Vannoy v. Swift & Co.

• Decision Date: 21 April 1947
• Docket Number: 39881
• Parties: Ben Vannoy, Appellant, v. Swift & Company, a Corporation
• Court: Missouri Supreme Court

201 S.W.2d 350

356 Mo. 218

Ben Vannoy, Appellant, v. Swift & Company, a Corporation

No. 39881

Supreme Court of Missouri

April 21, 1947

Appeal from Hannibal Court of Common Pleas; Hon. Roy B Meriwether, Judge.

Affirmed.

Roy Hamlin for appellant.

(1) The trial court erred in granting a compulsory reference upon the application of defendant, because the pleadings in the case raised no issue in reference to any account, or any matter provided by the statutes. Sec. 1142, R.S. 1939; Wahl v Cunningham, 56 S.W.2d 1052; Buchanan v Rechner, 62 S.W.2d 1071; Smith v. Ohio Millers' Mut. Fire Ins. Co., 6 S.W.2d 920. (2) The trial court erred in refusing to grant the plaintiff a trial by jury, same being a civil action for money alleged to be due under the Fair Labor Standards Act. Art. 2, Sec. 28, Constitution of 1875; Art. 1, Sec. 22a, Constitution of 1945; Fletcher v. Grinnell Bros., 150 F.2d 337. (3) The trial court erred in sustaining and confirming the findings of fact and conclusions of law of the referee because, under the pleadings of the defendant, setting up three affirmative defenses, the burden of proving the affirmative defenses was on the defendant and they failed to carry that burden. Ispass v. Pyramid Motor Freight Corp., 152 F.2d 619. (4) The trial court erred in overruling plaintiff's written exceptions to the findings of fact and conclusions of law by the referee and confirming said findings and report of the referee in the absence of plaintiff and his counsel when no notice was served upon plaintiff, or his counsel that said matter would be taken up, and when said matter was not upon the printed docket.

Fuller, Fuller & Ely and Ben Ely for respondent.

(1) The trial court did not err in ordering a compulsory reference of the case. Sec. 1142, R.S. 1939; Creve Coeur Lake Ice Co. v. Tamm, 138 Mo. 385, 39 S.W. 791; Wentzville Tobacco Co. v. Walker, 123 Mo. 662, 27 S.W. 639; Small v. Hatch, 151 Mo. 300, 52 S.W. 190; Cousins Contracting Co. v. Acer Realty Co., 110 S.W.2d 885. (2) The decision of the referee is supported by substantial evidence and demonstrates clearly that a substantial part of the activities of the plaintiff had to do with the operation of motor vehicles in the carriage of freight in interstate commerce and thus affected the public safety, so that his maximum hours of employment were subject to regulation by the Interstate Commerce Commission and hence exempted from the operation of the Fair Labor Standards Act. Sec. 213 (b), Fair Labor Standards Act; Interstate Commerce Act, 49 U.S.C.A., Sec. 304; Richardson v. Gibbons Co., 132 F.2d 627; Schwartz v. Witwer Grocery Co., 141 F.2d 341; McDaniel v. Clavin, 128 P.2d 821; Levison v. Spector Motor Service, 389 Ill. 466. (3) The fact that the Interstate Commerce Commission had not at the time these services were performed actually regulated the hours of labor of such employees did not prevent them from being exempted from the operations of the Fair Labor Standards Act. Southland Gasoline Co. v. Bayley, 319 U.S. 41, 87 L.Ed. 1244, 63 S.Ct. 917. (4) The fact that this particular employee on some of his trips was driving on an intrastate route and that the course of transportation was temporarily broken at Hannibal did not deprive the Interstate Commerce Commission of jurisdiction. Ex parte No. M.C. 3, (Interstate Commerce Commission); Matter of Rush, 17 M.C.C. 661 (Interstate Commerce Commission).

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action under Section 16(b) of the Fair Labor Standards Act of June 25, 1938, 29 U.S.C.A., Sec. 216(b), to recover alleged unpaid overtime compensation, together with liquidated damages and attorney fees. On application of defendant, and over the objection of plaintiff, the Court ordered a reference, appointed Hon. Harrison White, a member of the Hannibal Bar, as referee, and referred the case to him "for the trial and determination of the issues of law and fact." The referee heard the cause on the issues joined, and found for defendant. Plaintiff filed exceptions thereto, which were overruled and judgment was entered for defendant in accordance with the referee's finding. Motion for a new trial was filed and "deemed denied" (not passed on within 90 days). Laws 1943, p. 389, Sec. 118. Plaintiff has appealed.

Error is assigned on the granting of the compulsory reference, and the confirmation of the referee's report.

A compulsory reference may be ordered "where the trial of an issue of fact shall require the examination of a long account on either side." Sec. 1142 R.S. 1939. The correctness of the account must be directly involved and whether the account is in issue in the statutory sense must be determined from the pleadings. Smith v. Ohio Millers' Mutual Fire Ins. Co., 320 Mo. 146, 6 S.W.2d 920, 927; Bank of Oak Ridge v. Duncan, 328 Mo. 182, 40 S.W.2d 656, 658. The court "must assume that the testimony on the accounts and issues involved 'will take the fullest latitude embraced within the pleadings.'" Hancock v. State Highway Commission, 347 Mo. 944, 149 S.W.2d 823.

The petition contained three counts. Each count charged that defendant was a corporation dealing in poultry, cream, eggs and other products, which were being shipped in interstate commerce and that plaintiff was employed by defendant in necessary and essential work incident to the production of said products in interstate commerce. The first count covered the period of plaintiff's employment from October 24, 1938, to October 24, 1939, and during this period plaintiff alleged that he was employed for a period of 646 hours in excess of the 44 hours per week authorized under the Fair Labor Standards Act; and that he was paid for straight time only and not at overtime rates. He alleged he was entitled to time and a half pay for the overtime and asked to recover the balance due him for this period, over the rate actually paid, together with liquidated damages and a reasonable attorney fee, as provided by the act. The second count covered the period of his employment from October 24, 1939 to October 24, 1940, and sought the alleged balance due for overtime pay on 682 1/2 hours worked in excess of 42 hours per week authorized under the Fair Labor Standards Act, together with liquidated damages and a reasonable attorney fee. The third count covered the period from October 24, 1940 to and including October 8, 1942, and sought recovery for the balance due for overtime pay on 2283 hours in excess of 40 hours per week as authorized under the Fair Labor Standards Act. On the first and second counts he alleged he had been paid at the rate of 40 cents per hour and was entitled to 20 cents per hour additional for the overtime worked. On the third count, he alleged that he had been paid at 40 cents per hour on 710 1/2 hours of the overtime and was entitled to 20 cents per hour additional on these hours; that he had been paid 42 1/2 cents per hour on 894 1/2 hours of the overtime and was entitled to 21 1/4 cents additional on these hours; that on 631 1/2 hours of the overtime he had been paid 45 cents per hour and was entitled to 22 1/2 cents additional on these hours; and that on the balance of 46 1/2 hours of overtime he had been paid 47 1/2 cents per hour and was entitled to 23 3/4 cents per hour additional on these hours.

Defendant's answer, after some preliminary admissions concerning incorporation and the fact of plaintiff's employment, contained a general denial and alleged certain facts purporting to show that plaintiff's employment was not under the act, but was within exceptions thereto, as follows: (1) that plaintiff, during a portion of his time, was engaged in selling merchandise at retail in a local retailing capacity in intrastate commerce; (2) that plaintiff was engaged within the area of production in preparing and processing agricultural and horticultural commodities; and (3) that plaintiff was engaged in operating and driving a motor vehicle from Hannibal, Missouri to Keokuk, Iowa, in interstate commerce. The third defense, supra (subsequently sustained), was based upon the alleged theory that plaintiff was in "employment with respect to which the Interstate Commerce Commission had and has power, to establish qualifications and maximum hours of service, pursuant to the provisions of Sec. 304 of Title 49 of the United States Code, being part 2 of the Interstate Commerce Act; and that such employment is excepted from the operation of Sec. 7 of the Fair Labor Standards Act by the exception granted in Sec. 13(b)(1) of the Fair Labor Standards Act." 29 U.S.C.A., Sec. 213(b)(1). Plaintiff's reply was a general denial.

Defendant's general denial (filed prior to the New Code of Civil Procedure) put in issue the essential allegations of the petition, including the number of hours worked by plaintiff during each week of the whole period of his employment, some 206 weeks, the number of overtime hours during each week and during each particular period set out, the regular rate of pay during each period, the amount paid during each week and each period, the character of the employment and other facts. While the petition did not set out a complete account week by week of plaintiff's employment showing the number of hours worked, the amount paid per hour and the number of hours of overtime, yet it is clear from the pleadings that the burden of proof rested upon plaintiff to prove the allegations of his petition and that it could only be done in the manner stated. The correctness of the items composing the account, that is, the overtime hours worked during each week of each period and the payments made and balances due was essential to the recovery sought.

The nature of the proceeding, as one for compulsory reference or otherwise, is to be...