De Rose v. Eastern Plastics
Citation | 134 F. Supp. 805 |
Decision Date | 03 August 1955 |
Docket Number | Civ. A. No. 10556. |
Parties | James DE ROSE, Plaintiff, v. EASTERN PLASTICS, Inc., a Corporation, Defendant. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Marvin D. Power, Margiotti & Casey, Pittsburgh, Pa., for plaintiff.
Maurice Louik, Harrison & Louik, Pittsburgh, Pa., for defendant.
This is a motion for new trial in an action brought for the recovery of overtime compensation under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. Plaintiff recovered a verdict and judgment in the amount of $3,000, which was substantially less than the amount claimed by plaintiff in his testimony. The jury found, contrary to defendant's contention, that plaintiff was not employed in a bona fide executive capacity.
As to the alleged overtime worked, the plaintiff's evidence was that his hours invariably ran from 8:00 A.M. to 6, 7 or 8:00 o'clock in the evening, and that he worked on occasions from 24 to 28 hours at a stretch. He testified that in the first year and a half of his employment, he had never had more than three hours sleep at a stretch. He offered in evidence, and the court admitted, under objection by the defendant, a statement (plaintiff's exhibit 5) which was a calculation of the overtime hours claimed to have been worked by plaintiff. These figures had been arrived at, according to the plaintiff's testimony, by an average number of hours worked that he had estimated that he had worked during each month. This calculation, according to the plaintiff, was prepared late in 1954 after the pre-trial of the case, and was an estimate of the hours worked from February, 1950, to April, 1952. During the course of the trial, the memorandum was reduced to a weekly basis from the averages of the monthly basis, and it was this latter memorandum which the plaintiff introduced in evidence and which memorandum the court permitted the jury to have.
At the argument upon the motion, defendant rested his argument upon the alleged error of admitting into evidence the statement of the alleged number of overtime hours worked prepared by plaintiff.
The sole question thus raised is the admissibility of plaintiff's statement. It may be noted, however, that other evidence was adduced in support of plaintiff's case and that the question of plaintiff's credibility was for the jury. Many of the nonjury decisions cited by defendant, which necessarily turned to a great extent upon considerations of the sufficiency and credibility of the evidence by the judges as triers of the facts, are not applicable here. See Mornford v. Andrews, 5 Cir., 1945; 151 F.2d 511, 512; Eakins v. Alvarada Broadcasting Co., D.C.D.N.M.1954, 125 F.Supp. 87; Ciemnoczolowski v. Q. O. Ordnance Corp., D.C.Neb.1954, 119 F.Supp. 793, 801; Miceli v. Kleinberger, D.C.E.D.N.Y.1951, 97 F.Supp. 518; Davies v. Onyx Oils & Resins, Inc., D.C.D.N.J.1946, 63 F.Supp. 777; Collins v. Burton-Dixie Corp., D.C. W.D.S.C.1944, 53 F.Supp. 821; Spier v. Gulf Coast Beverages, Inc., D.C.S.D.Fla. 1943, 50 F.Supp. 653.
The admission of plaintiff's statement should be considered, as the jury was bound to consider it, in the light of the court's instructions to the jury:
Defendant's position is that plaintiff's statement was too uncertain and conjectural as a matter of law to be admissible in evidence and should not have gone to the jury.
At the trial, defendant did not deny that plaintiff had worked in excess of forty hours per week. The dispute between the parties was not as to the existence of hours worked in excess of forty, but as to the number of such hours. Defendant introduced no records of the number of hours worked by plaintiff. Under the Fair Labor Standards Act of 1938, 52 Stat. 1066, § 11, as amended, 29 U.S.C.A. § 211, and regulations promulgated thereunder, it was defendant's duty to make and preserve such records.
In these circumstances it is apparent that either recovery must be allowed upon evidence which is based upon estimation and recollection, or recovery must be denied. Which alternative must be chosen is clear from the opinion of the Court in Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 686-88, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515:
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