Hunt v. National Linen Service Corp.

• Decision Date: 29 November 1941
• Citation: 157 S.W.2d 608,178 Tenn. 262
• Parties: HUNT v. NATIONAL LINEN SERVICE CORPORATION.
• Court: Tennessee Supreme Court

157 S.W.2d 608

178 Tenn. 262

HUNT v. NATIONAL LINEN SERVICE CORPORATION.

Supreme Court of Tennessee.

November 29, 1941

Appeal from Circuit Court, Knox County; Hamilton S. Burnett, Judge.

Action by John David Hunt against the National Linen Service Corporation to recover back wages under Fair Labor Standards Act. From a judgment sustaining certain grounds of a demurrer and overruling others, both parties appeal.

Judgment of dismissal affirmed.

W. O Lowe, of Knoxville, for plaintiff.

Ben R Winick and Joel H. Anderson, both of Knoxville, for defendant.

CHAMBLISS Justice.

This is an appeal from a judgment sustaining certain grounds of a demurrer and overruling others. Both parties have appealed.

The declaration (as amended) alleges violation of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., sometimes referred to as the Wage and Hour Law. It seeks recovery for the plaintiff in behalf of himself and as agent for and in behalf of John H. Jinks, and all other employees similarly situated. It describes the defendant's business as that of an establishment furnishing linen and laundry facilities to customers, some individual, but the majority being industrial or commercial business firms. It further alleges that "some" of said customers are located in Kentucky and Virginia.

The demurrer (as amended) is on several grounds, first, that the plaintiff has no authority or right to maintain the action on behalf of Jinks, since he fails to allege that he has any interest in the claim of Jinks, and "for the reason that the procedure in this court cannot be regulated by any act of Congress"; that the Fair Labor Standards Act is unconstitutional and void in so far as it purports to authorize the plaintiff to maintain an action for anyone other than himself, or any cause of action in which he has no personal interest; and that such procedure conflicts with the Tenth Amendment to the Constitution.

Other grounds of the demurrer are that plaintiff is without right to maintain this action on behalf of any other employees similarly situated; that he fails to specify in his declaration the amount due Jinks, the time Jinks worked for the defendant, or the compensation paid him; that the same failure to specify and allege exists with respect to the other employees similarly situated, for whom the suit was brought; that the declaration shows that the defendant's business is purely local and intra-state; that the declaration shows that neither the plaintiff, nor anyone else for whom he sues, was engaged in interstate commerce or the production of goods for interstate commerce; that the defendant's business is that of a service establishment which is specifically exempt from coverage by the Fair Labor Standards Act; that the declaration fails to set out specifically the facts and matters, including the hours of labor, rate of pay, etc., under and by virtue of which plaintiff claims he is entitled to sue for himself; and that the declaration shows on its face that the defendant's business is that of a retail establishment.

The circuit judge sustained the grounds of the demurrer which challenged the right of plaintiff to sue on behalf of Jinks and all other employees similarly situated, and overruled the other grounds. An appeal having been taken by both parties, however, the case is before us on the whole demurrer.

As to the right of the plaintiff to maintain an action, not only for himself, but in behalf of Jinks, as agent, and all other employees similarly situated, we are unable to agree with the trial Judge. The Fair Labor Standards Act provides:

"Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated." 29 U.S.C.A. § 216(b).

So far as we find, no court of last resort has passed upon the legality of this type of "class" action. However, there are opinions of numerous courts of first impression that are helpful. The great majority of these opinions sustain the maintenance of such a suit as a class action. See Townsend et al. v. Boston and Maine Railroad, D.C.Mass., 35 F.Supp. 938; Greenberg, etc., v. Bailey Lumber Co., Minn.Dist.Ct., 4 Wage and Hour Reporter, 79; Brooks et al. v. Southern Dairies, Inc., D.C.Fla., 38 F.Supp. 588; Volzing v. General Public Loan Corp., Sup., 32 N.Y.S.2d 31; Tolliver v. Cudahy Packing Co., D.C.Tenn., 39 F.Supp. 337; Shain v. Armour & Co., D.C. Ky., 40 F.Supp. 488.

It would appear from the plain language of the act that, as in a general creditors' bill, this action may be begun by and for one employee primarily, but may include within its scope a claim for all other employees similarly situated. This would not necessarily mean that these other employees were parties to the litigation. They are free to join in it or not, as they see fit. The purpose of Congress in providing this method of procedure is obviously to avoid, in so far as possible, a multiplicity of suits.

Accordingly, we are of the opinion that the first two grounds of demurrer should be overruled.

The third and fourth grounds of the demurrer, and also the eighth ground thereof, all go to the failure of the declaration to specify the amount due, the time worked, or the compensation paid by the defendant to the plaintiff and the other parties in interest. In other words, it is the insistence of the defendant that the plaintiff should make a more specific statement of his claim. There is little authority on this proposition so far as it relates merely to the Fair Labor Standards Act. The Supreme Court of New York, in Volzing v. General Public Loan Corp., 32 N.Y.S.2d 31, ruled that the claimant in this type of suit had to set out specifically the hours of overtime worked and the amount of underpayment involved.

The allegations in this declaration are extremely broad. We quote:

"Your plaintiff and those for whom he sues as agent, and other employees similarly situated, were employed by the defendant on a weekly basis for a space of time during the time elapsing between October 24, 1938, and the filing of this suit, the exact amount of which will be shown in the proof for each employee, and this plaintiff and those for whom he sues as agent, and each other employee similarly situated, worked more than forty-four hours per week for the year next ending October 24, 1939; more than forty-two hours per week for the year next ending October 24, 1940; and more than forty hours per week for the period beginning October 24, 1940, and continuing until the filing of this suit."

In view of the fact that this is a procedural question and is a matter of pleading that does not seem to have been covered by ...