Kentucky Transport Co. v. Drake

• Decision Date: 17 October 1944
• Citation: 298 Ky. 389,182 S.W.2d 960
• Parties: KENTUCKY TRANSPORT CO. v. DRAKE.
• Court: Kentucky Court of Appeals

182 S.W.2d 960

298 Ky. 389

KENTUCKY TRANSPORT CO. v. DRAKE.

Court of Appeals of Kentucky

October 17, 1944

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division; Joseph J. Hancock, Judge.

Action by Edgar C. Drake against Kentucky Transport Company to recover overtime wages under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Verdict and judgment for plaintiff and defendant appeals, and plaintiff was granted cross appeal.

Reversed on defendant's appeal and remanded, with directions to grant defendant a new trial.

Allen McElwain, Dinning & Clarke and B. C. VanArsdale, all of Louisville, for appellant.

Jones Keith & Jones and Guy C. Shearer, all of Louisville, for appellee.

MORRIS Commissioner.

Appellant defendant below, was during the times involved a corporation operating out of Louisville; a carrier engaging in commercial and freight transportation by means of trucks, both in and out of the state.

Appellee alleged that the business engaged in brought its operations under the terms of the Fair Labor and Standards Act of Congress, embodied in 29 U.S.C.A. § 201 et seq. He based his right to recover under the act for alleged overtime labor. He was employed by appellant continuously from September 1, 1938, to June 30, 1940, in 'such services as fender and body repairing on transport trucks, tractors and trailers, and some work as metal finisher and welder on the transport trucks used in transporting goods on an interstate and intrastate basis.' More particularly describing his duties and services, he alleged that his work consisted of repairing fender and body dents, breaks and other damages to the tractor, trailer and truck bodies, used in inter and intra state transportation, selling and buying. His claim was that from September 1, 1938, to June 30, 1940, he was employed for 998 1/2 hours overtime, and he sets out overtime engagement by monthly periods at the prevailing wage rate. He alleges demand and sues for a total of $774.38, the sum allowable under his union contract; a like sum in liquidated damages and reasonable attorney's fee. Appellant later amended his petition alleging that the transportation was all interstate.

Appellant moved the court to require plaintiff to elect and to make his petition more definite by stating with particularity the facts in respect of (1) engagement in interstate commerce by plaintiff or defendant, and (2) the number of hours, both regular and overtime, during which plaintiff worked on trucks both in intra and inter state transportation. These motions were overruled, as was general demurrer. An answer denied generally all allegations of the petition save that appellant was a corporation authorized to carry on the business of common carrier; a freight and commercial transporter. Upon trial the jury awarded plaintiff $305.11, plus $50 attorney fee. The court did not give a tendered instruction on liquidated damages, and following the verdict plaintiff moved for judgment non obstante; the court overruled the motion. Appeal is from judgment entered in conformity with verdict; appellee has been granted cross appeal.

It is the contention of appellant that the court should have sustained its motions for directed verdict, on the ground that the proof showed that Drake's work was such as 'affected the safety of operation' of the motor vehicles and hence the provisions of the Fair Labor Act did not apply. That since there was no dispute in the evidence as to the nature of the work, the court should have decided as a matter of law that appellee was not covered by the act and should have dismissed the petition. Again, that appellee had failed to allege or prove that both he and employer were engaged in interstate commerce; that where it appears that both parties are thus engaged the burden is on the employee to show the proportions of time, or overtime consumed in each class, and having failed the petition should have been dismissed.

The determination of the question presented turns altogether on the proof and the application of Federal laws, rules and regulations relating to laborers and wages. The Fair Labor Standards Act, by paragraph a of § 207, fixes the schedule of rates which the employer engaged in commerce or the production of goods for commerce shall pay. Paragraph b fixes the number of hours an employee thus engaged may be employed and compensation for labor in excess of the fixed week hours.

The controversy here turns on the application of the facts to subsection (b) of § 213, under the heading 'Exemptions,' which provides: 'The provisions of section 207 of this title shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49 U.S.C.A.' This section, 49 U.S.C.A. § 304, places on the Commission the duty (2) to regulate contract carriers by moter vehicles, and empowers it to establish reasonable rules and requirements with respect to uniform system of accounts, records, etc., and 'qualifications and maximum hours of service of employees, and safety of operation and equipment,' also 'reasonable requirements to promote safety of operation, and to that end prescribe qualifications and maximum hours of service of employees.'

Shortly after the enactment of the Motor Transportation Act the Interstate Commerce Commission on its own motion fixed maximum hours of employees whose functions make such regulations desirable because of safety conditions. Ex Parte No. M.C.C. 23, M.C.C. 635-667; United States v. American Trucking Association, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345. The exemption applies to employees whose maximum hours may be controlled by the Interstate Commerce Commission, without regard to whether or not the Commission had acted, the exemption being based on the power of the Commission to regulate. Overnight Motor Transportation Co. v. Missell, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682; Southland Gasoline Co. v. Bayley, 319 U.S. 44, 63 S.Ct. 917, 87 L.Ed. 1244.

Appellee admits in brief that there was no contrariety in the evidence, but insists that it presented a question as to whether or not the work of the employee did or did not affect the safety of operation of appellant's vehicles. Appellant, while agreeing that such is the sole question, contends that the proof, rather than supporting the claim that Drake's work did not affect the safety of operation, showed that it was such, as the act has been construed, as to bring it within the exempting feature of the act. The proof is clear that appellee was engaged in the sole business of transporting goods, in the delivery of commodities under contract with one of the larger chain store concerns, operating about 75 power units and nearly as many semi-trailers. The majority of these were used in Kentucky deliveries, some operated across state lines in Indiana, Illinois and Tennessee. In connection with its business it operated a repair shop adjacent to its main office, where its fleet was serviced and repaired by its employees.

Drake was employed as a mechanic, his application so showed, and his and other proof show him to have been such, and all his work was in repair and readjustment work. He said that his work was chiefly fender and body work on tractors and trucks, which included welding. He was asked on direct examination as to whether or not the work he did affected the 'safe operation' of the vehicles. He said 'some of them they could and some they could not.' His idea was that work on trucks which were 'still rolling' was not for safety of operation. Some of the work he thought was rebuilding. On cross-examination he stated he worked on lights, mostly repairing broken ones and putting them in place, sometimes replacing new ones. He worked on fifth wheels, which bear the front end of the trailer, and had 'something to do with the safety of operation.' He worked on battery boxes, which was for safety in operation; worked on radiators, mostly taking them off for repairs and replacing them; on bolster plates and fish plates to repair frames, generators and brackets 'when they broke in two.' He also had the job of inspecting fenders, bodies and air lines, which had to do with brakes. He worked on axles after the truck had been in trouble, on flare brackets, frames and springs, and rear view mirror frames. He was under the impression that 'body work' was not connected with safety of operation because you could 'sit on a box and drive a tractor.'

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