Raymond v. Parrish Et At

• Decision Date: 09 June 1944
• Docket Number: No. 30530.,30530.
• Parties: RAYMOND et al. v. PARRISH et at.
• Court: Georgia Court of Appeals

30 S.E.2d 669

RAYMOND et al.

v.PARRISH et at.

No. 30530.

Court of Appeals of Georgia,

Division No. 2.

June 9, 1944.

Syllabus by the Court.

The petition failed to allege facts sufficient to charge that the plaintiff employees of the defendants were engaged in commerce, or in the production of goods for commerce, so as to entitle them to regular and overtime wages, penalty and attorneys fees under the Fair Labor Standards Act, and the court erred in overruling the general demurrer to the petition.

Error from Superior Court, Coffee County; Walter Thomas, Judge.

Action by J. M. Parrish and others against Wesley Raymond and Robert Richardson, copartners, doing business under the firm name of Raymond-Richardson Aviation Company, under Wage and Hour Provisions of the Fair Labor Standards Act. To review a judgment on a directed verdict for plaintiffs after defendants' demurrers and motion for new trial were overruled, defendants bring error.

Reversed.

J. M. Parrish sued Robert Richardson and Wesley Raymond, copartners doing business under the firm name of Raymond-Richardson Aviation Company, for sums alleged to be due as regular and overtime wages, and for liquidated damages and attorney's fees under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The petition alleged substantially (all allegations not necessary in the consideration of the questions decided are omitted): "1. Said copartnership * * * is composed of two partners * * *, who, during the first part of the year 1942 acquired the assets and assumed the liabilities of Raymond, Brinckerhoff Aviation Company, a copartnership composed of Wesley Raymond and George Brinckerhoff. Each partnership was, and defendants now are, engaged in business in Coffee County, Georgia, operating, on a contract basis by the sale of service and other things for money, a training school for United States Army aviation cadets who come to defendants' school for training from different States of the United States of America, remain for short periods of time and while at said school are provided with quarters, mess, and training, and at the end of their training periods are transferred for further training to various sister States; while at defendants' school, said cadets are checked in and out of the grounds of the school by employees of the defendants known as guards, in which capacity plaintiff is employed and has been since the second of October, 1941; the duty of said guards, and of plaintiff, being to guard the personal property of said cadets, as well as all of the property on the premises of defendants' school. 2. Said guards, including plaintiff, as a part of their duties are, and have been at all times herein alleged required to guard aeroplanes at said school, on the premises of which school is a large field where aeroplanes take off and land. From hour to hour during day and night shifts of said guards, said guards take and walk their posts to protect aeroplanes, in hangars, on the field, in dispersal areas, or wherever they may be, whether they be aeroplanes stationed at the school for training, or other aeroplanes grounded for the day or night or any hours thereof on trips to and from the school and from and to other States or points within this State. Said other aeroplanes are constantly and frequently stopping at and taking off from the landing field of defendants' school, and while there are protected by the services of the guards as a part of their duties; and said guards are also required to, and do, guard all property used by defendants in the operation of said school, including the gasoline storage tank located on said premises, and also the railway tank cars that come onto the railway siding near the gasoline storage tank. Said gasoline storage tank is filled with gasoline shipped into this State, and onto said premises, by way of said railway tank cars, from other States, and the gasoline on said premises is not only used for refueling training aeroplanes stationed at said school, but also other aeroplanes from other States, as well as from other points in this State, which land on and take off from the landing field of said school and are serviced by the facilities there. Defendants also buy, in large wholesale quantities, food products which are shipped to defendants' place of business from points outside this State, are processed at said place of business by employees of defendants, prepared for human consumption, and served to said cadets and others at said school on a wholesale-contract basis; all of the food so served, after kitchen processing, being sold to one unit on the basis of the number of persons served; and said food products, and processing equipment, are a part of the property protected by said guards". The petition alleged that other employees were similarly situated. The defendants demurred to the petition generally and specially, the special demurrers being substantially: (1) To paragraph one and two on the ground that it was not alleged what plaintiff was required to do; (2) to paragraph two on the ground that plaintiff fails to allege what portion of his time each week was spent in performing each of the enumerated duties; (3) to paragraph blank and paragraph 9 on the ground that plaintiff could not sue at law for others similarly situated, and because the others are not named. The plaintiff amended by proceeding against a corporation instead of a partnership, alleging that each of the guards was engaged in commerce within the meaning of the Fair Labor Standards Act and named the other employees similarly situated. The original demurrer was renewed to the petition as amended, and further demurrers were interposed, among which were that there was a misjoinder of causes of action and the amounts due the additional parties were not alleged. The defendants' demurrerswere overruled and they excepted pendente lite. The court directed a verdict for the plaintiffs. The defendants here except to the overruling of their motion for a new trial and to the overruling of their demurrers.

Martin, Martin & Snow, of Macon, and M. L. Preston, of Douglas, for plaintiffs in error.

M. D. Dickerson and D. C. Sapp, both of Douglas, for defendants in error.

FELTON, Judge.

1. The Fair Labor Standards Act provides: "Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates. * * *" 29...