Great Atlantic & Pac. Tea Co. v. Nobles, I-349
| Decision Date | 05 September 1967 |
| Docket Number | No. I-349,I-349 |
| Parties | 56 Lab.Cas. P 31,965 GREAT ATLANTIC AND PACIFIC TEA COMPANY, a corporation, Appellant, v. Charles NOBLES, Appellee. |
| Court | Florida District Court of Appeals |
Lynn C. Higby, of Isler & Welch, Panama City, for appellant.
Robert B. Staats, Panama City, for appellee.
The defendant in an action for overtime compensation has appealed from an adverse final judgment entered by the Circuit Court for Bay County, based upon a jury verdict.
Three points on appeal are raised by the appellant for our determination in this appeal: whether at the trial the Circuit Court committed reversible error: (1) in permitting the plaintiff to testify from a memorandum which he had prepared shortly before the trial; (2) in striking the defense of the Florida Statute of Limitations and in denying a directed verdict based thereon; and (3) in charging the jury in accordance with an instruction requested by the plaintiff concerning the application of a 1961 amendment to the Federal Fair Labor Standards Act of 1938.
In its complaint the appellee-plaintiff seeks recovery of damages for overtime compensation under two theories of recovery. The first theory is that the defendant was required to pay such compensation under the provisions of the Fair Labor Standards Act (29 U.S.C. §§ 201--219); and under the second theory the plaintiff predicates his claim for overtime compensation upon a breach of his contract with the defendant. While the plaintiff contends in his appellate brief that the first theory is the only theory of recovery stated in his complaint, we think that a fair reading of the complaint leads to a conclusion that recovery is sought therein under both of the said theories, as the defendant contends in its appellate brief.
To the plaintiff's said complaint the defendant filed an answer substantially denying the plaintiff's claim and pleading the Florida Statute of Limitations.
The trial evidence shows that the plaintiff was employed by the defendant as a helper in its produce department in July of 1955, and his employment by the defendant ended in July of 1964. During this period his weekly salary was increased from $55 to $75 a week. On January 6, 1965, the plaintiff filed this action for overtime compensation.
At the conclusion of the trial the jury returned a verdict for the plaintiff in the amount of $1,106.50, and a final judgment, based upon the verdict, was entered by the trial court, from which judgment the defendant has taken this appeal.
During the course of the trial, beginning on September 19, 1966, the plaintiff produced a memorandum which, he testified, he had prepared 'about two or three weeks ago,' listing the overtime hours which the plaintiff claimed he had worked each week from January 5, 1963, until July 18, 1964. The defendant's objection to the plaintiff's use of this memorandum in his testimony was overruled by the trial court, and the plaintiff was permitted to testify at length while using the memorandum. The plaintiff prepared this memorandum by using old calendars for the years 1963 and 1964, which calendars contained no information other than the dates. In his testimony the plaintiff admitted that he could not testify concerning the overtime hours he had worked during each of the claimed weeks without looking at his memorandum.
In our opinion, permitting the plaintiff to testify from the said memorandum was contrary to the fundamental evidentiary rule as stated by the Supreme Court of Florida in Volusia County Bank v. Bigelow, 45 Fla. 638, 33 So. 704 (1903):
...
To continue reading
Request your trial
-
Middleton v. State
...correctly express it. Volusia County Bank v. Bigelow, 45 Fla. 638, 646, 33 So. 704, 706 (1903); See also Great Atlantic & Pacific Tea Co. v. Nobles, 202 So.2d 603 (Fla. 1st DCA 1967), cert. denied, 210 So.2d 225 (Fla.1968); King v. Califano, 183 So.2d 719 (Fla. 1st DCA 1966). We conclude th......
-
Garrett v. Morris Kirschman & Co., Inc.
...Tenn. 502, 327 S.W.2d 308 (1959), Cert. den. 361 U.S. 930, 80 S.Ct. 372, 4 L.Ed.2d 354 (1960). But Cf. Great Atlantic & Pacific Tea Co. v. Nobles, 202 So.2d 603 (Fla.App.1st Dist., 1967). As a corollary to the rules allowing such wide latitude in the choice of writings as mnemonic aids, he ......
-
State v. Huelett
...Ala.App. 287, 291, 299 So.2d 333, 336-37 (Crim.App.1974); State v. Crow, 486 S.W.2d 248, 257 (Mo.1972); Great Atlantic & Pacific Tea Co. v. Nobles, 202 So.2d 603, 605 (Fla.Ct.App.1967); State v. Scott, 199 Kan. 203, 206, 428 P.2d 458, 460 (1967); State v. Adams, 181 Neb. 75, 82, 147 N.W.2d ......
-
McCoy v. State, 75--1176
...465; Amato v. State, Fla.App.1974, 296 So.2d 609; Wetherington v. State, Fla.App.1972, 263 So.2d 294; Great Atlantic and Pacific Tea Company v. Nobles, Fla.App.1967, 202 So.2d 603; Sims v. State, Fla.App.1966, 184 So.2d 217; and King v. Califano, Fla.App.1966, 183 So.2d ...