Emery v. Brown Shoe Co.
| Citation | 287 S.W.2d 761 |
| Decision Date | 12 March 1956 |
| Docket Number | No. 44806,No. 1,44806,1 |
| Parties | 29 Lab.Cas. P 69,824 Henry EMERY, Appellant, v. BROWN SHOE COMPANY, Inc., a Corporation, Respondent |
| Court | United States State Supreme Court of Missouri |
Elmer M. Gaskill, William L. Mason, Jr., St. Louis, for appellant.
William G. Pettus, Jr., Shepley, Kroeger, Fisse & Shepley, St. Louis, for respondent.
Action under the federal Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. Sec. 201 et seq. to recover unpaid overtime compensation, liquidated damages and attorney fees in the sum of $46,434.00, exclusive of interest and costs. From a judgment dismissing plaintiff's petition with prejudice, plaintiff has appealed.
Plaintiff's amended petition alleged that plaintiff was employed by defendant to operate motor trucks transporting goods in interstate commerce between Missouri and other states of the United States; that defendant was engaged in the production of goods for commerce within the meaning of the federal Fair Labor Standards Act of 1938, to wit, the manufacture of shoes for sale and shipment in interstate commerce; that plaintiff's employment was subject to the Fair Labor Standards Act; that he performed overtime work for defendant in this employment between October 22, 1938 and May 30, 1945; that said Act required the payment of time and one-half for such overtime; and defendant was lawfully obligated to pay him wages and did pay him wages at the rate of $1 per hour, but that defendant had failed to pay him overtime compensation as required by said Act. Plaintiff asked judgment for the amount of the unpaid overtime and liquidated damages in an amount equal to the unpaid overtime compensation, together with interest, attorneys' fees and costs.
Defendant's answer admitted that, at all times mentioned in the petition, it was engaged in the production of goods for commerce within the meaning of the federal Fair Labor Standards Act of 1938; that the provisions of said Act relating to overtime compensation became effective on or about October 22, 1938; that plaintiff was an employee of the defendant at all times mentioned and drove and operated motor trucks transporting goods for commerce between the state of Missouri and other states; and that defendant had refused to pay plaintiff any overtime compensation. Defendant denied that any overtime compensation was due or that plaintiff's employment was covered by the federal Fair Labor Standards Act of 1938. Defendant alleged that 'Section 207 of the Fair Labor Standards Act of 1938 is the section establishing maximum hours of work for persons whose employment is covered by the Act'; that Section 213(b) of said Act provides that Section 207 'shall not apply with respect to any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49'; that Section 304(a)(3) of 49 U.S.C.A. gives the Interstate Commerce Commission the power and duty to establish for private carriers of property by motor vehicle qualifications and maximum hours of service of employees; that the 'defendant is, and was at all times mentioned in said Amended Petition, a private carrier of property by motor vehicle, as defined in Section 303(a)(17) of said Title 49'; and that 'by virtue of the foregoing, the maximum hours of service of plaintiff were not governed by the Fair Labor Standards Act of 1938.'
In his reply plaintiff alleged that 'defendant is estopped from asserting, in this action, that it is and was a private carrier of property by motor vehicle as defined in Section 303(a)(17) of Title 49 U.S.C.A. * * * and is estopped from asserting, in this action, that by virtue of the provisions of the said Section the maximum hours of service of plaintiff were not governed by the Fair Labor Standards Act of 1938.' The grounds alleged as a basis for the estoppel pleaded will be set out subsequently.
On joint oral motion of the parties, it was ordered by the court that a separate jury waived trial had, in accordance with the provisions of Section 510.180(2) RSMo 1949, V.A.M.S., on the issue of whether or not defendant was estopped from asserting the affirmative defense contained in its answer. It was stipulated that the issue to be determined was not whether defendant was a private carrier, but whether or not defendant was estopped from asserting it was a private carrier. It was further stipulated and agreed between the parties that plaintiff's employment falls within the exemption contained in Section 213(b) of the Fair Labor Standards Act, as alleged in defendant's answer, and plaintiff is not entitled to recover, unless the defendant is estopped, as stated in plaintiff's reply, from asserting its said affirmative defense. Accordingly, the issue of estoppel was separately tried to the court without the aid of a jury. At the close of plaintiff's evidence on this issue, defendant declined to offer any evidence and moved for judgment dismissing plaintiff's petition with prejudice on the ground that plaintiff's evidence failed to support the estoppel pleaded. The court sustained defendant's motion and, thereafter, dismissed plaintiff's petition with prejudice. Section 510.140 RSMo 1949, V.A.M.S.
Appellant here contends that the court erred in sustaining defendant's motion for judgment and in dismissing plaintiff's petition with prejudice.
As grounds for the estoppel, the plaintiff alleged; that defendant's business was as admitted; that defendant was not a bona fide motor carrier of any sort, within the meaning of Section 303(a)(17) of 49 U.S.C.A. or any other federal act or regulation; that prior to February 15, 1940, defendant had all of its motor carriage done for it by Ben Gutman Truck Service, Inc., a corporation, a contract carrier; that said corporation owned and controlled the trucks and employed the drivers; that prior to said date the Interstate Commerce Commission has power to regulate the hours of work of drivers for private carriers of property by motor vehicle, prescribe safety regulations and require reports, but it had not acted to exercise any of its said powers; that by reason of such failure to act bona fide private carriers as employers could work their drivers such hours as they chose, pay them what they chose, furnish such employment as they chose and make no reports to the Commission; that on February 15, 1940, to nullify the public policy of the Fair Labor Standards Act and the Interstate Commerce Act, 'defendant leased from the said Ben Gutman Truck Service, Inc., the trucks which had theretofore performed motor carriage for defendant (as well as other trucks), and accepted driveremployees of said Ben Gutman Truck Service, Inc., including this plaintiff, as defendant's employees, and defendant did then and thereafter proceed to ostensibly and supposedly operate as a private carrier of property within the meaning of federal law, though the actual maintenance and service of the said trucks, and the actual control and direction of the said employees, remained with the said Ben Gutman Truck Service, Inc.'; that said lease constituted an attempt by the employer to contract away the rights of its employees under the Fair Labor Standards Act; that, by reason of the public policy of the United States expressed in said Acts hereinbefore referred to, 'said lease and said ostensible and supposed status of defendant as a private carrier by motor vehicle were and are null, void, and of no force or effect as to plaintiff in this action'; that, effective October 15, 1940, 'the Interstate Commerce Commission, under said Part II of said Interstate Commerce Act, did establish rules and regulations for private carriers of property by motor vehicle; that said rules and regulations prescribed maximum hours for driver-employees of said private carriers and required reports to the Interstate Commerce Commission as to hours worked by same from said private carriers; but that defendant, from and after said 15th day of October 1940, and at all times thereafter mentioned in plaintiff's said petition, though supposedly and ostensibly operating as a private carrier by motor vehicle, consistently violated the said rules and regulations of the Interstate Commerce Commission in that it worked its driver-employees over said maximum hours during all of said period, and did not make reports of the hours worked for its by said driver-employees to the Interstate Commerce Commission during any of said period'; and that by reason of said premises, defendant is estopped from asserting or relying on its affirmative defense.
In support of the allegations of his reply, the plaintiff offered in evidence a contract dated February 15, 1940, by which the Brown Shoe Company leased certain described motor vehicles and equipment from the Ben Gutman Truck Service, Inc., a corporation, for the exclusive use of the Brown Shoe Company in the transportation of its own products and property. The lessor agreed to maintain the vehicles and at its own expense, furnish such licenses in the name of the lessee 'as may be required by any municipality, state or federal authority for the operation of said motor vehicles,' pay all taxes, furnish gasoline, oil, tires and accessories, keep the vehicle and merchandise insured against designated perils and carry liability insurance as therein provided. The lessee was to pay such rentals as therein provided, based upon round trip rates to various named towns in Missouri, Illinois and Indiana.
Plaintiff testified that about 1938 he went to work for Brown Shoe Company as a highway driver and worked until May 1945; that he was hired by Ben Gutman and fired by Ben Gutman and Gutman's foreman, Leonard Vohsen; that his pay checks were made out every week by Brown Shoe Company, but some one at Ben Gutman's garage would deliver the checks to him; that he thought 'the hourly rate * *...
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