This
was an action brought by plaintiff against the defendant in
which he contended that he was a night watchman engaged in
interstate commerce and came within the provisions of the
National Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201
et seq.
At the
first trial a judgment as in case of nonsuit, C.S. § 567, was
entered. From that judgment an appeal was taken to this
Court. The judgment of the Superior Court was reversed.
Hart v. Gregory, 218 N.C. 184, 10 S.E.2d 644, 130
A.L.R. 265. Upon the mandate coming down to the Superior
Court another trial was had.
The
issues submitted to the jury and their answers thereto, were
as follows:
"1.
Was the plaintiff employed in an occupation necessary to the
production of goods within the meaning of the Fair Labor
Standards Act of 1938, as alleged in the complaint? Answer
No.
"2.
What amount did defendant pay plaintiff as wages between the
dates of November 7, 1938, and June 10, 1939? Answer: --.
"3.
How many hours did plaintiff work for defendant during said
period of time? Answer: --.
"4.
Exclusive of any penalty or attorney's fee, what amount
if any, is the plaintiff entitled to recover of the defendant
for unpaid minimum wages and unpaid overtime compensation?
Answer: --."
It was
agreed that the Court might answer the 2nd, 3rd and 4th
issues, dependent upon the jury's answer to the 1st
issue. Judgment was rendered for defendant on the verdict.
The plaintiff excepted, assigned error and appealed to the
Supreme Court.
R. B
Lowry and John H. Hall, both of Elizabeth City, for
plaintiff.
R. M
Cann, of Charlotte, and R. Clarence Dozier, of Elizabeth
City, for defendant.
CLARKSON
Justice.
The
record discloses that the defendant, employer of plaintiff,
was operating a lumber mill and was engaged in the production
of goods for commerce, under the Fair Labor Standards Act of
1938.
The
Court below charged the jury as follows (to which plaintiff
excepted and assigned error): "Now, gentlemen, when you
come to this issue and it is given to you and you retire to
your room, I want to say to you that the burden of the issue
is upon the plaintiff to satisfy you from the evidence and by
its greater weight. The case has heretofore been to the
Supreme Court of North Carolina and has been reported in the
218th volume at pages 184 and 193, both inclusive [10 S.E.2d
644, 130 A.L.R. 265], and that when it went to the Supreme
Court the first time our Supreme Court said on page 192
thereof [on page 649 of 10 S.E.2d]: 'he fed water to the
boilers which were necessary in the production of goods.'
Therefore it concerns you only to find as a fact, the burden
of the issue being upon the plaintiff to so satisfy you from
the evidence and by its greater weight as to whether or not
Mr. Hart did actually, as a part of his employment, feed the
water to the boilers during the evening, and the court
charges you if you find from the evidence and by its greater
weight that under the terms of the employment between the
plaintiff and the defendant, the plaintiff, in addition to
his duties as watchman, was required to keep water in the
boilers, then it will be your duty to answer the first issue
'Yes'. If you do not so find, gentlemen, it will be
your duty to answer it 'No'." The jury answered
the issue "No".
We
think the charge correct under the opinion heretofore
rendered in this case. We said, 218 N.C. at page 192, 10 S.E.
2d at page 649: "The present case we think comes within
the provisions of the Fair Labor Standards Act, as the duties
of this night watchman were more than that ordinarily
required of one so termed. The duty of plaintiff was to keep
water in the boiler so that in the morning steam could easily
be available. If the boilers were not kept filled up at
night, they would have burned dry and that would have ruined
them and made them unfit for use. It is clearly apparent that
the man who attended to the boiler in the day was engaged in
'occupation necessary to the production thereof' of
goods. Why should not the man at night whose duty it was to
keep the boiler fit for service in the production of goods
receive the same benefit accorded men directly at work
producing these goods? His duties were more than a night
watchman, he fed water to the boilers which were necessary in
the production of goods."
On the
trial in the Court below the evidence, pro and con, was
conflicting. The jury has decided this question of fact for
the defendant.
The
plaintiff requested the Court below to charge the jury:
"If you find from the evidence and by its greater weight
that plaintiff was employed by defendant as a watchman of his
mill, then it would be your duty to answer the first issue
'Yes'." This request was refused and in this we
can see no error.
The
language...
