Niehaus v. Joseph Greenspon's Son Pipe Corp.

• Citation: 164 S.W.2d 180,237 Mo.App. 112
• Parties: William F. Niehaus and Carrie Niehaus, (Plaintiffs) Respondents, v. Joseph Greenspon's Son Pipe Corporation. (Defendant) Appellant
• Decision Date: 07 July 1942
• Court: Missouri Court of Appeals

164 S.W.2d 180

237 Mo.App. 112

William F. Niehaus and Carrie Niehaus, (Plaintiffs) Respondents, v. Joseph Greenspon's Son Pipe Corporation. (Defendant) Appellant

Court of Appeals of Missouri, St. Louis District

July 7, 1942

[Copyrighted Material Omitted]

Appeal from Circuit Court, City of St. Louis; Hon. Wm. L. Mason Judge.

Reversed and remanded.

Ben L. Shifrin, Herman Willer, and Taylor, Mayer, Shifrin & Willer for appellant.

(1) Shain v. Armour & Co. (1941), 40 F.Supp. 488; Townsend v. Boston & M. Railroad (1940), 35 F.Supp. 938; Saxton v. W. S. Askew Co. (1940), 35 F.Supp. 519; Hargrave v. Mid-Continent Petroleum Corp. (1941), 36 F.Supp. 233; Fair Labor Standards Act, Sec. 16-B; 47 C. J. 17, sec. 14; 12 C. J. 485. (2) Rogers v. Glazer et al. (1940), 32 F.Supp. 990; Hart v. Gregory (1941), 16 S.E.2d 837 (North Carolina); Staten v. Straus, 3 C. C. H. Labor Law Service, Para. 60761 (Kentucky, 1941). (3) Even though an employer may be engaged in interstate commerce, the test as to whether an employee is covered by the Act is the nature of the work of the particular employee. Beer Co. v. Redfern (Dec., 1941), 124 F.2d 172. (4) Plaintiffs have the burden of proving by substantial evidence that they not only come under the provisions of the Fair Labor Standards Act of 1938, but also the number of hours actually worked. W. H. Wilkinson et al. v. Noland Co., Inc., 40 F.Supp. 1009; Beer Co. v. Redfern, 124 F.2d 172; Lowrimoore v. Union Bag & Paper Co. (1939), 30 F.Supp. 647; Flores v. Baetjer (District Court of Porto Rico, 1941), 4 Labor Cases, Para. 60673; Willett v. Magnolia Petroleum Co. (1941), 4 Labor Cases, Para. 60348 (District Court of Northern Texas), Feb. 6, 1941; Roberts v. Hoarel, District Court of Northern District of Texas, Case No. 184, decided June 21, 1941; Cordell v. Wilcox Oil & Gas Co. (1941), 3 C. C. H. Labor Law, Para. 60807. (5) The attorney fees allowed in this case are unreasonable and excessive. St. John et al. v. Brown et al. (District Court of Texas, 1941), 38 F.Supp. 385; Lefevers v. General Export Iron & Metal Co. (District Court of Texas, 1940), 36 F.Supp. 838; Lewis et al. v. Nailing et al. (District Court of Tenn., 1940), 36 F.Supp. 187; S. H. Robinson & Co., Inc., v. Larue (Tenn. Supreme Court), 156 S.W.2d 432; Redfern v. Jax Beer Co. (1941), 4 Labor Cases, Para. 60402; Floyd v. The DuBois Soap Co. (Ohio, 1941), 3 Labor Cases, Para. 60318.

Hall & Dame and L. J. Brooks, Jr. for respondents.

(1) There is no misjoinder either of parties or of actions. The petition (which governs) states the relation, similarity of situation of employment, authority under Fair Labor Standards Act of 1938. Issue was joined by defendant. No disadvantage to the defendant is shown. Missouri sustains the procedure, R. S. Mo. 1939, sec. 851. Cases cited by defendant on this point do not favor their contention. Both Wm. Niehaus and his wife Carrie were largely employed in firing and tending the office furnace and in many other respects were similarly situated and employed, besides being jointly interested in the living quarters. Petition implies, conveys, whatever authority needed from one to the other. Shain v. Armour & Co., 40 F.Supp. 488. (2) Virtually all federal and administration authority declare that such workers as watchman and janitor or janitress come under the protection of Fair Labor Standards Act of 1938. Interpretative Bulletin No. 1 and other Interpretative Bulletins; U.S. v. Daily and U.S. v. Opp, 132 A. L. R. 1436, 85 L.Ed. 609-624; Woods v. Sand & Gravel Company, 33 F.Supp. 40; Fleming v. Pierson Hardwood Flooring Co., U. S.D. C., E. D. of Tenn., March 22, 1941; S. H. Robinson & Co. v. Larue (Tenn.), 156 S.W.2d 359; Fleming v. Kirschbaum, Apr. 8, 1941, 38 F.Supp. 204. Judge Kirkpatrick held that watchmen are covered by Fair Labor Standards Act. Appeal reported 124 F.2d 567; Jacobs v. W. R. Coppersmith, 2 Labor Cases, 18557, p. 585, D. C. U.S. E. D. of N. C.; Fleming v. Arsenal Bldg. Co., 125 F.2d 278, by Judge Hand, reversal of earlier case. (3) The case of Rogers v. Glaser, 32 F.Supp. 990, cited by defendant, has been criticized and distinction made by other federal authorities. Hart v. Gregory, 130 A. L. R. 265, 10 S.E.2d 644; Killingbrack v. Garment Center Cap., Inc., 259 A.D. 691, 20 N.Y.S. (2d) 521; Lefevers v. General Iron & Metal Co., 36 F.Supp. 838. (4) The case of Jax Beer Co. v. Redfern, 124 F.2d 172, is not an authority on any issue in this case. It was a question of interstate commerce. Here the defendant admits the defendant is engaged in interstate commerce. See Abstract, p. 60. (5) Plaintiffs have well sustained the burden of proving that they come under the Fair Labor Standards Act of 1938 and all other burdens cast upon them. See the petition and the Evidence, Abs. (6) The fee is moderate and reasonable and within the discretion of the trial court.

OPINION

Bennick, C.

This is an action under the Fair Labor Standards Act of 1938 (29 U.S.C. A., secs. 201-219).

The plaintiffs are William F. Niehaus and Carrie Niehaus, his wife, who sue as former employees of defendant, Joseph Greenspon's Son Pipe Corporation, to recover unpaid minimum wages and overtime compensation, liquidated damages, and a reasonable attorney's fee, all as provided by the act. Though the plaintiffs have joined in the action, each purports to assert his or her own individual right of recovery; and the case originates in the Circuit Court of the City of St. Louis as a court of competent jurisdiction in which an action to establish the employer's civil liability under the act may be maintained. [29 U.S.C. A., sec. 216.]

Defendant, whose chief office and principal place of business is in National City, Illinois, is a concern engaged in fabricating pipe of the type used in water lines and gas and oil wells. Some new pipe is sold, but for the most part the company's transactions involve old pipe, which is purchased outside and then resold and shipped out to various parts of the country after being cleaned and reconditioned. It was shown that some three-fourths of the company's products are shipped outside the State of Illinois; and indeed it was expressly admitted by defendant that it is engaged in interstate commerce and in the manufacture of goods for interstate commerce.

Plaintiff William F. Niehaus was employed as night watchman at defendant's plant, while his wife, Carrie Niehaus, the other plaintiff in the case, claims to have been employed as janitress or cleaning woman in and about the office.

The act provides that every employer shall pay to each of his employees "who is engaged in commerce or in the production of goods for commerce" a wage not less than 25 cents an hour during the first year from the effective date of the act (29 U.S.C. A., sec. 206), and that no employer shall, except as otherwise provided, employ any of his employees "who is engaged in commerce or in the production of goods for commerce" for a work week longer than 44 hours during the first year from the effective date of the act, unless such employee receives compensation for his employment in excess of 44 hours at a rate not less than one and one-half times the regular rate at which he is employed. [29 U.S.C. A., sec. 207.]

The term "commerce," as used in the act, is defined to mean "trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof." [29 U.S.C. A., sec. 203.] In the same section of definitions, it is further declared that for the purposes of the act "an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State."

The petition alleged that defendant and both plaintiffs were, at all times involved in the proceeding, engaged in commerce and in the production of goods for commerce within the application of the act.

The respective claims of the plaintiffs cover the period from October 24, 1938, when the act took effect, until July 28, 1939, all within the first year from the effective date of the act.

In brief, the claim of plaintiff William F. Niehaus is for the unpaid balance allegedly due him after deducting the compensation actually paid him for such period from the total amount he was entitled to receive at the statutory minimum wage of 25 cents an hour with time and a half for the hours employed in excess of 44 hours a week. The claim of Carrie Niehaus, on the other hand, is for the whole amount which she was allegedly entitled to receive for such period at the statutory minimum wage of 25 cents an hour with time and a half for the hours employed in excess of 44 hours a week, of which amount nothing has been paid.

The act provides (29 U.S.C. A., sec. 216) that in an action to enforce the employer's civil liability for violation of the act, the employee shall recover, not only the amount of his unpaid minimum wages and overtime compensation as the case may be, but also "an additional equal amount as liquidated damages." It is further provided that the court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant.

Availing themselves of such provisions, plaintiffs' prayer in the case at bar was that they recover the aggregate of the respective amounts of wages allegedly due them, with an additional equal amount as liquidated damages, and that they be allowed a reasonable attorney's fee, together with the costs of the action.

For its first pleading in the case, defendant demurred to the petition upon the ground,...