Gale v. Fruehauf Trailer Co.

• Decision Date: 22 January 1944
• Docket Number: 35963.]
• Citation: 145 P.2d 125,158 Kan. 30
• Parties: GALE v. FRUEHAUF TRAILER CO.
• Court: Kansas Supreme Court

145 P.2d 125

158 Kan. 30

GALE v. FRUEHAUF TRAILER CO.

No. 35963.]

Supreme Court of Kansas

January 22, 1944

Syllabus by the Court.

A specification of error stating merely that the court erred in rendering judgment in favor of defendant and against plaintiff does not properly present any question for appellate review. Gen.St.1935, 60-3826, Rule No. 5.

An appellate court has nothing to do with the weight of the testimony, so long as there is some substantial evidence to support the judgment, irrespective of any contrary evidence which the trial court was disinclined to believe.

Where the denial at the plaintiff employee's motion for a new trial was not assigned as error in an action for overtime pay under the Fair Labor Standards Act, the sufficiency of the evidence to support the judgment for the employer could not be considered. Fair Labor Standards Act of 1938, 29 U.S.C.A § 201 et seq.

In an action against a trailer manufacturing company by the ex-foreman of a service department connected with its retail sales branch, to recover overtime pay under the Fair Labor Standards Act, the trial court properly found an estoppel against the foreman, who kept one record of his overtime for the company, which paid him accordingly, and secretly kept another record of his own, allegedly because the headquarters office was insisting that overtime should be held to a minimum. Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.

In an action against a foreign trailer manufacturer by the ex-foreman of a service department connected with its local retail sales establishment, for overtime pay under the Fair Labor Standards Act, his contention that the major part of his work was in interstate commerce could not be sustained in view of the trial court's findings to the contrary and of the statutory provision excluding employees engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce. Fair Labor Standards Act of 1938, §§ 6, 7, 13(a) (2), 29 U.S.C.A. §§ 206, 207, 213(a) (2).

In an action to recover overtime pay alleged to be due under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., the record examined and held: (1) Appellant's specification of error does not properly present any question for appellate review. (2) The question whether plaintiff has maintained his cause by the greater weight of the evidence is addressed to the judgment of the trial court, not to the supreme court. (3) Where no error is assigned on the overruling of plaintiff's motion for a new trial, the sufficiency of the evidence to support the judgment is not open to appellate review. (4) Where plaintiff was employed by defendant and one of his duties was to keep the record of his own work hours and he was paid for overtime according to that record, the trial court did not err in holding that he was estopped to recover additional overtime pay based on a private record also kept by himself of which his employer had no notice. (5) No error appears in the trial court's finding that the greater part of defendant's business at its Wichita branch, where plaintiff had been employed, was exempted from the governance of the Act, by the explicit terms of sec. 213, 29 U.S.C.A.

Appeal from District Court, Wyandotte County, Division No. 1; Edward L. Fischer, Judge.

Action by Charles William Gale against the Fruehauf Trailer Company for overtime pay allegedly due under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Judgment for defendant, and plaintiff appeals.

Paul H. Ditzen, of Kansas City (Hylton Harman, of Kansas City, on the brief), for appellant.

Harry Miller, Jr., of Kansas City (Carl V. Rice and Donald Martin, both of Kansas City, on the brief), for appellee.

DAWSON Chief Justice.

This was an action by an ex-employe of defendant to recover for overtime pay alleged to be due him for services under the Fair Labor Standards Act of 1938, 29 U. S.C.A. § 201 et seq.

Plaintiff alleged that defendant Fruehauf Trailer Company, a corporation, was engaged in the business of manufacturing, repairing and servicing trailers and parts of trailers, that in its corporate business it was engaged in interstate commerce, and that it maintained branches in Kansas City, Kansas, in Wichita, Kansas, and Detroit, Michigan.

Plaintiff alleged that from May 9, 1940, until April 1, 1942, he was employed as a workwman in defendant's branch plant and maintenance shop in Wichita, and that during all that time defendant at its Wichita establishment serviced new trailers which had been manufactured by defendant at its factory in Michigan, and which had been hauled to its branch sales plant in Wichita; that defendant serviced trailers and trucks thereat; that such trucks and trailers were driven into Kansas from other states, and that defendant serviced and repaired trucks and tanks used to haul gasoline from Texas and Oklahoma to other states; that at Wichita defendant maintained a large store room in which it kept trailer and truck parts which had been shipped from Detroit; that defendant rebuilt refrigerator trailers and installed cooling systems; and that such refrigerators were used to haul meat and packing house products from various interstate points to Wichita, and from Wichita to various interstate points outside of Kansas.

Plaintiff alleged that while employed by defendant he did welding, repairing brakes and defects in trucks and trailers which had come from outside the state and which were en route to points beyond the state line; that he worked on many trailers which had been manufactured in Detroit and which were sold in Wichita; that he supervised the use and sale of truck and trailer parts and kept the records of them; that this work required him to put in overtime, for which he had demanded overtime pay which defendant had refused.

In his petition plaintiff alleged in detail his regular per diem rate of pay and the alleged overtime hours he worked for which he was entitled to overtime pay, aggregating 916.5 overtime hours for which he was entitled to $944.62 as overtime pay, plus $944.62 as the statutory penalty together with $1,000 as a reasonable attorney's fee, and another $1,000 as an attorney's fee if the final judgment of the district court should be appealed to this court.

In its answer defendant admitted its corporate capacity, that its home office and principal place of business was at Detroit, Michigan, and that it had branch plants at Kansas City and Wichita.

Defendant's answer also contained a general denial, and alleged that its principal business at its Wichita branch was the retail sale of trailers manufactured elsewhere and shipped to its Wichita branch; that as a supplement to its retail sales business it maintained a general service and maintenance department for the repair of trailers; that the greater part of such servicing and selling was in intrastate commerce, and that defendant's employes at its Wichita plant including plaintiff, were expressly exempted under section 13 (a) (2) of the Fair Labor Standards Act from the minimum wage and maximum hours provisions of that statute.

Defendant's answer further alleged that plaintiff was employed as foreman in charge of its service department in Wichita, in which capacity he himself kept the daily work records of all employes, including his own, and that defendant relied thereon and charged its customers for services to them in accordance with such records prepared by plaintiff, and its payrolls for its employes were prepared and paid accordingly; that all its employes including plaintiff were paid their regular wage scale plus time and one-half for overtime as prepared by plaintiff; that defendant had no knowledge of any inaccuracy in the work sheets kept by plaintiff, but believed them to be accurate; and that defendant believed that at all times it was conforming to the provisions of the Fair Labor Standards Act although not legally bound to do so; and that: "Plaintiff is estopped from now asserting that the said reports prepared by him were incorrect and that he is entitled to additional overtime compensation."

Plaintiff's reply traversed all the material allegations of the answer and on the issues...