Rockwood v. The Crown Laundry Company, 38453.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Dalton
• Citation: 178 S.W.2d 440
• Parties: MARIE ROCKWOOD, ... for herself and all others similarly situated, Appellant, v. THE CROWN LAUNDRY COMPANY, Mexico, Missouri.
• Docket Number: No. 38453.,38453.
• Decision Date: 06 March 1944

178 S.W.2d 440 MARIE ROCKWOOD, ... for herself and all others similarly situated, Appellant,
v.
THE CROWN LAUNDRY COMPANY, Mexico, Missouri. No. 38453. Supreme Court of Missouri. Division One, March 6, 1944.

Appeal from Audrain County Court. — Hon. Frank Hollingsworth, Judge.

[178 S.W.2d 441]

AFFIRMED.

Roy Hamlin and H.M. Rust for appellants.

The court erred in sustaining defendant's demurrer on the ground that there was a misjoinder of parties plaintiff and causes of action. Fair Labor Standards Act of 1938, 29 U.S.C.A., Sections 201 to 218, inc.; Hunt v. Natl. Linen Supply Corp., 157 S.W. (2d) 608; Adair v. The Traco Division, 14 S.E. (2d) 466; State ex rel. St. Louis, Brownsville & Mexico Railway Co. v. Taylor, 266 U.S. 200; McNorrill v. Gibbs, 45 Fed. Supp. 363, 6 Labor Cases, 61,181; Greenberg v. Bailey Lbr. Co., Minn. D.C. St. Louis County, 4 Labor Cases 60,366.

Fry & Edwards for respondent.

The court properly sustained defendant's demurrer on the grounds that there is a misjoinder of parties plaintiff and a misjoinder of causes of action in the plaintiff's petition. Sec. 849, R.S. 1939; Niehaus v. Joseph Greenspon's Son Pipe Corp., 164 S.W. (2d) 180; Doerr-Engel Oil & Supply Co. v. Tide Water Oil Co., 119 S.W. (2d) 402.

DALTON, C.

Action by an alleged employee of defendant to recover for herself and all others similarly situated unpaid minimum wages and overtime compensation, and an additional equal amount as "liquidated damages," together with a reasonable attorney's fee, under the Fair Labor Standards Act of 1938 (29 U.S.C.A., Sec. 201 et seq.). Defendant demurred to the petition and the demurrer was sustained. Plaintiff refused to plead further and judgment was entered for defendant. Plaintiff has appealed.

[1] We are first confronted by a motion to dismiss the appeal. It is contended that no bill of exceptions was filed or "set forth in the abstract of the record" and that the abstract of the record "does not set forth any final judgment or affidavit of appeal." The appeal being upon the record proper, no bill of exceptions was required. See, Fenton v. Thompson, 352 Mo. 199, 176 S.W. (2d) 456, 461. The petition, demurrer and judgment were parts of the record proper. Mahaffey v. Lebanon Cemetery Ass'n., 253 Mo. 135, 139, 161 S.W. 701; Meissner v. Standard Railway Equipment Co., 211 Mo. 112, 121, 109 S.W. 730. Appellant's abstract of the record shows the petition and demurrer in full and recites that the trial court sustained defendant's demurrer to plaintiff's petition; that plaintiff declined to plead further; that, on January 11, 1943," the court entered final judgment in favor of defendant on the demurrer"; and that on the same day "plaintiff filed her affidavit for appeal in this case, which was in due and proper form, and said appeal was by the court granted to the Supreme Court of the State of Missouri." The narrative recital of the substance of the judgment and the fact that the affidavit had been filed and the appeal taken was sufficient. Alt v. Dines, 227 Mo. 418, 422, 126 S.W. 1035; Mahaffey v. Lebanon Cemetery Ass'n., supra; Campbell v. Boyers, 241 Mo. 421, 429, 145 S.W. 807. The motion to dismiss the appeal is overruled.

The Fair Labor Standards Act, 29 U.S.C.A., Sec. 216 (b), provides: "Any employer who violates the provisions of Section 206 or Section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."

Plaintiff's petition is in two counts and, in view of the issues presented, it will be unnecessary to review the facts alleged for the purpose of showing that defendant was subject to Fair Labor Standards Act. In count one, plaintiff sought recovery for alleged unpaid minimum wages in the sum of $1.76 claimed to be due her for work performed "during the week of September 13, 1942" and for unpaid minimum wages from October 24, 1938, to the date of filing the petition (August 25, 1942). The total sums claimed for herself in said count being $1000 for unpaid minimum wages, $1000 as liquidated damages, and $1000 as a reasonable attorney's fee. In the same count she further alleged that each of 105 named persons were employed under the same or...