The
complaint alleges, in part:
"(2)
That at the time hereinafter complained of the defendant was
engaged in the business of manufacturing and selling lumber
and said defendant at said times sold lumber to parties in or
at places outside of the State of North Carolina and
transported or had the same transported from his said mill or
place of business at Shawboro, North Carolina, to places
outside of North Carolina. That the defendant, as employer
and the plaintiff as employee were at the times hereinafter
referred to and complained of engaged in the production and
sale of goods in commerce within the meaning and definitions
of the 'Fair Labor Standards Act of 1938'.
"(3)
That the plaintiff was employed by the defendant and worked
for him, as aforesaid, at his said lumber or manufacturing
plant at Shawboro, North Carolina, from November 7th, 1938
to and including June 10, 1939, the said plaintiff having
been an employee of the defendant, engaged in commerce or in
the production of goods for commerce within the meaning of
the aforesaid Act of 1938. The said plaintiff, over said
period of time, pursuant to his said employment, performed
work and labor for said defendant at his aforesaid place of
business, and in connection therewith and as a part
thereof--his duties and services having been those of a
watchman at said plant or mill, inspection of and work in
connection with the boilers and other machinery used in the
operation of said lumber mill and the manufacture of said
lumber, and other work in connection with the operation of
said lumber mill and the manufacture of said lumber.
"(4)
That during said time the plaintiff worked for the defendant
in said employment eleven hours per day, or a total of 2376
hours, and was paid as wages only the gross amount of
$255.61. That the defendant paid the plaintiff nothing for
the overtime which he worked, and paid plaintiff wages of
only 10.33¢ per hour.
"(5)
That plaintiff was entitled to be paid by defendant a minimum
wage of not less than 25¢ per hour and should have worked
during said period of time, unless paid for overtime, a
maximum of only 1364 hours during the said 216 days that he
was employed by and worked for the said defendant in the
production of goods for commerce, as aforesaid.
"(6)
That because of the matters and things hereinbefore set out
defendant is indebted to the plaintiff for unpaid minimum
wages of $197.37 and unpaid overtime compensation of $379.50
with interest, together with additional equal amounts as
liquidated damages, making a total of $1,153.74, with proper
interest; and plaintiff is further entitled to recover of the
defendant a reasonable attorney's fee, and the costs of
this action."
Judgment
for the above sum was demanded.
Defendant
in his answer says: "Answering the second section of the
Complaint, the defendant admits that he is engaged in the
business of manufacturing and selling lumber and that some of
the lumber manufactured by him is transported to places
outside of North Carolina. *** Answering the third section of
the Complaint the defendant admits the plaintiff to have been
in his employment from November 7, 1938, to, and including
June 10, 1939, as a night watchman, with the duties usually
incident to such employment and none other. *** Answering the
fifth section of the complaint, the defendant denies the
same. He says, however, that if the plaintiff comes within
the provisions of the 'Fair Labor Standards Act of
1938' which is again denied, nevertheless, the defendant
has fully discharged each and every of his obligations unto
the plaintiff." The other material allegations of the
Complaint are denied.
Plaintiff
testified, in part: "I had occasion to work for the
defendant, Mr. P. P. Gregory. I worked for him from November
7th, 1938, up until June 10, 1939. I was night watchman for
him at his sawmill at Shawboro, Currituck County, North
Carolina. It is about 11 miles from here and Shawboro is on
the main highway from here to Norfolk, and is on the Norfolk
Southern Railroad, which runs from Norfolk into North
Carolina. I worked seven days a week and eleven hours a day.
This was from November 7, 1938, to June 10, 1939, and was
according to the terms of my contract of employment. I was to
make twelve punches, I was to go on at six and make the last
punch at five in the morning. That is 11 hours a day, seven
days to the week. My duties were to punch the clock, go
around the lumber yard and the mill, see that there was no
fire or anything like that, see that nobody was taking
anything away on my hours. There was no one else on duty at
the mill when I was on duty, and this is a pretty fair sized
mill, I
should say it employed about 20 or 25 men regularly. They
were cutting lumber and piling lumber and loading cars. It
was a lumber mill. Under my employment I was required to pump
the boilers up to keep the water in the boilers as long as
the steam was up, so they would not get dry. I had to pump
them every two or three hours until about 12 o'clock some
nights, and sometimes longer, depending on how the fire was
left. I would pump the water with a force pump operated by
steam, and when the pump would be broken down I would use an
injector--the injector was used by turning on to pump the
water from the well into a barrel, and then use a pump to
pump it from the barrel into the boiler. Mr. Gregory would
keep fires going in the boilers all night and there would be
fire in the morning. They would take and throw in wood, and
would never hardly ever have to use a match to light it. They
ran the mill with steam generated from those boilers, and the
steam furnished the power for the machinery in the mill. It
was necessary to have those boilers filled up with water, and
if they had not been kept filled up at night they would have
burned dry and that would have ruined the boilers. The mill
foreman told me to pump up the boilers at 8 o'clock, and
they would have to be pumped after that. I have pumped as
high as four or five times in a night, and would average
three or four times. A glass showed whether the boilers did
or did not have water in them, and I was supposed to keep
enough water in them so that the fireman could raise the
steam in the morning without slowing down. I was not paid
anything extra for that. Mr. Duncan asked me if I would watch
the wood pile and not let anybody take any of the wood away
except he would send a note to let them have it, and I would
occasionally deliver under these orders. During the eleven
hours that I was on the job I was required to stay on the
defendant's mill premises, and did stay. During the time
I was working over there Mr. Gregory sold some of the lumber
from this operation in Norfolk, Va. I have been on the yard
different times when the trucks were loading for Norfolk.
There was lumber put out there for the Ballard Fish Company
at Norfolk that they built the new oyster house with. I heard
Mr. Gregory say once or twice he had orders in Norfolk, some
orders for lumber for the Cement Plant over there. During the
time I was working for Mr. Gregory I have been in Norfolk and
seen some of Mr. Gregory's lumber up there. It was lumber
that had been shipped from the Shawboro mill. They were
loading cars right about every day right straight along
going out. I have heard Mr. Gregory and Mr. Duncan say that
they had to get the lumber ready and get the trucks so that
they could haul it out of there so as to load on a sailboat
for hauling to Baltimore. Mr. Gregory had trucks operating in
and out of the yard. The sailboat was in Elizabeth City and
the Baltimore I referred to is in the State of Maryland.
There was a railroad siding at the mill alongside of the main
railroad track, and that would be picked up by a through
freight train during the night, bound for Norfolk. The
through freight did not make local stops between Shawboro and
Norfolk. The local freight ran between 10 and 11 o'clock
during the day. Mr. Gregory had two or three trucks operating
in and out of that plant while I worked there, and they
hauled from Shawboro to Norfolk to deliver lumber, and haul
logs from the woods to the mill, and hauled lumber from the
mill over here in Elizabeth City to load on the boat. That
mill would cut from 16,000 to 25,000 feet of lumber a day.
The batch of papers which you hand me are all the pay
envelopes which I received while working over there, and they
total $255.51. The amount of money that is designated on each
one of these pay envelopes is the amount that I received at
those different times. I did not receive any additional
compensation other than what was paid me in those pay
envelopes. The amount shown on the outside of the envelope
would be the amount that was in them. It would take me from
18 to 20 minutes to make my rounds just as watchman, and I
had to make the rounds every hour. The 18 or 20 minutes did
not include the time it would take me to fill up the boilers.
I made the rounds as watchman, made twelve times daily, and
that would be eleven hours. *** I was supposed to pump the
water in the boilers at eight o'clock and ten
o'clock, but I did it three or four times during the
night, because the boilers were so hot, and I had to pump
them up in order to keep water in them. The mill did not run
at night. I was not required to keep steam in the boilers, I
was just required to keep water in them. The pump I was
talking about was a steam force pump, and to start it I had
to turn a valve on the pump and a valve on the pipe line to
go into the boilers. I had to stay there and watch it. It
would
take the steam force pump from ten to fifteen minutes to put
water in the boiler. I would have to stay there about ten...
