Hitchcock v. Union & New Haven Trust Co.

• Decision Date: 17 December 1947
• Citation: 56 A.2d 655,134 Conn. 246
• Court: Connecticut Supreme Court
• Parties: HITCHCOCK v. UNION & NEW HAVEN TRUST CO. et al.

134 Conn. 246

56 A.2d 655

HITCHCOCK

v.UNION & NEW HAVEN TRUST CO. et al.

Supreme Court of Errors of Connecticut.

Dec. 17, 1947.

Appeal from Superior Court, New Haven County; Murphy, Judge.

Action by Raymond S. Hitchcock against the Union & New Haven Trust Company and others to recover unpaid overtime compensation allegedly due under the Fair Labor Standards Act. From a judgment for defendants entered upon plaintiff's failure to plead further after a demurrer to the complaint had been sustained, plaintiff appeals.

Error, judgment set aside and case remanded.

James F. Rosen, of New Haven, and Paul Kerins, of Ansonia, for appellant.

Frank E. Callahan and John E. Ecklund, Jr., both of New Haven, for appellees.

Charles M. Lyman, of New Haven, amicus curiae.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Justice.

This action comes before us by an appeal from a judgment rendered for the defendants upon the plaintiff's failure to plead over after a demurrer to the complaint was sustained. The writ is dated January 8, 1947. The complaint alleged that the plaintiff was employed by the defendants from October 1, 1939, to about June 1, 1942, under an oral agreement that he be paid $25 a week, and that he in fact worked eighty-four hours each week; and he claims to recover additional compensation for the time he worked over forty hours a week, under the provisions of the Fair Labor Standards Act of 1938. 52 Stat. 1060, §§ 7, 16, 29 U.S.C. §§ 207, 216, 29 U.S.C.A. §§ 207, 216. The demurrer was based on the claim that the plaintiff's cause of action is barred by the Statute of Limitations. Proof of dates other than those alleged in a complaint ordinarily constitutes an immaterial variance, and a demurrer may not be based on them; Bulkley v. Norwich & Westerly Ry. Co., 81 Conn. 284, 286, 70 A. 1021, 129 Am.St.Rep. 212; and a demurrer might deprive the plaintiff of an opportunity to plead matters in avoidance of the statute; O'Connor v. Waterbury, 69 Conn. 206, 210, 37 A. 499; but, when a demurrer raising the issue of the Statute of Limitations is filed and the plaintiff joins in that issue, it can properly be considered by the court. See Hall v. Hall, 91 Conn. 514, 518, 100 A. 441; Conn.App.Proc. § 22.

The Fair Labor Standards Act gives jurisdiction to state courts of competent jurisdiction to entertain actions to recover overtime compensation. § 216. It contains no limitation as to the time within which such actions must be brought, and when this action was instituted no other act of Congress provided any such limitations. It is not disputed before us that any applicable Statute of Limitations of this state will be controlling in this action. Campbell v. Haverhill, 155 U.S. 610, 613, 15 S.Ct. 217, 39 L.Ed. 280; Rawlings v. Ray, 312 U.S. 96, 97, 61 S.Ct. 473, 85 L.Ed. 605. The statute upon which the defendant relied and which was the basis of the trial court's decision is § 6010 of General Statutes. This provides that, with certain exceptions not now relevant, ‘no action founded upon any express contract or agreement’ which is not reduced to writing or of which some written note or memorandum in writing has not been made shall be brought but within three years next after the right of action accrued. The plaintiff, while disputing that any limitation of actions on contracts applies, suggests that if the action is one on contract it falls within § 6005, which provides that ‘No action for an account, or for a debt due by book to balance book accounts, or on any simple or implied contract, or upon any contract in writing not under seal, except promissory notes not negotiable, shall be brought but within six years next after the right of action shall accrue.’ As both of these sections apply only to actions on contract, we must first consider the question whether the cause of action stated in the complaint is one on a contract within the meaning of one or the other of these statutes or is one purely on a statute as to which there is no applicable Statute of Limitations.

The relevant portions of the Fair Labor Standards Act are § 207, which provides that no employer shall employ any of his employees for a work week longer than forty hours ‘unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed,’ and § 216, which provides that any employer who violates the requirements of § 207 ‘shall be liable to the employee or employees affected in the amount of their * * * unpaid overtime compensation * * * and in an additional equal amount as liquidated damages.’

The parties have cited no decision of the Supreme Court of the United States dealing with the question before us, and we have found none. That court has, however, in several decisions considered an analogous situation arising out of the statutory liability imposed upon stockholders in certain corporations to pay assessments in case of their insolvency. In Carrol v. Green, 92 U.S. 509, 23 L.Ed. 738, in a suit by creditors to recover under a South Carolina statute making stockholders individually liable for debts of the corporation to an extent not exceeding double the value of their respective shares, the court held that the action fell within a Statute of Limitations of that state applicable either to actions on the case, as for assumpsit, or to those for debt grounded upon a contract without specialty, stating (92 U.S. 509, at page 514, 23 L.Ed. 738): ‘The contract here was of the class last designated. The statute was only inducement. The implied promise of the stockholders to fulfil its requirements was the agreement on their part, and it was without specialty.’ In Flash v. Conn, 109 U.S. 371, 3 S.Ct. 263, 27 L.Ed. 966, the question was whether the obligation of stockholders to creditors under a similar statute of New York created a liability in contract enforceable in a foreign state or was one for a penalty, and the court held it was the former; and in the opinion it quoted with approval (109 U.S. 371, at page 377, 3 S.Ct. 263, 27 L.Ed. 966) Wiles v. Suydam, 64 N.Y. 173, in which it was stated that an action by a creditor to recover under the statute was in contract and the Statute of Limitations as to contracts applied. See Corning v. McCullough, 1 N.Y. 47, 52, 49 Am.Dec. 287. In Richmond v. Irons, 121 U.S. 27, 7 S.Ct. 788, 30 L.Ed. 864, the question arose under the federal act imposing an additional obligation upon stockholders in a national bank, and one of the issues was whether the liability survived the death of a stockholder, and the court, in holding that it did, said 121 U.S. at page 55, 7 S.Ct. at page 801, 30 L.Ed. 864: ‘Under that act the individual liability of the stockholders is an essential element in the contract by which the stockholders became members of the corporation.’ In Concord First National Bank v. Hawkins, 174 U.S. 364, 19 S.Ct. 739, 43 L.Ed. 1007, the nature of the liability of a stockholder in a national bank for an additional assessment was only incidentally involved, but the court said 174 U.S. at page 372, 19 S.Ct. at page 742, 43 L.Ed. 1007: ‘Undoubtedly the obligation is declared by the statute to attach to the ownership of the stock, and in that sense may be said to be statutory. But as the ownership of the stock, in most cases, arises from the voluntary act of the stockholder, he must be regarded as having agreed or contracted to be subject to the obligation.’

In Matteson v. Dent, 176 U.S. 521, 20 S.Ct. 419, 44 L.Ed. 571, the court, again speaking of the survivability of the liability of a stockholder of a national bank for an additional assessment, said 176 U.S. at page 525, 20 S.Ct. at page 421, 44 L.Ed. 571: ‘The obligation of a subscriber to stock to contribute to the amount of his subscription for the purpose of the payment of debts is contractual, and arises from the subscription to the stock.’ See Whitman v. Oxford National Bank, 176 U.S. 559, 563, 20 S.Ct. 477, 44 L.Ed. 587. In McDonald v. Thompson, 184 U.S. 71, 22 S.Ct. 297, 46 L.Ed. 437, the court held that an action by a receiver of a national bank to recover an assessment against the stockholders was not within a Statute of Limitations of the state of Nebraska applicable to contracts in writing; the court said 184 U.S. at page 74, 22 S.Ct. at page 298, 46 L.Ed. 437: ‘Whether the promise raised by the statute was an implied contract not in writing or a liability created by statute, it is immaterial to inquire. For the purposes of this case it may have been both. The statute was the origin of both * * * the right and the remedy, but the contract was the origin of the personal responsibility of the defendant.’ In McClaine v. Rankin, 197 U.S. 154, 25 S.Ct. 410, 49 L.Ed. 702, 3 Ann.Cas. 500, the court had before it the question of the Statute of Limitations applicable to an action by a receiver of a national bank to recover an additional assessment made by the comptroller of the currency; the issue was which Statute of Limitations applied, one limiting to six years actions on a contract not in writing or upon a statute for a penalty or forfeiture, or one limiting actions as to which no special provision was made to two years. The majority opinion of the court stated (197 U.S. 154, at page 162, 25 S.Ct. 410, 49 L.Ed. 702, 3 Ann.Cas. 500) that cases such as Carrol v. Green, 92 U.S. 509, 23 L.Ed. 738, and Metropolitan Railroad Co. v. District of Columbia, 132 U.S. 1, 10 S.Ct. 19, 33 L.Ed. 231, were not controlling because in them the right to recover was direct and immediate, not secondary and contingent as in the case before it, and held that, as the liability of a stockholder to the receiver was contingent upon an assessment made by the comptroller, the applicable statute was one governing actions ‘to enforce the statutory liability, and not an action for breach of contract,’ [197 U.S. 154, 25...