Gale v. Fruehauf Trailer Co., 35963.]

• Court: United States State Supreme Court of Kansas
• Writing for the Court: DAWSON, Chief Justice.
• Citation: 145 P.2d 125,158 Kan. 30
• Parties: GALE v. FRUEHAUF TRAILER CO.
• Docket Number: 35963.]
• Decision Date: 22 January 1944

145 P.2d 125

158 Kan. 30

GALE
v.
FRUEHAUF TRAILER CO.

No. 35963.]

Supreme Court of Kansas

January 22, 1944

[145 P.2d 126]

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...