Plunkett v. Abraham Bros. Packing Co., 9132.
| Decision Date | 29 June 1942 |
| Docket Number | No. 9132.,9132. |
| Citation | 129 F.2d 419 |
| Parties | PLUNKETT v. ABRAHAM BROS. PACKING CO., Inc. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Anthony A. Aspero and John H. Franklin, both of Memphis, Tenn., for appellant.
Abe D. Waldauer, of Memphis, Tenn., for appellee.
Before HICKS, HAMILTON, and MARTIN, Circuit Judges.
The parties are herein referred to as they appeared of record in the District Court.
Complainant filed his complaint against defendant, and, so far as is material here, alleged therein: That he and defendant were resident citizens of Memphis, Shelby County, Tennessee, and of the Western District of Tennessee; that commencing with October 24, 1938, and continuing to October 15, 1940, complainant was an employee of defendant in the capacity of a driver and truck driver's helper, transporting and delivering meats, goods and commodities produced and manufactured by defendant, and making trips and delivery of same in Mississippi and to other points beyond the limits of Tennessee in interstate commerce; that while making these trips outside of Tennessee he was required to work as many as twenty-two hours per trip and was only paid at the rate of $2.75 for each trip; that during each work week throughout his entire time of employment he was required to make as many as three trips beyond the limits of Tennessee and never received wages in conformity with the requirements of minimum wages and maximum hours as set forth in the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.; that he had kept a record of his time and the amounts due him from January 21, 1939 to September 26, 1940, to wit, $909.35; that he was entitled to an additional amount which the records of defendant will disclose upon proper discovery; and that he therefore sues for the entire amount due and also for a reasonable attorney fee, as provided by the Fair Labor Standards Act of 1938.
Defendant filed a motion to dismiss upon the grounds, (1) that the complaint failed to state a cause of action; and (2) that complainant is precluded from the provisions of the Fair Labor Standards Act upon which his suit is based. The court sustained the motion; hence this appeal.
The court held that the employment of complainant was governed and controlled by the Motor Carriers Act of 1935 and not by the Fair Labor Standards Act of 1938. The case turns largely upon the effect to be given to Sec. 13(b) (1), 29 U.S.C.A. § 213 (b) (1), of the Fair Labor Standards Act. This section, so far as material, is as follows: "The provisions of section 207 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49."
Section 204(3) of the Motor Carriers Act, 49 U.S.C.A. § 304(3), empowers the Interstate Commerce Commission to "prescribe qualifications and maximum hours of service of employees" of private carriers such as the defendant. The complaint describes the complainant as an employee of defendant, a private carrier in interstate commerce. It follows that complainant is excluded from the benefits of Sec. 207 which deals with maximum hours and compensation for overtime, inasmuch as he was an employee whose functions affected the safety of operations. In so far as the district court so held, its ruling was correct. See Overnight Motor Transportation Co. v. Missel, 62 S.Ct. 1216, 86 L.Ed. ___, decided by the Supreme Court June 8,...
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