Cannon v. Miller

Decision Date26 January 1945
Docket Number29384.
Citation22 Wn.2d 227,155 P.2d 500
PartiesCANNON v. MILLER et al. BARGER v. SAME.
CourtWashington Supreme Court

Separate actions by Ross Cannon and by C. A. Barger against Addison Miller, A. T. Miller, and George Faltico, partners, doing business under the name and style of Addison Miller Company and others, to recover under the wage and hour provisions of the Fair Labor Standards Act, which actions were consolidated for trial. Judgment for plaintiffs, and defendants appeal.

Case remanded with directions.

MILLARD J., dissenting in part.

Appeal from Superior Court, Grays Harbor County Wm. E. Campbell, judge.

C. E. H. Maloy, of Seattle, for appellants.

W. E. Heidinger, and Oliver Malm, both of Tacoma, amici curiae.

F. L. Morgan, of Hoquiam, for respondents.


Two plaintiffs brought separate actions against identical defendants to recover unpaid wages, overtime compensation, liquidated damages, and attorneys' fees, alleged to be due and owing to plaintiffs, or recoverable by them, respectively, under the provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060 to 1069, incl., 29 U.S.C.A. §§ 201 to 219, incl. The causes were consolidated for trial and were heard by the court sitting without a jury. At the conclusion of the evidence, and after taking the matter under advisement, the court made findings and conclusions, upon which it entered a single judgment granting to both of the plaintiffs the relief sought. Defendants appealed, and, upon the appeal, the causes have again been consolidated for hearing and disposition.

Respondents predicated their actions upon §§ 6 and 7 of the Fair Labor Standards Act of 1938, 52 Stat. 1062, 1063; 29 U.S.C.A. §§ 206, 207. Section 6 of that act provides that every employer shall pay to each of his employees who 'is engaged in commerce or in the production of goods for commerce' certain prescribed minimum wages. Section 7 of the act provides that no employer shall employ any of such employees for a longer work week than as specified in that section, unless such employee receives compensation for the excess hours of his employment at a rate not less than one and one-half times the regular rate at which he is employed. We shall hereinafter use the term 'overtime compensation' to designate the increased compensation for overtime work.

Appellants' first assignment of error is directed to the action of the trial court in overruling their objections to the introduction of any testimony, the ground assigned for the objections being that the respective complaints did not state facts sufficient to constitute a cause of action.

Omitting its formal parts, the complaint of the respondent Cannon alleged that the appellants at all times here involved were engaged in business in this state under special contract with Northern Pacific Railway Company, Chicago, Milwaukee and St. Paul Railway Company, and Oregon-Washington Railway Company, and by virtue of such contract were engaged in, and connected with, trade, commerce, transportation, transmission, and communication among the several states, that is to say, in interstate commerce; that for a number of years last past, since the passage of the Fair Labor Standards Act of 1938, respondent Cannon was employed by appellants as a watchman and laborer in the performance of appellants' contract with the above-named railroad companies; that in the performance of such labor respondent came within the provisions, and was entitled to the benefits, of the Federal act above mentioned; that continuously during the period alleged in the complaint respondent received less wages and was employed for work weeks of longer hours than those required or permitted by that act; and that under the provisions of that same act respondent became entitled to a judgment against the appellants in double the amount of a specified sum representing a balance of wages owing to him for both straight time work and overtime work, together with an attorney's fee to be fixed by the court.

The complaint of the respondent Barger contained virtually the same allegations as those of the Cannon complaint and, in addition, gave a more detailed statement of appellants' activities under the alleged contract with the railroad companies and of Barger's connection with such activities, all of which, it was alleged, involved the performance of services in watching, guarding, firing, and 'hostlering' railway engines used in interstate and foreign commerce.

Appellants did not move to make the complaints more definite and certain, nor did they by demurrer raise any question as to the sufficiency of the allegations thereof to constitute causes of action. Instead, appellants filed their answers and amended answers denying the material allegations of the two complaints and, in addition, setting up as affirmative defenses (1) the two-year statute of limitations, and (2) a claim that the wage and hour provisions of the Fair Labor Standards Act did not apply to the respondents, by reason of the alleged fact that respondents were engaged in a service establishment, the greater part of whose servicing was in intrastate commerce, as provided for in subdivision (a)- (2) of section 13 of the Federal act, 52 Stat. 1067, 29 U.S.C.A. § 213(a)(2). Respondents replied, denying the allegations of the affirmative defenses.

Issues having been joined, the two causes were consolidated and the trial began. After the first witness, respondent Barger, had taken the stand and had testified in answer to a few preliminary questions, appellants objected to the introduction of any further evidence on his behalf, on the ground that his complaint did not state facts sufficient to constitute a cause of action. The same objection was later interposed when respondent Cannon took the stand. In each instance, respondents' counsel at once demanded that appellants point out wherein the complaints were deficient. Appellants made no effort to comply with the demand. The trial court overruled appellants' objection for the nonce, but at the same time stated that it would be reconsidered at the conclusion of all the evidence. The trial then proceeded, and respondents offered their evidence, further reference to which will be made a little later herein.

The specific contention made by appellants upon this first assignment of error is that the complaints did not plead any facts showing that the work performed by respondents was in interstate commerce or was so closely related to the movement of goods in interstate commerce as to form a part thereof, and that respondents' allegations touching that subject were mere conclusions.

While the overruling of a demurrer to a complaint or the failure to interpose a demurrer thereto does not preclude the adverse party, at the calling of the case for trial, from objecting to the introduction of any evidence on the ground that the complaint does not state facts sufficient to constitute a cause of action, nevertheless, if the complaint be for the first time attacked in the last-mentioned manner, the pleading will be liberally construed and, in passing upon such objection, the court will bring to the support of the pleading every reasonable intendment and legitimate inference that may be drawn from its allegations and also from the evidence adduced to sustain the plaintiff's cause. O'Day v. Ambaum, 47 Wash. 684, 92 P. 421, 15 L.R.A.,N.S., 484; Hamilton v. Johnson, 137 Wash. 92, 241 P. 672; 41 Am.Jur. 516, 517, Pleading, §§ 327, 328.

Another well-settled rule applicable to a situation such as the one presented here is that if substantial facts which constitute a cause of action are stated in the complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth therein, although the allegations of these facts are in effect conclusions of law, or are otherwise imperfect, incomplete, or defective, such insufficiency pertaining to the form rather than to the substance of the pleading, the proper mode of correction is not by demurrer nor by excluding evidence at the trial, but by a motion Before trial to make the averments more definite and certain by amendment. Harris v. Halverson, 23 Wash. 779, 63 P. 549; Grout v. Tacoma Eastern Railroad Co., 33 Wash. 524, 74 P. 665; Loveday v. Parker, 50 Wash. 260, 97 P. 62; Ankeny v. Pomeroy Grain Growers, Inc., 170 Wash. 1, 15 P.2d 264.

In the light of these rules, and under the circumstances here presented, the complaints were, in our opinion, sufficient to withstand appellants' motion to exclude the evidence and, likewise, sufficient to permit proof in support of respondents' causes of action as alleged therein.

Appellants next assign as error the action of the trial court in overruling their challenge to the legal sufficiency of respondents' evidence and denying their motions for nonsuit and dismissal of respondents' actions. The contention made by appellants on this assignment is that respondents failed to prove by their evidence that they were engaged in interstate commerce or that their activities were so closely related to the movement of such commerce as to form a part thereof. Respondents' evidence on that subject may be summarized as follows:

At all times involved herein, appellants were general labor contractors engaged in the business of employing and supplying laborers to perform services for other employers including railroad companies. Pursuant to a special contract made with the Northern Pacific Railway Company, appellants supplied certain workmen, including respondents herein, for work in connection with the servicing and movement of trains of the three railroad companies previously mentioned. Cannon was employed in a railroad yard at Hoquiam; Barger was...

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