Southern Package Corp. v. Walton

• Decision Date: 15 February 1943
• Docket Number: 35152.
• Citation: 194 Miss. 573,11 So.2d 912
• Court: Mississippi Supreme Court
• Parties: SOUTHERN PACKAGE CORPORATION v. WALTON.

11 So.2d 912

194 Miss. 573

SOUTHERN PACKAGE CORPORATION v. WALTON.

No. 35152.

Supreme Court of Mississippi

February 15, 1943

Henley Jones & Woodliff, of Hazlehurst, and Drake & Drake of Port Gibson, for appellant.

Berger & Gholson, of Port Gibson, for appellee.

McGEHEE Justice.

This appeal presents for decision the following questions:

1. Whether a night watchman employed by a manufacturer of lumber and veneer products, a substantial portion of which are shipped out of the State of Mississippi, is engaged in producing goods for interstate commerce or in an occupation necessary to the production of goods for interstate commerce so as to be entitled to the benefits of the federal "Fair Labor Standards Act of 1938," 52 Stat. at L 1060, Title 29 U.S.C.A. §§ 203 (j), 206, 207 and 216 (b), where such night watchman performs no services other than making an hourly round of the plant at night, while it is not in operation, and punches a watchman's clock located at various stations on the premises of said plant, and is employed for the purpose of reporting any fires and trespassers, and who is kept on duty only in order to enable his employer to obtain reduced fire insurance rates or premiums upon the buildings, machinery, and fixtures situated on the premises, and except for which purpose it is admitted that he would not have been employed.

2. If the Act applies in favor of such watchman does a cause of action for "overtime, liquidated damages (or penalties), and attorney's fees" under the Fair Labor Standards Act, supra, survive the death of the employee, where neither the Act creating the right to recover such compensation or damages, nor any other federal statute, provides for such survival?

3. If the Act applies to such a watchman and the cause of action survives his death, does the Mississippi one-year statute of limitations (section 2301, Code of 1930) apply to suits for the recovery of the amounts here claimed, as being penalties allowed against an employer for noncompliance with the terms of the Act? The suit was filed in the Circuit Court of Claiborne County, on February 13, 1941, by Fred Walton, employee, against the appellant, Southern Package Corporation, employer, alleging the corporation's ownership and operation of a box manufacturing plant in said county during the period of the plaintiff's employment, as night watchman, from August 14, 1939, to February 29, 1940, when he received for such services less than the minimum wages per hour and was on duty for longer hours per week than are prescribed by the said Fair Labor Standards Act of 1938. It is also alleged that according to the terms of this Act, sections 206 and 207 thereof, he was entitled to receive one and one half times his regular wages for all work done in excess of forty-four hours per week from August 14, 1939, to October 23, 1939, when the minimum wage in effect under said act was twenty-five cents per hour; that he was entitled to receive one and one half times his regular wages for all work done in excess of forty-two hours per week from October 23, 1939, to February 27, 1940, when the minimum wage prescribed under said Act was thirty cents per hour; and that under section 216(b) of said Act he was entitled to an additional amount equal to the total wages due for overtime work and a reasonable attorney's fee.

The sections of the Act above referred to provide for the relief claimed in the declaration under the facts therein stated, provided the plaintiff is entitled to the benefits thereof.

Fred Walton died on August 24, 1941, and the suit was thereafter revived, over the objection of the defendant, in the name of his widow, Mrs. Eula May Walton, as administratrix of the estate. Thereupon certain pleas of the defendant were permitted to be withdrawn to allow the filing of a demurrer, alleging no cause of action shown, the want of causal connection between the employment of Fred Walton and the production of goods for shipment in interstate commerce, and the non-survivability of the alleged cause of action. Upon the overruling of this demurrer, pleas were again filed and the cause submitted to the trial judge for decision upon an agreed statement of the facts, without the intervention of a jury, resulting in the rendition of a judgment for the plaintiff in the sum of $400 for overtime, an additional equal amount as liquidated damages, and an attorney's fee of $100, or the total sum of $900 and costs. From this judgment the defendant prosecutes this appeal.

It was stipulated in the agreed statement of facts that the nature of the business in which the defendant was engaged, the character and duration of the employment involved, and the duties of the employee thereunder, were as hereinbefore stated. It was further stipulated that if the employee was entitled to the benefits of the Fair Labor Standards Act, Title 29 U.S.C.A.§§ 206, 207 and 216 (b), there would be accrued under the provisions of said Act the sum of $400 for overtime, of which amount $376 accrued more than one year prior to the filing of the suit, and the balance within one year thereof; that the plaintiff also claims an additional $400, described as liquidated damages under section 216 (b) of said Act, and a reasonable attorney's fee, liability for both of which sums the defendant denied; also, that "no suit or claim has been filed for the minimum wage, and it is agreed that no amount is due hereunder nor claimed in this suit for alleged failure to pay the minimum wage, and that said minimum wage provision of the Fair Labor Standards Act is not involved herein"; that the said Fred Walton was paid for his services the amount that the defendant contracted to pay him, "which amount is agreed upon as the actual value of said services"; that the defendant could have employed more than one person to perform said services at the same rate of pay per hour as was paid to said Fred Walton, and no overtime would have accrued, and that if he had not accepted his pay without protest, defendant would have employed two night watchmen, and thereby incurred no liability for time and one half time for overtime, and that wherefore the defendant has in nowise profited by the said use of one employee as a night watchman instead of dividing said employment between two employees; and that the said Walton requested this employment with full knowledge of the time that he was to be on duty and of the pay that he was to receive, without complaint or protest until the filing of this suit.

It was also agreed that the plant did not operate at night during the period of Walton's employment, and that the defendant corporation was not engaged at night in the production of goods for interstate commerce while he was on duty; that when fires were kept under the boilers in said plant at night, it was done by a fireman kept on duty for that purpose, and that when repairs were made occasionally at night to the machinery, such work was done by employees other than the said Walton-a stipulation which distinguishes the case from that of Hart v. Gregory, 218 N.C. 184, 10 S.E.2d 644, 649, 130 A.L.R. 265, wherein the Court allowed recovery under the Act by a night watchman who was required to pump the boilers up at night to keep the water in them as long as the steam was up so they would not get dry, and where the Court said: "The present case we think comes within the provisions of the Fair Labor Standards Act, as the duties of this night watchman were more than that ordinarily required of one so termed. The duty of plaintiff was to keep water in the boiler so that in the morning steam could easily be available. If the boilers were not kept filled up at night, they would have burned dry and that would have ruined them and made them unfit for use."

In defining what constitutes goods produced for interstate commerce, section 3 of the Fair Labor Standards Act of 1938, Title 29 U.S.C.A. § 203, sub-section (j), states that the term "'Produced' means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State."

Thus, it will be seen that the portion of the language which is to be construed in determining whether the act is to be applied to the employment of the night watchman in the case at bar are the words, "or in any process or occupation necessary to the production thereof, in any State," since he was manifestly not engaged in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods.

In adopting the foregoing and rather unusual definition of the term "produced", as related to the production of goods for interstate commerce, so as to include among those engaged in such employment also those in any occupation "necessary" to the production of such goods, it should be presumed that the Congress thus enlarged the meaning of the term as far as it was deemed expedient. Although numerous terms used in the act are specifically defined therein, the meaning of the word "necessary" was left intact as found in Webster's Dictionary-"Essential to a desirable or projected end or condition; not to be dispensed with without loss, damage, inefficiency or the like; as, a necessary tool." Moreover, unless the term "any occupation necessary to the production thereof" is to be given an expanded meaning by judicial construction, it may be confidently asserted that under the agreed statement of facts in the instant case, the act would have no...