United States v. Atlantic Coast Line R. Co.

• Decision Date: 08 January 1946
• Docket Number: No. 5393.,5393.
• Citation: 153 F.2d 243
• Parties: UNITED STATES v. ATLANTIC COAST LINE R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

153 F.2d 243 (1946)

UNITED STATES v. ATLANTIC COAST LINE R. CO.

No. 5393.

Circuit Court of Appeals, Fourth Circuit.

January 8, 1946.

Henry H. Edens, Asst. U. S. Atty., of Columbia, S. C., and Leo Meltzer, Atty., Department of Justice, of Washington, D. C. (Theron L. Caudle, Asst. Atty. Gen., Claud N. Sapp, U. S. Atty., of Columbia, S. C., and James O. Tolbert, Sp. Asst. to U. S. Atty., of Washington, D. C., on the brief), for appellant.

Douglas McKay, of Columbia, S. C. (Thomas W. Davis, of Wilmington, N. C., and Douglas McKay, Jr., of Columbia, S. C., on the brief), for appellee.

Before SOPER and DOBIE, Circuit Judges, and HAYES, District Judge.

HAYES, District Judge.

The United States brought this action against the defendant to recover penalties under the Hours of Service Act, 45 U.S. C.A. §§ 61-64, alleging sixty separate violations during the period of December 1 to 30, 1943, inclusive, for permitting two telegraphers to work 12 hours each on each day during that period.

The trial court found that an emergency existed during that period which permitted each employee to work twelve hours in a twenty-four hour period on three days each week of the emergency, without incurring a penalty. Accordingly the court allowed penalties for fifteen violations as to each employee, and denied recovery on fifteen counts relating to each employee. From the judgment denying recovery on the thirty counts, the United States appealed. Here the appellant contends that the evidence does not warrant the finding of an emergency nor the exercise of diligence on the part of appellee to avoid the penalty.

The facts giving rise to this action are set forth in the opinion of the trial judge. Briefly stated, the defendant employs three telegraphers on 8 hour shifts for continuous service at Robbins, S. C. This is a mere junction of two railroads over which thirty trains pass daily. It is located in the edge of a Savannah River swamp. There are no houses of any kind and the employees live in box cars. From December 1 to 30, the defendant worked two men twelve hours each day of twenty-four hours because of its inability to secure a third man.

The Government contends each day each employee worked more than nine hours in any twenty-four period constitutes a violation of the Act for which it is entitled to a penalty. The pertinent provisions of the Act are printed below.^*

The defendant contended in the trial court that the conditions prevailing at Robbins during December, 1943, amounted to a "casualty" which rendered the limitation of hours of service inapplicable. However, it did not appeal from the judgment allowing recovery on thirty counts. But it contends that the trial court should be sustained in its finding that an emergency existed throughout December, 1943, thus permitting an employee to work twelve hours per day of twenty-four hours on three days each week, without incurring a penalty.

Section 62 limits the hours of service of railroad employees generally but the proviso cited in the foot note specifically deals with telegraphers and dispatchers. The reason for the proviso seems to arise on account of limiting the hours of their employment to a shorter period than other employees. Telegraphers are limited to nine hours per day of twenty-four hours in places of continuous service, except in case of emergency, when such employees may be permitted to remain on duty four additional hours in a twenty-four hour period on not exceeding three days in any week. In this connection it is significant to note that other employees are limited to sixteen hours of continuous service with a rest period of ten hours or in cases of an aggregate of sixteen hours of service in a twenty-four hour period such employee must have a rest period of eight hours.

The penalties for violating the provisions of the Act are stated in section 63 with this proviso: "Provided, That the provisions of sections 61-64 of this title shall not apply in any case of casualty or unavoidable accident or the act of God."

It is plain that the words "emergency," "casualty," "unavoidable accident" and "the act of God" are not synonymous. All prohibitions and consequent penalties are excused if due to casualty or unavoidable accident or the act of God. An "emergency," as used in this Act, affords some elasticity by permitting the employee to work four additional hours in a twenty-four hour period on not exceeding three days in any week. The other employees who have worked sixteen continuous hours in twenty-four hours after resting ten hours, may again work another sixteen continuous hours. Thus during this forty-two hour period from the beginning of his day an intervening rest period of ten hours applies. In like manner a telegrapher in any week during an emergency shall not be permitted to work more than twelve hours in excess of the hours limited during normal conditions. If we give force and effect to all of the provisions of the Act, which it is our duty to do, unless hopelessly irreconcilable, it is plain that an emergency as used in the Act is an emergency which should be recognized as a condition less excusable than either of its terms, "casualty" or "unavoidable accident" or "act of God." Undoubtedly an emergency could exist without falling under the definition of "casualty" or "unavoidable accident" or "the act of God."

During the "emergency" the hours are limited to nine each twenty-four hours except on three days of the work week the employee is permitted to work thirteen hours per day. The additional working hours are permitted on account of the existence of an emergency. The penalties do not attach unless these limitations are exceeded and if these hours are exceeded on account of casualty or unavoidable...