Durant v. Powell

• Court: North Carolina Supreme Court
• Citation: Durant v. Powell, 215 N.C. 628, 2 S.E.2d 884 (N.C. 1939)
• Decision Date: 24 May 1939
• Docket Number: 607.
• Parties: DURANT v. POWELL et al.

2 S.E.2d 884

215 N.C. 628

DURANT v. POWELL et al.

No. 607.

Supreme Court of North Carolina

May 24, 1939

This is an action brought by plaintiff against defendants to recover the sum of $1508.04. The allegations of the complaint as to the foundation of the indebtedness are as follows: "That for a period of two years, eight months and twenty-seven days previous to January 27, 1935, the defendants called upon and required of him (the plaintiff) that he work, and he did work, twelve hours each day continuously for said period thereby performing during said period *** of over time work and he was entitled to receive pay for the same at the rate of 71¢ per hour. That the defendants paid the plaintiff for his regular time of eight hours per day during said period but failed to pay the plaintiff for his over time services. That the plaintiff instituted this action on July 14, 1936 and exclusive of his lost time, and within a period of three years previous to said date, he performed over time service for the defendants consisting of 2124 hours, and for which the defendants are indebted to him at the rate of 71¢ per hour, amounting to a total of $1508.04, and by reason of the defendants' failure to pay plaintiff for his over time services, the defendants have breached their contract and agreement with the plaintiff, and the plaintiff is entitled to recover of the defendants the sum of $1508.04, the same representing his over time services performed for the defendants at the request and upon the demand of the defendants, their overseers and foremen, within the period of three years next preceding the institution of this action." The demand for payment is for $1508.04.

In answer the defendants say: "That the plaintiff was employed for a period of eight (8) hours service, said period under the terms and conditions of his employment, as prescribed by the agreement between Seaboard Air Line Railway Company and employees, relating to stationary engineers and firemen, which terms and conditions were communicated to the plaintiff and accepted by him, was to be spread over a period of twelve hours. These defendants are informed and believe and therefore allege that the said plaintiff observed the said terms of his employment having taken during the time herein involved his four hours of relief during the period of twelve hours, and that he did not work over eight hours over spread of twelve, and that these defendants neither contracted for nor had any knowledge of any other hours than specified in their agreement."

For a further defense, these defendants say: "That the plaintiff was employed for eight hours service, spread over period of twelve hours and under the terms and conditions of his employment was paid for all services rendered twice each month by checks of the defendants, each of which said checks there being one for each fifteen days of employment for services rendered during said time, was accepted by the plaintiff, with full knowledge that the same were tendered in full payment for all sums that the defendants claimed were due the plaintiff, and each of said checks was accepted and the amount thereof received by the said plaintiff and applied to his own uses and purposes. *** The defendants plead said payment and plead the checks hereinbefore enumerated as an estoppel against any recovery on the part of said plaintiff against these defendants whatsoever."

The evidence of plaintiff was to the effect that he was a faithful colored employee of the S. A. L. Railway Company and had worked for it nearly thirty years. He is now retired from the service on a pension. He worked as fireman of a stationary boiler at the round-house in Hamlet for over fifteen years. He was employed to work eight hours a day and was to receive for same $3.77, and for over time of 4 hours a day 71¢ an hour for 2124 hours, amounting to $1508.04.

Plaintiff testified, in part: "That lasted until June 1, 1932. At that time Mr. Tallevast said 'Old nigger, it will be 12 hours after Monday, June 1, 1932.' After that time I was on duty at the boiler 12 hours every day and during that 12 hours no one but me looked after it. That status continued up until January 27, 1935. They never paid me for any over time during that period. The agreement was that I was to get $3.77 for eight hours service each day. *** Mr. Tallevast was the head man over the stationary boilers. It was my duty to perform my work as directed by Mr. Tallevast. He told me that after a certain time that I would have to work eight hours over a spread of twelve; yes, that is what is meant, that eight hours over a spread of twelve was that you were to work eight but spread it over twelve so as to get four hours off. That is what he told me I was to do. *** Beginning the first of January, 1932, I got a check from the railroad which I endorsed and got the money on. I never noticed what was printed on the check. I did not look at it, I was looking at the amount that was on there. I only looked at my initials and the amount. No, I paid no attention to what was printed on the check. I know that check was for the last fifteen days in December, 1931, when I endorsed it. I knew that the railroad claimed that was all that they were due me. *** I got the money on the check and used it. In February, 1932, I got a check for the second half of the month of January.

"Q. You knew they contended that was all they owed you? A. Yes, I took the check, got the money on it and used it.

"Q. Lucius, I hand you 24 checks purporting to be drawn by the receivers of the Seaboard Air Line Railway Company to your order. I wish you would look at them and tell me if you got these checks? A. Yes, my name is on them. I must have drawn them.

"Q. When you got a check you knew the railroad sent you that check for what they contended they owed you for services for the preceding fifteen days, don't you know that is right? A. It was right the way they had it. ***

"Q. You knew that they were insisting that was all they owed you? A. That was all they claimed. I had some mental reservations about that was not right. There was no need to tell them anything about it."

E. T. Huguelet, witness for plaintiff, testified, in part: "Yes, he was paid on a basis of eight hours within a spread of twelve, plus $3.77 per day for Sundays and holidays. I had no complaint about that not being correct. I have had no conversation with Lucius about his pay. If there was any dispute between Lucius Durant and the Receivers of the Seaboard Air Line Railway Company, I do not know about it. There was no complaint or dispute made to me as timekeeper."

C. J. Tallevast, witness for defendant, testified, in part: "In 1932 I had a conversation with him in respect to his firing the stationary boiler at Hamlet. At that time business conditions were poor with the railroad and traffic was light, and as a result thereof, a change was made with reference to the firing of the stationary boiler. At that particular time Durant was taken off a standard eight hour basis that is, working a standard eight hours without time off, and placed on a period of working eight hours over a spread of twelve or within a spread of twelve hours. That means, eight hours actual work spread over a period of twelve hours. That rule applies to stationary boilers and firemen. It applied to other stationary firemen and oilers than Durant, and also to other employees. Durant was told that his hours would be changed effective a certain date. I don't recall the particular day. But he was told he would work eight hours over a spread of twelve."

H. Ballenberger, witness for defendant, testified, in part: "I am in the employ of the Seaboard Air Line Railway Company at Hamlet as master mechanic. Mr. Tallevast is general foreman of the Locomotive Department. I am his immediate superior. My territory is Virginia, North Carolina division, from Cary, South Carolina, to Richmond, Virginia. Ten shops are under my supervision. I know about the rule of eight hours over a spread of twelve. We work that at practically every point. It is general throughout the shops and the general rule applies to stationary firemen at Hamlet. Q. Does that general rule apply to other stationary firemen at other shops? A. Yes, that applies to stationary firemen and other laborers. I had no notice of any complaint on the part of Lucius Durant as to hours and rate of pay until this action was instituted. *** Business was dull in 1932, 33 and 34, cut down to four or five days a week. It was over that time that Lucius was working eight hours over a spread of twelve."

The issue submitted to the jury and their answer thereto were as follows: "Are the defendants indebted to the plaintiff, and if so in what amount? A. Nothing."

The Court below rendered judgment on the verdict. The plaintiff made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

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