United States v. McCrory

• Decision Date: 27 January 1903
• Docket Number: 701.
• Parties: UNITED STATES v. McCRORY.
• Court: U.S. Court of Appeals — Fifth Circuit

119 F. 861

UNITED STATES v. McCRORY.

No. 701.

United States Court of Appeals, Fifth Circuit.

January 27, 1903

Wm Vaughn, U.S. Atty.

Denson & Tanner, for complainant.

In Error to the District Court of the United States for the Northern District of Alabama.

This is a suit brought by defendant in error, a letter carrier at the post office of Birmingham, Ala. to recover for alleged extra time which he claims he was employed over and above eight hours per day under an act of congress entitled 'An act to limit the hours that letter carriers in cities should be employed per day,' approved May 24, 1888 (U. S. Comp. St. 1901, p. 2637). The claim amounts to $253.26. The petition was regularly served. The United States answered denying the indebtedness.

The case was tried in the district court on an agreed statement of facts, as follows:

'James T. McCrory, Complainant, v. The United States,

Defendant.

(No 52.)

'It is hereby agreed by and between counsel for complainant and defendant in the above-stated cause that the amount herein sought to be recovered from the defendant arose under the following state of facts, viz.: That the complainant was from the 1st day of December, 1894, to the 1st day of February, 1896, a duly appointed and acting letter carrier in the employment of the United States (defendant) as such at the Birmingham, Alabama, post office, in the city of Birmingham, Alabama, at a salary of $600.00 per annum. That his salary was on the 1st day of February, 1896, increased to the sum of $850.00 per annum and that the complainant continued in the employment of the defendant as such letter carrier at said salary of $850.00 from the 1st day of February, 1896, to the 1st day of December, 1894, to the 1st day of February, 1896, while the complainant was receiving from the defendant a salary of $600.00 per annum, there were daily intervals between the complainant's daily trips in collecting and delivering the United States mail in the city of Birmingham, varying in duration, but which in the aggregate amounted to 425 hours, at 20 5/8 cents per hour. That during the aforesaid period from the 1st day of February, 1896, to the 1st day of January, 1897, while the complainant was receiving from the defendant a salary of $850.00 per annum as such letter carrier, the complainant had similar intervals daily between his said daily trips in collecting and distributing the United States mail in the city of Birmingham, Alabama, which in the aggregate amounted to 567 hours and ten minutes, at 29 5/24 cents per hour. That the said intervals between said daily trips were in number from two to three hours per day, and varied in duration as aforesaid from 30 minutes to 2 1/2 hours, according as the amount of mail for collection and distribution was large or small. That these idle intervals were exclusive and in excess of the 8 hours of actual and active service which the complainant performed as such letter carrier daily for the defendant. That during the said intervals the complainant was by the rules of the post office department excluded from the post office, but was under the control and direction of the postmaster to the extent that the post master had the right, power, and authority to summon the complainant to duty at any time during any of said intervals and send him out again collecting or delivering mail, or assign him to any other duty within the range and line of his employment as such letter carrier. That during such intervals complainant was not required by the postmaster or any rule or regulation of the post office department to keep on his uniform, and could keep it on or discard it as he might desire, but that while on duty he was required to wear his said uniform. That, by reason of the said right, power, and authority of the postmaster to summon the complainant to duty at any time during any of said intervals, the complainant was prevented and prohibited from obtaining or accepting other employment during such intervals except such employment as should be subject and second to the right, power, and authority of the postmaster to at any time so summon the complainant to duty during any and all of said intervals, and the complainant could not and did not obtain other employment. That the complainant did not actually do or perform any work or service for the defendant during any of the intervals which makes the aggregates aforesaid, but was subject during all of said intervals to be summoned by the postmaster to duty as aforesaid within the line of his employment as such letter carrier, but was under the control and direction of the postmaster during said intervals as aforesaid. That, in computing the aggregate of said intervals aforesaid, the daily dinner hour from 12 to 1 o'clock p.m. is not included. It is further agreed that this statement of facts may be taken and considered by the court as the facts in each of the other 18 cases now pending seeking a similar recovery of the defendant, except as to the amount involved in each, respectively, and the court may in each of said cases pronounce its findings, conclusion, and judgment accordingly.'

The trial judge found the facts to be as set forth in the foregoing agreement, and from that finding concluded that the petitioner was entitled by law to a &w judgment for the recovery of the amount claimed by him, and rendered judgment accordingly. From this judgment in due season the United States sued out a writ of error on February 28, 1898, and the transcript was filed in this court April 12, 1898. Before the case was heard on this writ, congress passed an act entitled 'an act to amend sections 1 and 2 of the act of March 3 1887,' approved June 27, 1898 (U.S. Comp. St. 1901, p. 752), wherein the jurisdiction of the district and circuit courts to entertain suits against the United States, on the part of the officer of the United States, to recover fees for services rendered, was taken away; and thereupon, on motion of the defendant in error, the writ of error pending in this case was abated. See U.S. v. McCrory, 33 C.C.A. 515, 91 F. 295. Subsequently congress passed the following: 'An act for the relief of claimants having suits against the United States pending in the...