Porter v. Poindexter
| Decision Date | 03 March 1947 |
| Docket Number | No. 3361,3368.,3361 |
| Citation | 158 F.2d 759 |
| Parties | PORTER v. POINDEXTER. POINDEXTER v. PORTER. |
| Court | U.S. Court of Appeals — Tenth Circuit |
R. M. Mountcastle, of Muskagee, Okl., for appellant and cross-appellee.
Jno. W. Porter, Jr., of Muskogee, Okl. (John W. Porter, of Muskogee, Okl., on the brief), for appellee and cross-appellant.
Before PHILLIPS and MURRAH, Circuit Judges, and CHANDLER, District Judge.
J. L. Poindexter brought this action against his employer, Ralph W. Porter, Trustee, to recover overtime compensation, liquidated damages and attorney's fees, under the provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq.
He alleged that both parties were residents of Muskogee County, Oklahoma; that defendant was engaged in the business of transporting freight for hire in interstate commerce; that he was employed as a freight checker and collector of defendant's local accounts; that in the performance of said duties he worked 68½ hours as a freight checker and 7 hours as bill collector during each week from December 14, 1941, to and including that portion of the calendar week ending December 30, 1943, except the weeks of June 6th and 13th, 1943, at the regular hourly rate of pay of 55 cents per hour, for which services defendant paid him for each of said weeks the sum of $29.70 and that there is a balance due him for overtime compensation of $3,059.92; that he worked the same number of hours per week in the same capacities from January 2, 1944, to June 30, 1944, except the weeks of May 7th and 14th, 1944, at the regular hourly rate of pay of 60 cents per hour and was paid therefor $32.40 per week and that there is a balance due him for overtime compensation of $795.60.
The defendant answered, denying the jurisdiction of the court upon the ground that the parties were not residents and citizens of different states and because the employee bringing the action was disclosed by the petition to be within the exemption specifically provided by law in both the Motor Carrier Act, 49 U.S.C.A. § 304, and the Fair Labor Standards Act. Defendant also expressly denied that the plaintiff worked the number of hours per week alleged in the complaint, and alleged that the plaintiff was engaged in loading or supervising the loading of trucks, and that it was his job to see that they were safely and properly loaded.
When the case was called for trial plaintiff offered evidence as to the character of the duties which he performed and the number of hours worked. At the conclusion of the evidence the defendant moved for dismissal for two reasons: (1) that the court had no jurisdiction, and (2) that the estimate of the time worked was based upon speculation, guess and conjecture.
The motion to dismiss was overruled and the defendant offered no evidence. The court found from the evidence and the undenied allegations of the complaint that the parties were both residents of Muskogee County, Oklahoma; that defendant was engaged in the business of transporting freight in interstate commerce; that the plaintiff was defendant's employee and worked 104 5/7 weeks from December 14, 1941, to December 30, 1943, and 23 6/7 weeks from January 2, 1944, to June 30, 1944; that each of said weeks he worked 7 hours collecting accounts and 68½ hours checking freight, making a total of 75½ hours per week; that he was paid $29.70 per week for 104 5/7 weeks and $32.40 per week for 23 6/7 weeks; that he was a checker of freight, and that no substantial part of his activities related directly to the safety of operation of motor vehicles. Although the alleged hourly rate of pay was undenied by the pleadings, the court found from the evidence that the contract rate of pay was $29.70 and $32.40 per week.
The court concluded as a matter of law that the court had jurisdiction; that the plaintiff was not exempt from the provisions of the Fair Labor Standards Act, and that the hourly rate of pay must be determined by dividing the weekly wage by the total number of hours worked, resulting in an hourly rate of 39½ cents for 104 5/7 weeks and 43 cents for 23 6/7 weeks. The unpaid overtime compensation was computed to be $913.65 and judgment was entered for $913.65 overtime compensation, $913.65 unliquidated damages and $250.00 attorney's fees.
The matter comes before this court on the appeal of the...
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