Automobile Banking Corp. v. Willison

Decision Date18 November 1942
Docket Number26.
Citation28 A.2d 864,181 Md. 118
PartiesAUTOMOBILE BANKING CORPORATION et al v. WILLISON.
CourtMaryland Court of Appeals

Appeal from Circuit Court, Allegany County; William A. Huster Judge.

Action by Woodrow A. Willison against the Automobile Banking Corporation, a corporation, and another, for alleged overtime compensation, liquidated damages and attorney's fees under the Fair Labor Standards Act of 1938.Demurrer prayers were granted in favor of unnamed defendant and demurrer prayers of named defendant were refused.Verdict and judgment for plaintiff against named defendant, and named defendant appeals.

Reversed.

William A. Gunter, of Cumberland, for appellant.

Lewis M. Wilson and William R. Carscaden, both of Cumberland, and Bernard S. Needle, of Baltimore, for appellee.

Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, MARBURY, and GRASON, JJ.

COLLINS Judge.

This is an appeal from a judgment entered on a verdict by jury in the Circuit Court of Allegany County in favor of Woodrow A Willison, appellee, against the Automobile Banking Corporation, a corporation of the State of Pennsylvania, appellant.

Suit was filed by appellee against the Automobile Banking Corporation and Harold R. Bish under the Fair Labor Standards Act of 1938,29 U.S.C.A. §§ 201-219, inclusive, for alleged unpaid overtime compensation, for liquidated damages, and for attorney's fees as provided for in the act.

Harold R. Bish, one of the defendants, was employed by the Automobile Banking Corporation, appellant, as its agent for the solicitation and handling of its business of automobile financing in certain counties in Maryland, Pennsylvania and West Virginia.He was to service and collect delinquent accounts, repossess cars, and perform such other liquidating duties as were necessary for the advancement of the interests of appellant.He assumed full responsibility for the collection and adjustment of delinquent accounts and agreed to abide by the requirements of the collection department of the Automobile Banking Corporation, appellant, as to the handling of these delinquent accounts, and motor vehicles were to be repossessed by him when such action was essential to the best interests of the company.As compensation for his services, he was to receive a gross commission of fifteen per cent of the actual rate derived by appellant.

Harold R. Bish employed the appellee, Woodrow A. Willison, and paid him out of his fifteen per cent commission and also loaned the appellee his car to use in this work.He also paid the salaries of the other employees of the office and all local operating expenses and the remainder belonged to him.He paid the social security payments for appellee, and all of the office equipment was owned by Bish.

On the other hand, the forms used in the collection and adjustments of accounts were in the name of the appellant and appellant furnished appellee with a card stating that he was an adjuster from that company.Appellee gave a fidelity bond to appellant.At least once every three months the Automobile Banking Corporation sent representatives to go out with appellee and check the accounts.

At the trial of the case before a jury in the Circuit Court for Allegany County, demurrer prayers were granted in favor of Harold R. Bish, which constitutes the thirty-ninth and fortieth exceptions in this case.

The trial court refused the demurrer prayers of the appellant which is the subject of the thirty-eighth exception and which will be first considered by us here, and our ruling on that exception will make it unnecessary for us to consider the other exceptions.One of the reasons submitted in writing as to why the demurrer prayers of appellant should have been granted was: 'Because it is obvious that the Automobile Banking Corporation was not the employer of the plaintiff.'

The question for our decision is whether the appellee, Woodrow A. Willison, was an employee of Harold R. Bish or of the Automobile Banking Corporation, appellant, under the provisions of the Fair Labor Standards Act, supra.There is no dispute on the question of commerce.This act defines 'employer' and 'employee' in section 203 as follows:

'(d)'Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.
'(e)'Employee' includes any individual employed by an employer.

* * *

* * *

'(g)'Employ' includes to suffer or permit to work.'

In referring to the Fair Labor Standards Act, supra, it was said in the case of Bowie v. Gonzalez, 1 Cir.,117 F.2d 11, 16: 'The scheme of the statute is broad and comprehensive with the obvious purpose of including all employees in interstate commerce except those specifically excepted.'In the case of Robinson v. Baltimore & O. R. Co.,237 U.S. 84, 35 S.Ct. 491, 494, 59 L.Ed. 849, Mr. Justice Hughes, in discussing the Federal Employees' Liability Act, said: 'We are of the opinion that Congress used the words 'employee' and 'employed' in the statute in their natural sense, and intended to describe the conventional relation of employer and employee.'Hull v. Philadelphia & Reading R. R. Co.,252 U.S. 475, 40 S.Ct. 358, 64 L.Ed. 670.In discussing the Fair Labor Standards Act, supra, the court said in the case of Divine v. Levy, D.C.,36 F.Supp. 55, 59: 'We believe the definition in 20 C.J.at page 1244 is in support: 'Employer.The term is the correlative of 'employee', and is defined as one who employs; one who engages or keeps in service; one who uses or engages the services of other persons for pay; a person who has another in his employ to do certain things in a regular and successive way; a person or corporation employing workmen.'' Quoting in the case of Fleming v. Gregory, D.C.,36 F.Supp. 776: 'Under the definition of 'employee' contained in the Act, none of such hired help can be employees of the United States unless they were employed by the United States as 'employer'.All that the United States has done is to make a contract for the carrying of the mail with the mover, and he, in order to carry out said contract (for which he alone is responsible), has hired or 'employed' the persons referred to in the complaint; they are his 'employees' * * *.'It was said in the case of Maddox v. Jones, D.C.,42 F.Supp. 35, 40 in discussing the Fair Labor Standards Act, supra: 'Employer includes 'one acting directly or indirectly in the interest of an employer in relation to an employee.'This language means there must be a contract of employment to constitute the relationship, and necessarily there must be an employer and an employee.'In the case of Lorenzetti v. American Trust Co., et al., D.C.,45 F.Supp. 128, arising under the Fair Labor Standards Act, supra, the banks contracted with a maintenance company to furnish the banks with janitorial service and equipment on a monthly basis.The maintenance company employed and paid the janitors to work in the banks.Denying the contention of the plaintiffs that the bank was the employer, it was said at page 135:

'The question then arises whether the banks or the American Building and Maintenance Co. were the employers of the janitors within the meaning of the Act.It is not disputed that the American Building and Maintenance Co. hired the janitors, paid them, assigned them to their duties, and were responsible for insurance and other incidents of their employment.Section 3(g) of the Act provides that "Employ' includes to suffer or permit to work.'Plaintiffs assert that inasmuch as the banks suffered and permitted the janitors to work and exercised through their officials some control over the manner in which the work was done, they were employers under the Act.

'I think it cannot seriously be contended that the banks were the employers of the janitors.The facts of the employment here come...

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2 cases
1 books & journal articles
  • § 3.2.11 WHO IS AN EMPLOYER.
    • United States
    • State Bar of Arizona Employment Law Handbook Chapter 3 Wage and Hour Law Article 3.2 Fair Labor Standards Act
    • Invalid date
    ...v. Shaw, 572 F.3d 1087 (9th Cir. 2009); Lambert v. Ackerley, 180 F.3d 997, 1011-12 (9th Cir. 1999)[53] Auto. Banking Corp. v. Willison, 28 A.2d 864 (Md. 1942).[54] 29 C.F.R. § 552.1 et seq.[55] 29 U.S.C. § 203(d). [56] Vega v. Peninsula Household Servs., Inc., 2009 WL 656291 (N.C. Cal. Mar.......

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