Mornford v. Andrews, No. 11240.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtSIBLEY, HUTCHESON, and LEE, Circuit
Citation151 F.2d 511
PartiesMORNFORD v. ANDREWS.
Decision Date24 October 1945
Docket NumberNo. 11240.

151 F.2d 511 (1945)

MORNFORD
v.
ANDREWS.

No. 11240.

Circuit Court of Appeals, Fifth Circuit.

October 24, 1945.


James Maddox, of Rome, Ga., for appellant.

Dean Owens, of Rome, Ga., for appellee.

Before SIBLEY, HUTCHESON, and LEE, Circuit Judges.

HUTCHESON, Circuit Judge.

From an adverse judgment in a suit to recover minimum wages and overtime compensation, with liquidated damages and attorneys' fees, alleged to be due and owing under the Fair Labor Standards Act of 1938,1 plaintiff appeals.

The claim was: that he had been employed by appellee from October, 1939, to March, 1941, as a porter at the bus station and terminal at Rome, Georgia, to keep the station clean, meet all buses, assist passengers with, and check, baggage, and perform any other duties incidental to these;

that he worked an average of eighty-four hours each week, at a wage of $6 per week for the first nine months, and thereafter at a weekly wage of $7

The District Judge correctly found that the operation of the bus station was a necessary and essential part of transportation in interstate commerce, and that the parties were subject to the Act.

As to regular time, he found that the agreement under which appellant was employed by appellee was that he was to receive a total of $25 per week, an amount in excess of the minimum wage. This was to be made up in part of tips he received from passengers, and if the tips plus the amount of cash wages paid him did not equal $25.00, he would be paid the difference on demand. He found, too, that due to the indefiniteness of plaintiff's testimony it was impossible to determine what amount of tips plaintiff had received, and, therefore, whether or not with the amount of cash paid him, sometimes $6, sometimes $7, and sometimes $9 per week, he was in fact underpaid. He concluded, therefore, that plaintiff had failed to make out a case for recovery.

As to overtime, the District Judge, on evidence fully sustaining his finding, found that while plaintiff's testimony was sufficient to show in a general way that he did in each week of his employment put in enough hours to constitute a regular work week, he did not show with any definiteness the actual number of hours worked, and there was, therefore, no basis for a finding as to overtime worked.

An employee may be paid a fixed amount each week, provided it is an amount sufficient to cover the minimum wages provided by Section 6 of the Act, on a basis of maximum hours allowed...

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12 practice notes
  • Jackson v. Airways Parking Company, Civ. A. No. 11413.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 7, 1969
    ...for various firms in interstate commerce, Telephone Answering Service, supra; a porter at a bus station and terminal, Mornford v. Andrews, 151 F.2d 511 (5th Cir., 1945), but see Skidmore v. John J. Casale, Inc., 160 F.2d 527 (2d Cir., 1947), cert. denied, 331 U.S. 812, 67 S.Ct. 1205, 91 L.E......
  • Mitchell v. Adams, No. 15659.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 7, 1956
    ...week did work in excess of 60 hours. 5 The suit was, of course, by the Secretary seeking affirmative relief, Mornford v. Andrews, 5 Cir., 151 F.2d 511; Super-Cold Southwest Co. v. McBride, 5 Cir., 124 F.2d 90; Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172; Walling v. Northwestern-Hanna Fuel......
  • Parks v. Puckett
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • September 27, 1957
    ...to permit a finding without resort to conjecture that he worked a definite number of overtime hours. Mornford v. Andrews, 5 Cir., 151 F.2d 511; Lawley & Son Corporation v. South, 1 Cir., 154 F. Supp. 851 140 F.2d 439, certiorari denied 322 U.S. 746, 64 S.Ct. 1156, 88 L.Ed. 1578; Johnson......
  • De Rose v. Eastern Plastics, Civ. A. No. 10556.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • August 3, 1955
    ...and credibility of the evidence by the judges as triers of the facts, are not applicable here. See Mornford v. Andrews, 5 Cir., 1945; 151 F.2d 511, 512; 134 F. Supp. 807 Eakins v. Alvarada Broadcasting Co., D.C.D.N.M.1954, 125 F.Supp. 87; Ciemnoczolowski v. Q. O. Ordnance Corp., D.C.Neb.195......
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12 cases
  • Jackson v. Airways Parking Company, Civ. A. No. 11413.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 7, 1969
    ...for various firms in interstate commerce, Telephone Answering Service, supra; a porter at a bus station and terminal, Mornford v. Andrews, 151 F.2d 511 (5th Cir., 1945), but see Skidmore v. John J. Casale, Inc., 160 F.2d 527 (2d Cir., 1947), cert. denied, 331 U.S. 812, 67 S.Ct. 1205, 91 L.E......
  • Mitchell v. Adams, No. 15659.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 7, 1956
    ...week did work in excess of 60 hours. 5 The suit was, of course, by the Secretary seeking affirmative relief, Mornford v. Andrews, 5 Cir., 151 F.2d 511; Super-Cold Southwest Co. v. McBride, 5 Cir., 124 F.2d 90; Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172; Walling v. Northwestern-Hanna Fuel......
  • Parks v. Puckett
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • September 27, 1957
    ...to permit a finding without resort to conjecture that he worked a definite number of overtime hours. Mornford v. Andrews, 5 Cir., 151 F.2d 511; Lawley & Son Corporation v. South, 1 Cir., 154 F. Supp. 851 140 F.2d 439, certiorari denied 322 U.S. 746, 64 S.Ct. 1156, 88 L.Ed. 1578; Johnson......
  • De Rose v. Eastern Plastics, Civ. A. No. 10556.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • August 3, 1955
    ...and credibility of the evidence by the judges as triers of the facts, are not applicable here. See Mornford v. Andrews, 5 Cir., 1945; 151 F.2d 511, 512; 134 F. Supp. 807 Eakins v. Alvarada Broadcasting Co., D.C.D.N.M.1954, 125 F.Supp. 87; Ciemnoczolowski v. Q. O. Ordnance Corp., D.C.Neb.195......
  • Request a trial to view additional results

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