Via v. Asbestos Textile Co.

• Decision Date: 04 January 1957
• Citation: 335 Mass. 210,139 N.E.2d 393
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Luther E. VIA v. ASBESTOS TEXTILE COMPANY, Inc.

Page 393

139 N.E.2d 393

335 Mass. 210

Luther E. VIA v. ASBESTOS TEXTILE COMPANY, Inc.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 25, 1956.

Decided Jan. 4, 1957.

Morris Newman, Worcester, for plaintiff.

John F. Driscoll, Worcester, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

COUNIHAN, Justice.

This is an action of contract in which the plaintiff seeks to recover attorney's fees and for overtime work under the Fair Labor Standards Act of 1938, as amended, now appearing in U.S.C. (1952 ed.) Title 29, § 201 et seq.

The declaration is in two counts. In the first count the plaintiff seeks to recover unpaid overtime compensation in the amount of $2,441.25 and an equal amount as liquidated damages by virtue of § 216(b). In the second count he seeks to recover unpaid overtime compensation in the sum of $3,000, and liquidated damages in an equal amount. In this count he also seeks to recover reasonable attorney's fees in the sum of $2,500.

The first question for us to decide is whether in the circumstances hereinafter described this case is properly before us.

From the record before us it appears that a judge of a District Court, after trial, found for the plaintiff and assessed damages on each count. Upon a report to the Appellate Division, claimed by the defendant, prejudicial error was found at that trial and a new trial was ordered by a decision of the Appellate Division dated August 22, 1949. On August 27, 1949, the plaintiff filed an appeal to this court from that decision. It appears from the docket of the District Court, a certified copy of which is before us, that a new trial was held before another judge which resulted in a finding for the defendant. Upon a report to the Appellate Division, claimed by the plaintiff, no prejudicial error was found at the second trial and the report was dismissed on January 3, 1956. On January 5, 1956, the plaintiff claimed an appeal to this court from that second decision and the case was then duly entered in this court. The plaintiff caused to be printed and presented to us a record showing the proceedings at the first trial, the action of the Appellate Division on the first report, and the two appeals to this court above referred to.

The contentions of the plaintiff are that there was no error at the first trial; that he is entitled to judgment on the finding at that trial; that the Appellate Division erred in ordering a new trial; and that all subsequent proceedings arise out of and are vitiated by that error. The case was argued by both parties and heard by us solely on this issue.

It has been settled that a decision of the Appellate Division ordering a new trial is not a final decision within the meaning of G.L. (Ter.Ed.) c. 231, § 108, as amended, and § 109, from which an appeal can be taken. Here, however, after the second trial, upon a report claimed by the plaintiff, there was a final decision of the Appellate Division dismissing that report and the plaintiff duly claimed an appeal to this court from that decision. That appeal brings here for review both the first and second decisions of the Appellate Division, although questions of law, if any, arising at the second trial do not appear in the record. The decision ordering a new trial is therefore properly before us. For a full discussion of the principles of law involved see the majority opinion in Weiner v. Pictorial Paper Package Corp., 303 Mass. 123, 125-130, 20 N.E.2d 458, with ample citation of authority. Redfield v. Abbott Shoe Co., 335 Mass. ----, 139 N.E.2d 391.

We proceed, therefore, to inquire whether the first decision of the Appellate Division was correct.

In answer to a motion for specifications filed by the defendant, the plaintiff specified that the dates on which he earned overtime compensation, as set forth in each count, were from June 12, 1944, through August 25, 1945, and that the amount due him for overtime was $2,244 and a like amount for liquidated damages.

At the first trial before a special justice of the District Court the plaintiff filed eighteen requests for rulings most of which were given and the others denied. The defendant likewise filed requests for rulings all of which were denied. In view of what hereinafter is said, we consider only the sixteenth request of the plaintiff which was given and which reads, 'Upon all the evidence a finding for the plaintiff is warranted on each count.'

The judgment made 'Findings and Rulings' the vital parts of which read, 'I further find that the plaintiff is entitled under * * * [§ 216(b)] to overtime compensation liquidated damages and a reasonable attorney's fee. Under count 1 of the plaintiff's declaration based on the records of the defendant, I find that the plaintiff earned $2,477.80 for overtime pay. Attached hereto marked (A) is a week by week breakdown of the above overtime figure earned by the plaintiff. * * * As count 1 of the plaintiff's declaration calls for $2,441.25, I find for the plaintiff in count 1 for $2,441.25, plus $2,441.25 liquidated damages and $1,200 for attorney fees. Total for count 1 is $6,082.50. Under count 2 of the plaintiff's declaration based on time books kept by the plaintiff as part of his duties (plaintiff's exhibit No. 2) (three books), I find that the plaintiff is entitled to $65.70 for overtime. This overtime is in addition to the overtime shown by the defendant's records in count 1. Attached hereto marked 'B' is a week by week breakdown of the above figure. I find for the plaintiff in count 2 in the sum of $65.70, plus $65.70 liquidated damages and $35 for attorney fees. Total for count 2 is $166.40. The totals for counts 1 and 2 are $6,248.90.' An award for attorney's fees is authorized by the fair labor standards act.

It is plain from what is marked 'A' and 'B' appended to the 'Findings and Rulings' that the judge awarded damages on count 1 for overtime work up to and including April 13, 1946, and on count 2 for overtime work up to and including April 6, 1946, periods extending beyond those set forth in the plaintiff's specifications.

The defendant seasonably filed a motion for a new trial on the grounds that: '1. The finding is against the evidence. 2. The finding is against the law and the evidence. 3. The damages are excessive.' It also filed requests for rulings of law on the motion of which the following appear relevant. '1. That the damages awarded in the above entitled case are excessive. 2. Where the plaintiff has filed specifications, his proof must conform substantially to the specifications. Shea v. Crompton & Knowles Loom Works, 305 Mass. 327, 329, 25 N.E.2d 725, and cases cited therein. 3. That the plaintiff is not entitled to recover in this action for a...