Prescott, Arkansas Tel. Corp. v. McFarland

• Court: Arkansas Supreme Court
• Writing for the Court: DUNAWAY
• Citation: Prescott, Arkansas Tel. Corp. v. McFarland, 233 S.W.2d 70, 217 Ark. 731 (Ark. 1950)
• Decision Date: 16 October 1950
• Docket Number: No. 4-9257,4-9257
• Parties: PRESCOTT, ARKANSAS TEL. CORP. v. McFARLAND.

Page 70

233 S.W.2d 70

217 Ark. 731

PRESCOTT, ARKANSAS TEL. CORP. v. McFARLAND.

No. 4-9257.

Supreme Court of Arkansas.

Oct. 16, 1950.

Bailey & Warren and Walls Trimble, Little Rock, for appellant.

W. J. Dungan, Augusta, Dennis W. Horton, Cotton Plant, for appellee.

DUNAWAY, Justice.

Appellee, Gladys McFarland, recovered judgment against appellant, Prescott, Arkansas Telephone Corporation, in the amount of $2,398.40, together with interest, costs and attorney's fees. Suit was brought under provisions of the 'Fair Labor Standards Act', 29 U.S.C.A. §§ 206, 207, seeking recovery of amounts allegedly due on account of unpaid minimum wages and overtime pay to which plaintiff claimed she was entitled.

Appellant denied that appellee was entitled to minimum wages and overtime pay as provided by the 'Fair Labor Standards Act', for the reason that plaintiff was a switchboard operator in a telephone exchange of less than 500 stations and her employment was thus exempted from application of the Act by 29 U.S.C.A. § 213(a)(11). The defendant company further denied that twenty per cent or a substantial part of plaintiff's working time was spent in performing administrative and clerical duties other than those of a telephone operator, as alleged by the plaintiff and which, if proved, would entitle her to the benefits of the Act, even if the telephone exchange in question was one of less than 500 stations.

After hearing oral testimony, the Chancellor found that the court had jurisdiction of the parties and the subject matter in the cause; and further found that the plaintiff worked a substantial part of her time in a clerical capacity in addition to performing the duties of a telephone operator. The court found that the defendant was indebted to the plaintiff for unpaid minimum wages and unpaid overtime compensation in the amount of $1,199.20, and for a like amount as liquidated damages.

On this appeal appellee has raised the question that the oral evidence heard by the Chancellor was not properly preserved, in that it was not approved and filed as a bill of exceptions within the time fixed by the court, and consequently cannot be considered as a part of the record.

The cause was heard on November 15, 1949 and judgment was rendered on that date. No formal decree was entered until January 9, 1950 when a decree nunc pro tunc was entered as of November 15, 1949. By the terms of that decree appellant was given 120 days in which to file a bill of exceptions. A new term of the Woodruff Chancery Court began on January 9, 1950.

As pointed out in the recent case of Johnson v. United States Gypsum Company, Ark., 229 S.W.2d 671, the practice in each Chancery district as to the preservation of oral testimony is governed by special statute. Act 269 of the Acts of 1949 is controlling as to the Fifth Chancery District, from which this appeal originates.

In the Johnson case, supra, we construed Act 269 of 1949 and held...