J.F. Schneider & Son, Inc. v. Justice
| Decision Date | 05 February 1943 |
| Citation | 168 S.W.2d 591,293 Ky. 126 |
| Parties | J. F. SCHNEIDER & SON, Inc., v. JUSTICE. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bell County; James S. Forrester, Judge.
Action by T. E. Justice against J. F. Schneider & Son, Inc., to recover an alleged balance due plaintiff for overtime performed by plaintiff as employee for defendant in violation of the Fair Labor Standards Act of 1938. From an adverse judgment, the defendant appeals.
Judgment reversed with directions to set aside judgment and to sustain defendant's demurrer to the petition.
Arthur Rhorer, of Middlesboro, and H. L. Bryant, of Pineville, for appellant.
Robert J. Watson, of Middlesboro, for appellee.
This is an action filed in the Bell Circuit Court by appellee and plaintiff below, T. E. Justice, against appellant and defendant below, J. F. Schneider & Son, Incorporated, whereby plaintiff sought to recover from defendant an alleged balance due him of $96.03 for overtime performed by plaintiff for defendant as its employee in its business of slaughtering animals for human food to be sold to retailers--all of which overtime service plaintiff alleged was in violation of the federal "Fair Labor Standards Act of 1938." If such violation of that act was true, and the service was performed within the purview of the word "commerce," as defined by that act, then under subsection (b) of section 16 thereof, 29 U.S.C.A. § 216(b), the employee may recover against his employer--in addition to compensation for excess service--double that amount as liquidated damages, and also a "reasonable attorney's fee to be paid by the defendant." The petition, therefore, sought judgment against defendant for his alleged overtime compensation, plus the same amount as liquidated damages, and also for a reasonable attorney's fee (which was alleged to be $100) totaling the amount of $292.06. Defendant demurred to the petition, which the court overruled, and upon its failure to plead further judgment was rendered against it for $242.06 the court fixing the attorney's fee at $50. Defendant filed the transcript in this court with a motion for appeal and plaintiff, resists its granting upon the ground, as contended by his counsel, that in measuring the amount involved to give this court appellate jurisdiction, neither the provided penalty as liquidated damages, nor the attorney's fee may be taken into account; and briefs for plaintiff discuss only that single jurisdictional question devoting no argument to the merits involving the sufficiency of the petition. Consequently we, in disposing of the case, will first dispose of that jurisdictional objection.
The argument of plaintiff's counsel that the provided liquidated damages of double the amount of alleged overtime service, plus the amount of a reasonable attorney's fee--both of which are provided for in the Federal Act--are neither to be considered in computing the jurisdictional amount for an appeal, is most nonconvincing, since both of such items of recovery by plaintiff are expressly provided for in the act, as much so as deficiency in compensation. They are all grouped by the act as component parts for which entire recovery may be had. Neither of those items is recoverable at all, unless compensation for overtime service is due under the act. When so, those two items compose the total amount for which recovery may be had the same as the amount of compensation sued for. Therefore, they may be considered as grafted in the overtime compensation sought to be recovered, and when done the total amount of all three items becomes integral parts of the aggregate sum sought to be recovered.
But, it is insisted that, even so as to the provided liquidated damages, it is not true as to the attorney's fee, since it, as argued, is but an item of cost of the action, and as such can not be considered in estimating the amount involved necessary to give this court jurisdiction of an appeal. As an original proposition--and without any reference to the Federal Act--we would still be disinclined to accept that argument. But the language of the act in providing for the recovery of a reasonable attorney's fee by plaintiff in such actions refutes that contention. It is: "The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." It will be observed that the language is not " as...
To continue reading
Request your trial
-
Rojas v. Kimble
...In a similar case it was specifically held that reasonable attorneys fees are not costs of an action. See J. F. Schneider & Son v. Justice, 293 Ky. 126, 168 S.W.2d 591. Our conclusions are that if the plaintiff sues on the defendants' promise to pay and claims an amount of $200 or more, exc......
-
Kentucky Transport Co. v. Drake
... ... Attention is called ... to J. F. Schneider & Son v. Justice, 293 Ky. 126, ... 168 S.W.2d 591, ... ...
-
Kentucky Transport Co. v. Drake
...under the provisions of sec. 216 of Title 29, U.S.C.A., since there is to be retrial. Attention is called to J.F. Schneider & Son v. Justice, 293 Ky. 126, 168, S.W. 2d 591, dealing with this question. Our conclusions require us to sustain appellant's motion for appeal, and to reverse the ju......
-
Roth v. Lake County Ready-Mix Co.
...nor is it averred that the plaintiff worked in excess of 40 hours in any one week. Counsel cite and rely upon Schneider & Son v. Justice, 293 Ky. 126, 168 S.W.2d 591. That case was decided by the Court of Appeals of Kentucky on February 5, 1943, ten years before the Supreme Court of the Uni......