Michigan Window Cleaning Co. v. Martino

• Decision Date: 21 March 1949
• Docket Number: No. 10773.,10773.
• Citation: 173 F.2d 466
• Parties: MICHIGAN WINDOW CLEANING CO. v. MARTINO et al.
• Court: U.S. Court of Appeals — Sixth Circuit

173 F.2d 466 (1949)

MICHIGAN WINDOW CLEANING CO. v. MARTINO et al.

No. 10773.

United States Court of Appeals Sixth Circuit.

March 21, 1949.

L. S. Davidow, of Detroit, Mich. (Davidow & Davidow, of Detroit, Mich., on the brief), for appellant and cross-appellee.

Erwin Ellmann, of Detroit, Mich. (Leon A. Cousens, Ellmann & Rosin, and Erwin B. Ellmann, all of Detroit, Mich., on the brief), for appellees and cross-appellants.

Before SIMONS, McALLISTER, and MILLER, Circuit Judges.

SIMONS, Circuit Judge.

The appeal is from a judgment for the appellees for unpaid overtime compensation provided by the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., and attorney's fees. The appellant is a window cleaning company serving manufacturing industries in Detroit, Michigan, most of which are engaged in interstate commerce, and the appellees are window washers under contract with appellant.

The cause is before the court for the third time. Originally the complaint was dismissed upon the pleadings and stipulations of fact on the ground that the appellees were not within the coverage of the Act and that the appellant was exempt under § 13(a) (2) as a retail and service establishment, Martino v. Michigan Window Cleaning Co., D.C., 51 F.Supp. 505. We affirmed, 145 F.2d 163, finding it impossible to entertain the concept that window cleaning becomes interstate commerce or in pursuance of the production of goods for commerce by the mere fact that the windows that are cleaned are in the manufacturing establishments of industries engaged in interstate commerce. Certiorari was denied on February 26, 1945, 324 U.S. 849, 65 S.Ct. 685, 89 L.Ed. 1409. On June 18, 1945, the Supreme Court, without explanation, set aside its denial, 325 U.S. 849, 65 S.Ct. 1565, 89 L.Ed. 1970, granted certiorari and upon hearing reversed, 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603, remanding the cause to the district court for proceedings in accordance with its opinion.

The appellees had sought answers to interrogatories concerning hourly wage rates, hours worked, the premises upon which they were employed, the names and businesses of the customers, and the workweek under which the appellant operated with respect to each claimant. The court ordered the interrogatories answered and gave the appellant a month to comply. Answers made were held not responsive and additional time was granted. After other delays, default was entered against the appellant for failure to respond to interrogatories, the court pointing out that it had provided adequate opportunity to present required information as a basis for computation of the individual claims and that appellant had failed to furnish any records. A motion to set aside the default was denied. The court concluded that the appellant had made every attempt to frustrate and defeat its mandated purpose of determining the sums due the respective claimants; that appellant's course of conduct indicated that it was deliberately trying to confuse and impede progress; that its failure to make any attempt to give adequate and complete answers to the interrogatories left it with no alternative but to enter the order of default.

From such order the appellant sought review in this court but its appeal was dismissed, 6 Cir., 164 F.2d 93, because it was not from a final judgment or decree. Upon remand the district court took evidence from the claimants as to hours of work and rates of pay, declined to receive appellant's evidence or permit it to cross-examine witnesses, and finally, on November 26, 1947, entered judgment for the appellees in the sum of $3,417.02, with interest thereon from the date of the decision of the Supreme Court. It also denied appellees' prayer for liquidated damages and allowed their counsel $6,000 as reasonable attorney's fees for services in the cause, though $18,000 had been claimed.

From this judgment there is both an appeal and cross-appeal. The appellant's grievance is grounded upon the entry of its default, the failure of the court to set it aside, and a contention that the claims of the appellees are now barred by the amendment to the Fair Labor Standards Act of 1938 through the enactment of the so-called Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq. The cross-appeal complains of the failure of the court to grant the appellees liquidated damages and adequate attorney's fees.

We find no error in entering the order of default and in refusing to set it aside. Rule 33 of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides for interrogatories and is similar to former Equity Rule 58 which has now been incorporated into the rules in simplified form. It is to be accorded a broad and liberal treatment for "civil trials in the federal courts no longer need be carried on in the dark." Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 389, 91 L.Ed. 451. Rule 37 sets forth the consequences for refusal to make discovery, and they include an order refusing to allow the disobedient party to support his designated defenses or prohibiting him from introducing testimony. If the party declines to answer interrogatories he may be precluded by the court from offering proof at the trial. Fisher v. Underwriters at Lloyd's of London, 7 Cir., 115 F.2d 641. Much has been left to the discretion of the court, and in view of the appellant's dilatory and contumacious tactics we are not persuaded that the discretion was here abused. Upon failure of the appellant to disclose such information as it had, the court relied upon the fallible memories of the claimants, but it has been held that where damages lack exactness and precision of measurement, reliance may be had on the most accurate basis possible under the circumstances. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515. Even so, the court was zealous in confining the claims to actual work done by careful inquiry on the subject of vacations, illness and work for other employers.

In a controversy over the reasonable value of services by attorneys, much reliance must be placed by a reviewing court upon the findings of the trial judge. The lawyers here diligently represented their clients in repeated hearings in the district court and pressed their cause through two reviewing courts. At every stage of the proceedings they were harrassed by dilatory tactics. They finally obtained judgment. We think the amount allowed was not excessive and upon consideration of the evidence, we are not prepared to...