Orange Crush Bottling Co. v. Tuggle

• Decision Date: 25 September 1943
• Docket Number: 30179.
• Citation: 27 S.E.2d 769,70 Ga.App. 144
• Parties: ORANGE CRUSH BOTTLING CO. v. TUGGLE.
• Court: Georgia Court of Appeals

27 S.E.2d 769

70 Ga.App. 144

ORANGE CRUSH BOTTLING CO. v. TUGGLE.

No. 30179.

Court of Appeals of Georgia, Division No. 2.

September 25, 1943

Rehearing Denied Nov. 20, 1943.

Syllabus by the Court.

Winfield P. Jones and F. L. Breen, both of Atlanta, for plaintiff in error.

Brandon Matthews, Smith, & Nall, of Atlanta, for defendant in error.

SUTTON Judge.

Plaintiff sued defendant to recover minimum wages, overtime compensation, improper deductions, liquidated damages, and attorney's fees, which he alleged were due under the provisions of the Federal Fair Labor Standards Act of 1938, 29 U.S. C.A. § 201 et seq. His petition alleged substantially as follows: (1) Defendant had its principal place of business in Fulton County, Georgia (2) that the contracts were made and the acts done in said county; (3) defendant was engaged in the manufacturing of soft drinks and the wholesale distributing of beer, soft drinks, and fruit juices in the City of Atlanta; (4) substantially all of the material and supplies used by defendant in the manufacturing of its soft drinks were obtained outside of the State of Georgia and transported in interstate commerce; (5) the beer and fruit juices sold by defendant were purchased in other states and transported by defendant into the State of Georgia and sold in the original packages; (6) beer and fruit juices were loaded from the trucks bringing them into the State of Georgia directly onto trucks delivering them to defendant's customers; (7, 8) defendant collected empty beer bottles and cases from its customers in Atlanta and vicinity and transported and sold the bottles outside of this State; (9) defendant owned and operated trucks which it regularly and customarily used to transport beer and fruit juices from other states into the State of Georgia and to carry the empty bottles and cases from this state to other states in interstate commerce; (10) defendant was engaged in interstate commerce and the production of goods for interstate commerce within the meaning of the Fair Labor Standards Act; (11) plaintiff was employed by defendant from June 7, 1940, through May 26, 1941; (12) plaintiff was employed to and did operate a route truck delivering beer, fruit juices and soft drinks to customers of defendant in Atlanta and surrounding territory, and (13) was employed to and did purchase and collect empty beer bottles and cases from defendant's customers and carry them to defendant's plant in Atlanta; (14) the empty beer bottles and cases were carried out of the State of Georgia and sold by defendant in other states; (15) beer and fruit juices were loaded directly from trucks bringing them from other states onto the truck operated by plaintiff, and (16) empty bottles and cases were loaded directly from the truck operated by plaintiff onto trucks carrying them from the State of Georgia to other states; (17) plaintiff assisted in unloading the trucks bringing beer and fruit juices from other states into this State in interstate commerce and in loading the same onto the truck operated by him; (18) plaintiff was required to work 72 hours each week; (19, 20, 21) from June 7, 1940, to July 5, 1940, his regular pay was $35 a week and overtime pay due him by defendant under the Fair Labor Standards Act amounted to $7.28 a week or $29.12 for the period; (22, 23) from July 5, 1940, to October 29, 1940, defendant was required by said act to pay plaintiff not less than $26.10 each week and from October 29, 1940, to May 26, 1941, was required by said act to pay plaintiff not less than $26.40 each week [[making a total which defendant was required to pay plaintiff under said act for this period $1,209.60 of which amount] the defendant paid him $1,035.00, leaving the sum of $174,60 due plaintiff by defendant for this period; (24, 25, 26) during said period plaintiff was required to pay a helper $5 a week out of his compensation which was not a proper deduction under the Fair Labor Standards Act, and defendant is indebted to plaintiff in the sum of $230 representing the amount paid the helper by plaintiff; (27) defendant is indebted to plaintiff in the sum of $433.72 for minimum wages, overtime compensation, and the amount paid said helper by plaintiff; (28) defendant has failed and refused to pay said sum or any part thereof; (29) defendant is indebted to plaintiff an additional equal amount as liquidated damages under the said Fair Labor Standards Act; (30) reasonable attorneys fees for bringing the action were $350.

The defendant filed general and special demurrers to the petition which were overruled by the judge and the exception here is to that judgment.

The defendant filed 13 grounds of special demurrer to the plaintiff's petition: (1) Paragraph 4 was demurred to upon the ground that the petition failed to disclose what was meant by "substantially all of the material and supplies;" (2) paragraph 5 was demurred to upon the ground that it did not appear whether the beer and fruit juices purchased by defendant were delivered to defendant at its plant nor how they were delivered; (3) paragraph 6 was demurred to upon the ground that it did not appear whether the beer and fruit juices were loaded from trucks bringing them into this state onto defendant's trucks for delivery to its customers at defendant's plant or at the railroad station nor whether defendant owned them at the time of the unloading and reloading; (4) paragraph 7 was demurred to upon the ground that it did not appear how the empty bottles and cases were transported out of the State of Georgia nor under what agreement they were transported; (5) paragraph 8 was demurred to upon the ground that it was not shown how, nor to whom the bottles were sold nor the terms and conditions of the sale; (6) paragraph 9 was demurred to upon the ground that it did not disclose how the defendant transported the empty bottles and cases from the State of Georgia through and into other states; (7) paragraph 10 was demurred to upon the ground that the allegations thereof were conclusions of the pleader with no facts alleged to support same; (8) paragraph 13 was demurred to upon the ground that it did not appear how plaintiff was employed to purchase, nor how he purchased, the empty beer bottles and cases and the terms of said purchase; (9) paragraph 15 was demurred to upon the ground that it did not appear how the beer and fruit juices in the original package were loaded from trucks bringing them from other states onto trucks operated by plaintiff; (10) paragraphs 16 and 17 were demurred to upon the ground that same were conclusions of the pleader with no facts alleged to support same; (11, 12, 13) paragraphs 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29 and 30 were demurred to upon the grounds that it did not appear that the Fair Labor Standards Act was applicable and that the allegations thereof were immaterial, irrelevant, and incompetent to bind defendant. "The requirement that a plaintiff shall 'plainly, fully, and distinctly' set forth his ground of complaint does not mean that he shall disclose the evidence upon which he relies, or indulge in needless particularity, but means only that his demand shall be set forth in terms sufficiently full and distinct to enable the court to determine whether a cause of action exists and his adversary to understand the exact nature of the claim made against him." Fuller v. Inman, 10 Ga.App. 680(3), 74 S.E. 287, 293. The petition of the plaintiff met the above requirements and the judge did not err in overruling the grounds of special demurrer.

The defendant filed 5 grounds of general demurrer to the petition and contended that the petition should be dismissed: (1) Because it appeared from the allegations thereof that the defendant was not engaged in interstate commerce within the meaning of the Fair Labor Standards Act of 1938; (2) because, even though the defendant might have been engaged in interstate commerce, it appeared that the plaintiff was not engaged in interstate commerce and did not come within the scope of the federal Fair Labor Standards Act; (3) because it appeared that the plaintiff was a truck driver engaged in a purely local or intrastate capacity and the federal Fair Labor Standards Act was inapplicable under the terms of said act; (4) because it appeared from the allegations of the petition that the plaintiff was engaged in a retail and service establishment; and (5) because the petition failed to set out a cause of action.

In ground 1 of the general demurrer, the defendant contended that the petition should have been dismissed because it appeared from the allegations of the petition that the defendant was not engaged in interstate commerce. The petition alleged that the defendant was a manufacturer of soft drinks and a wholesale distributor of soft drinks, beer and fruit juices in the City of Atlanta; that substantially all of the material and supplies used in the manufacturing of the soft drinks were obtained by the defendant from sources outside of the State of Georgia and transported in interstate commerce; that the beer and fruit juices distributed by the defendant were obtained by the defendant from sources outside of the State of Georgia and transported in interstate commerce; that the beer and fruit juices sold and distributed by the defendant were loaded onto the delivery trucks of the defendant from trucks bringing them into the State of Georgia from other states; that the defendant bought and collected empty beer bottles and cases from its customers in Atlanta and vicinity and transported the empty bottles out of the State of Georgia and sold them in other states; that the defendant owned and operated trucks which...