Martin v. Graham Ship-By-Truck Co.
| Decision Date | 06 December 1943 |
| Docket Number | 20353 |
| Citation | 176 S.W.2d 842 |
| Parties | Joe Martin, Respondent, v. Graham Ship-By-Truck Company, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Buchanan Circuit Court.
Affirmed; rehearing overruled.
Shain, P.J., not sitting.
Floyd L. Sperry
Defendant in its motion for rehearing urges that our opinion is not in harmony with decisions of the United State Courts on the question of the quantum and character of evidence required to sustain a claim for overtime and penalty under the "Wage and Hour Act." "We do not hold that less certain and definite proof of such issues is required when the case is tried in the courts of Missouri than is required when a similar case is tried in the United States Courts. We do hold, however, that when such issues are tried to the court, sitting as a jury, and there is substantial evidence on the question, the judgment of the court is no more nor less binding than is the verdict of a jury in a similar case. Such was the purport of our holding, in the main opinion, concerning proof of claims for overtime and penalties under the Act. Where there is substantial evidence on a given point, whether the case is tried in Federal Court without aid of a jury, or in State Court before a jury, the question is one to be decided on the weight and credibility of the evidence. A judge, hearing the case, might not believe the testimony of a given witness and, therefore, hold that the proof was not definite and certain. If a jury had heard the same case its verdict might likely have been to the same effect. But whether or not a judge or jury believed the testimony of a witness in one case has no bearing on the weight and credibility to be given the testimony of another witness in a different case. In the case at bar we think there was substantial evidence tending to prove plaintiff's case. The jury found for him and we are not at liberty to nullify its verdict.
The motion for rehearing should be overruled.
Boyer,C., concurs.
PER CURIAM: The foregoing opinion on motion for rehearing by Sperry, C., is adopted as the opinion of the court. The motion for rehearing is overruled. Bland, J., and Cave, J concur. Shain, P.J., not sitting.
This is a suit by an employee, against his employer, for a balance claimed to be due plaintiff under the Federal "Wage an Hour Act." The case was tried to a jury. From a verdict and judgment for plaintiff, defendant prosecutes this appeal.
Plaintiff pleaded that he was employed, and worked for defendant from January 17, 1942 until June 27, 1942, as a night watchman at defendant's place of business; that defendant during all of that time owned and operated certain trucks and truck lines, and that all of its facilities were at all times used and engaged in the interstate transportation of goods and that defendant was subject to the "Wage and Hour Act;" that plaintiff was entitled to be paid at the rate of thirty cents per hour for the first forty hours of each week worked and at the rate of forty-five cents per hour for all hours worked in excess of forty hours during each week; that the duties he was required to and did perform were those of a night watchman, to watch defendant's trucks, freight, and freight docks; that said freight was interstate freight and the trucks and docks were used to facilitate the movement of said freight; that he was entitled to be paid $ 34.95 per week for work done and was actually paid $ 10.50 per week. He prayed judgment for the sum of $ 562.35, balance due him for wages and overtime, for a like amount as liquidated damages, and for attorney fees in the sum Of $ 350, or a total of $ 1474.70.
To this petition defendant filed answer admitting its corporate existence and admitting that "at all times mentioned in plaintiff's petition it was engaged in interstate commerce, that its trucks and transportation facilities are used for the transportation of goods and interstate commerce; ***** that at all times mentioned in plaintiff's petition, it was subject to the Fair Labor Standards Act of 1938 as contained in 52 U.S. Statutes 1060," and denying all other allegations in plaintiff's petition contained.
Plaintiff testified to the effect that he was employed as alleged in his petition; that he worked for defendant from January 15, 1942, until June 27, 1942, seven days a week; that he regularly reported and began working at 5:30 p.m., and worked until 7:30 a.m.; that he worked ninety one hours per week during the time he was employed; that his duties consisted of watching the trucks in the yard to prevent thieves from molesting them, of watching the open dock, of opening and shutting the gates for trucks, of janitor work in the office, and also, towards the latter part of this time, of selling dry ice; that trucks would arrive at all hours of the night from 5:30 p.m., until 7:30 a.m.; that he was busy all night and had no time to sleep; that he kept no record of hours worked but depended on his recollection; and that he at no time, prior to his discharge, demanded to be paid anything more than $ 10.50 per week that he was actually paid, except that he asked for a raise in pay but that he did not know that he was entitled to anything by reason of the "Wages and Hour Act."
Mr. Pryor, a Witness for plaintiff, testified that during the time covered by plaintiff's employment he, the witness, was employed at a packing plant; that he frequently visited defendant's place of business at night to buy dry ice for use at his place of employment that upon said occasions he saw plaintiff and purchased dry ice from him; that such visits and purchases were made at various times during the hours of the night, from 6:30 p.m., until 6:30 a.m. that such trips were made almost every night.
Defendant's local manager, Stimble, testified to, the effect that plaintiff was employed during the times stated by plaintiff at a wage of thirty cents-per hour, a required by the "Wage and Hour Act;" that he was a watchman but also did janitor service; that he worked only from 7:00 p.m., until midnight each night, seven days per week, thirty-five hours; that he was paid $ 10.50 per week in full for his services; that plaintiff was provided with a cot at the office and was permitted to sleep there at his own request and for his own convenience, but was not required to do so; that plaintiff was not required to work after midnight; that there was nothing for him to do after midnight; and that, in fact, he did not work after midnight. He stated that the operating schedules of public carriers were changed; that out of town trucks ceased to use their facilities; whereupon, plaintiff was no longer needed to open and close the gates for trucks, and he was discharged. He stated that defendant removed its office from 5th and Patee, the location it occupied when plaintiff was first employed, to a location 7th and Olive, a short time prior to plaintiff's discharge, but that plaintiff's duties were the same at both place until the change of schedules rendered his employment no longer necessary.
Stimble identified a letter written by him to plaintiff's wife, after the business had been removed to the new location and shortly before plaintiff's discharge, wherein, it was stated that defendant did not need a watchman since it had moved to its new location because "we are now able to completely close and lock the dock and office *** over at the other place it was necessary to have a watchmen on account of the dock being open all night;" (Italics ours).
Defendant contends that the court erred in failing to instruct the jury that before they could find for plaintiff they must find that he was engaged in work connected with interstate commerce as construed under the "Wage and Hour Act." This contention is not well taken. Throughout the trial below both parties tried the case as though plaintiff was entitled to recover if he actually worked more than thirty five hours per week. Defendant specifically admitted, that it was engaged in the transportation of goods in interstate commerce, and that its facilities so used, at all times mentioned in plaintiff's petition. It tried its case wholly on the theory that it was obliged to comply with said Act, as to plaintiff's hours and wages, and that, had done so. Its contention was that plaintiff was paid the agreed sum of thirty cents per hour, the minimum wages required under the Act for five hours a day, for seven days a week; and that he was paid at said rate for every hour actually worked by him. Plaintiff contended that he was to receive the agreed sum of thirty cents per hour but that he worked ninety one hours per week instead of thirty-five hours. The entire dispute between the parties, as shown by the evidence of plaintiff and of Stimble, and as demonstrated by instructions submitted by both parties, was whether plaintiff began working at 5:30 p.m., and worked until 7:30 a.m., as he contended, or whether he began work at 7:30 p.m., and quit at 12:00 midnight, as defendant claimed. This was the sole issue between the parties and defendant's counsel so contended when evidence was being received before the court, touching the amount of the attorney fee to be allowed for plaintiff.
While this case is one arising out of a remedy created by Federal Statute, yet it must be tried in the courts of this state in accordance with our rules of practice and procedure. Niehaus v. Joseph Greenspon's Son Pipe Corporation, 164 S.W.2d, 180, l.c. 186, 237 Mo.App. 112. This court has held, Allen v. Purvis, 30 S.W. 2d 196, l.c. 200: "Where it appears at the trial that a given fact is not treated as a...
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