand, sue for, in his own name and right, receive, compound and give acquittances for said claim or claims, or any part thereof.'

One of defendant's contentions in his demurrer was that there was a defect of parties plaintiff, because plaintiff sued in his own right and as assignee of the 39 other claims, which constituted a misjoinder of parties plaintiff. However, it is clear that technically there could not be a misjoinder of parties plaintiff, because there was but one plaintiff. The first question presented, then, is whether there was a defect of parties plaintiff.

The authority to maintain such an action in any court of competent jurisdiction is contained in Title 29, section 216, subsection (b), U.S.C.A., which provides: 'Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. 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.'

With relation thereto, it is the rule that when an action is brought in a state court to enforce a right arising under a federal statute, its jurisdiction must be invoked in conformity with local law, and the action is governed by the state rules of practice and procedure as to all matters pertaining to the remedy. Rockwood v. Crown Laundry Co., 352 Mo. 561, 178 S.W.2d 440; Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961, Ann.Cas.1916E, 505, L.R.A.1917A, 86.

For decision, then, we must rely upon the rules of practice and procedure in this state. At the outset, we should point out that this is not technically a class action within the purview of section 25-319, R.S.1943, which provides that 'When the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.' Clearly, the allegations of plaintiff's petition do not premise his action upon any such theory or bring it in any manner within the purview of the above quoted statute. 39 Am.Jur., Parties, § 53, p. 926. Thus directly that statute is of no avail to plaintiff and, as a matter of course, whether such an action could or could not be maintained as a class action we are not called upon to decide.

There are however, other applicable statutes which not only permit plaintiff to maintain the action but also to unite all of the causes of action in one action. T...