Johnson v. Dierks Lumber & Coal Co., No. 12224.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSTONE, SANBORN, and THOMAS, Circuit
PartiesJOHNSON et al. v. DIERKS LUMBER & COAL CO.
Docket NumberNo. 12224.
Decision Date23 July 1942

130 F.2d 115 (1942)

JOHNSON et al.
v.
DIERKS LUMBER & COAL CO.

No. 12224.

Circuit Court of Appeals, Eighth Circuit.

July 23, 1942.


130 F.2d 116
COPYRIGHT MATERIAL OMITTED
130 F.2d 117
Lee Cazort, Jr., of Little Rock, Ark. (Osro Cobb, of Little Rock, Ark., on the brief), for appellants

Chas. E. Whittaker, of Kansas City, Mo. (Scott Wood and E. H. Wootton, both of Hot Springs, Ark., and Henry N. Ess and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., on the brief), for appellee.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal by plaintiffs from a judgment entered on a verdict directed by the court upon its own motion. The suit was brought by Johnson, Gunter and Veazey, three employees of the defendant Dierks Lumber and Coal Company, to recover unpaid overtime compensation and liquidated damages under § 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1069, 29 U.S.C.A. § 216(b).

The defendant is a Delaware corporation engaged in owning timber land in the state of Arkansas and in the manufacture and production of lumber, a substantial part of which is sold and transported in interstate commerce. In the production of lumber the defendant operates a large number of trucks, tractors, bulldozers, road graders, and at some camps uses a large number of mules. The equipment is moved from place to place in the forest as convenience or necessity may require and is kept at varying distances from the central camp. The places where such equipment is kept and serviced are called "grease camps" or "corrals". Supplies of gasoline, oil, grease, tools, feed and accessories are kept at such camps. The employees using, operating, maintaining and caring for the equipment work in crews, each of which is under the direction and supervision of a foreman. Employees called "grease men" and "corral tenders" are in custody of the equipment at the grease camps and corrals where they live in trailers provided by the defendant. The other employees are transported daily from the central camp to the grease camps and corrals in trucks furnished by the defendant.

In July, 1940, the defendant employed the plaintiffs Johnson and Gunter as grease men. Their duty was to grease and service trucks and tractors and to keep watch seven days a week over all the equipment at the grease camps where they were respectively assigned to stay. The defendant pleads that it was agreed that their duties would require less than six hours per day but that they should be paid on the basis of six hours "whether that much be worked per day or not." Prior to October 24, 1940, their regular rate of pay was 35 cents an hour and thereafter 37 cents an hour. Veazey was employed October 28, 1938, as a corral tender at 33 cents an hour for seven days a week. He cared for mules and acted as watchman to prevent vandalism at the camp.

Johnson claimed compensation at one and one-half times his regular pay for 1,883 hours overtime from July, 1940, to January 12, 1941, in the sum of $1,013.19, and for an equal amount as liquidated damages. Gunter for practically the same period claimed 3,136 hours overtime, for which he asked compensation at one and one-half times his regular wages in the amount of $1,688.64, and for an equal sum as liquidated damages. Veazey claimed compensation for 2,475 hours overtime on the same basis in the amount of $1,212.75, and for liquidated damages. The plaintiffs asked for costs and attorney fees.

The defendant denied that plaintiffs worked any overtime.

In the course of the trial it appeared that on April 4, 1941, after the commencement of this suit, the defendant had paid Johnson $16.65 as compensation for admitted overtime work performed subsequent to October 24, 1940, and to Gunter for the same reason the sum of $22.20.

At the conclusion of plaintiffs' evidence the court on its own motion directed a verdict against Veazey, but in favor of Gunter for $22.20 and in favor of Johnson for $16.65. Judgment was entered accordingly. The judgments awarded Johnson and Gunter were for liquidated damages based upon the compensation for overtime work admitted and paid for by defendant on April 4, 1941. On the basis of this award counsel for plaintiffs were allowed an attorney fee in the sum of $100.

Since the defendant did not move for a directed verdict we must look to the ruling of the court for a statement of the grounds on which the verdicts were directed. The reasons assigned by the court may be summarized as follows:

1. The evidence as to the amount of overtime worked by each plaintiff was based upon conjecture and estimates without

130 F.2d 118
any knowledge upon their part as to the amount of overtime they actually worked

2. If the jury should return a verdict for the plaintiffs the duty of the court would be to set it aside because of the uncertainty of the testimony in support of the claims.

3. Plaintiff Johnson introduced in evidence a record of the overtime claimed to have been worked by him. In reference to this exhibit the court said, "An examination of the record will show that he claims to have worked as much as twenty hours a day, some days. Now, the court just doesn't believe that reasonable men do that without making some complaint at the time they are doing it."

4. On cross examination of Johnson and Gunter the defendant introduced in evidence weekly time statements beginning with the week ending December 7, 1940. These statements were prepared by Johnson and Gunter's foremen and signed by them. Above the signature of the employee was the printed statement, "I hereby state that I worked the number of hours shown hereon during the week ending ______." The statements did not show more than 40 hours worked in any one week. The court held that these time slips constituted a binding agreement between the parties, so that "under no circumstances would Johnson and Gunter be able to recover for any overtime since December 7, 1940."

In considering whether the court erred in directing a verdict for the defendant for any or all of the reasons assigned by it, this court must take that view of the evidence most favorable to the plaintiffs. The credibility of the witnesses and the weight of the evidence are matters for the jury and not for the court. Coen v. American Surety Co., 8 Cir., 120 F.2d 393, 397; Western & Atlantic R. R. v. Hughes, 278 U.S. 496, 498, 49 S.Ct. 231, 73 L.Ed. 473.

Contracts between employers and employees subject to the act and prohibited by or inconsistent with its provisions are illegal, and not binding upon the employees. Overnight Motor Transportation Co., Inc., v. Missel, 62 S.Ct. 1216, 86 L.Ed. ___; Fleming v....

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53 practice notes
  • Reeves v. International Tel. and Tel. Corp., No. 78-1286
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Mayo 1980
    ...L.Ed. 1515 (1946); Marshall v. Dallas Independent School District, 605 F.2d 191 (5th Cir. 1979); Johnson v. Dierks Lumber & Coal Co., 130 F.2d 115 (8th Cir. 1942). Inaccurate wage and hour information, however, is not always fatal to a claim for minimum wage or overtime compensation und......
  • Addison v. Huron Stevedoring Corp.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 14 Diciembre 1950
    ...is on each plaintiff to show that he has a claim and the correct amount thereof, Johnson v. Direrks Lumber & Coal Co., 8 Cir., 1942, 130 F.2d 115; Burke v. Mesta Mach. Co., D.C.1948, 79 F.Supp. 588; but a duty rests upon each defendant to have its records in such condition that a plaint......
  • Walling v. Peavy-Wilson Lumber Co., No. 213.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • 15 Abril 1943
    ...conclusion on the ground of any agreement between the employer and the employees. Johnson et al. v. Dierks Lumber & Coal Co., 8 Cir., 130 F.2d 115; Overnight Motor Transportation Co., Inc., v. Missel, 315 U.S. 791, 62 S.Ct. 641, 86 L.Ed. 1195; Fleming v. Warshawsky & Co., 7 Cir., 12......
  • Smith v. Superior Casing Crews, Civ. A. No. 68-259.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 16 Junio 1969
    ...89 L.Ed. 2007; F. W. Stock & Sons, Inc. v. Thompson, 6 Cir. 1952, 194 F.2d 493; Johnson v. Dierks Lumber & Coal Co., 8 Cir. 1942, 130 F.2d 115; Walling v. Lippold, D.C.Neb.1947, 72 F.Supp. * * * * The act requires the employer, not the employee, to keep accurate time and wage record......
  • Request a trial to view additional results
53 cases
  • Reeves v. International Tel. and Tel. Corp., No. 78-1286
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Mayo 1980
    ...L.Ed. 1515 (1946); Marshall v. Dallas Independent School District, 605 F.2d 191 (5th Cir. 1979); Johnson v. Dierks Lumber & Coal Co., 130 F.2d 115 (8th Cir. 1942). Inaccurate wage and hour information, however, is not always fatal to a claim for minimum wage or overtime compensation und......
  • Addison v. Huron Stevedoring Corp.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 14 Diciembre 1950
    ...is on each plaintiff to show that he has a claim and the correct amount thereof, Johnson v. Direrks Lumber & Coal Co., 8 Cir., 1942, 130 F.2d 115; Burke v. Mesta Mach. Co., D.C.1948, 79 F.Supp. 588; but a duty rests upon each defendant to have its records in such condition that a plaint......
  • Walling v. Peavy-Wilson Lumber Co., No. 213.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • 15 Abril 1943
    ...conclusion on the ground of any agreement between the employer and the employees. Johnson et al. v. Dierks Lumber & Coal Co., 8 Cir., 130 F.2d 115; Overnight Motor Transportation Co., Inc., v. Missel, 315 U.S. 791, 62 S.Ct. 641, 86 L.Ed. 1195; Fleming v. Warshawsky & Co., 7 Cir., 12......
  • Smith v. Superior Casing Crews, Civ. A. No. 68-259.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 16 Junio 1969
    ...89 L.Ed. 2007; F. W. Stock & Sons, Inc. v. Thompson, 6 Cir. 1952, 194 F.2d 493; Johnson v. Dierks Lumber & Coal Co., 8 Cir. 1942, 130 F.2d 115; Walling v. Lippold, D.C.Neb.1947, 72 F.Supp. * * * * The act requires the employer, not the employee, to keep accurate time and wage record......
  • Request a trial to view additional results

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