Opinion
No. 27724.
April 18, 1950.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, RAYMOND E. LaDRIERE, J.
John Q. Brown, Clayton, James Q. Brown, Clayton, for appellant.
Philip A. Foley, Clayton, for respondents.
Plaintiff, Anna Krueger, brought this action against defendants, James L. Fitzpatrick and Lena M. Fitzpatrick, to recover the sum of $981, alleged to be due and owing her for services rendered as an employee of defendants. The case was tried by the court, a jury having been waived, and resulted in a finding and judgment for the defendants. From this judgment, plaintiff has appealed.
In 1946, defendants, who were husband and wife, operated a sandwich shop and root beer stand known as the A W Root Beer Stand, 8060 Clayton Road in St. Louis County. Plaintiff worked at this place of business from April 22, 1946, to June 28, 1946. For this service plaintiff received the sum of $376.67, which amounted to $40 per week for the entire period of service. However, plaintiff claims that, in addition to the foregoing amount, she is entitled to overtime pay for services rendered in excess of 40 hours per week, at the rate of $1.50 per hour. The defendants' claim is that, by agreement of the parties, plaintiff was to receive 15 per cent of the net profits, with a drawing account of $40 per week; that she received said drawing account, which amounted to more than 15 per cent. of the profits, and for that reason is not entitled to recover any further compensation by this action.
Plaintiff testified:
"Q. When you were employed by Mr. and Mrs. Fitzpatrick what arrangements, if any, were made? A. A salary of forty dollars a week, and time-and-a-half for overtime, because I didn't know how much I would have to work or how long.
"Q. Forty dollars a week for how long? A. For forty hours.
"Q. For forty hours. And if you worked over forty hours, what were you to receive? A. Time and a half for over-time.
"Q. How much would that be? A. A dollar and a half an hour."
Plaintiff testified as to the hours she worked each day during the period of her employment. Her testimony shows that on most of the days from April 22d to June 28th she worked from 9:30 a. m. until 2:15 o'clock the following morning. Her testimony shows a total of 937 hours worked. She acknowledged receipt of $376.67, which would, according to her theory of the case, compensate her at the rate of $40 for forty (40) hours' work per week — leaving her uncompensated for 560.33 hours of over-time.
In further support of her position, plaintiff introduced tax withholding receipts made out by defendants showing as wages the sum of $40, and withholding and social security tax deductions.
Mr. Fitzpatrick testified that at no time when plaintiff was paid the amounts due, as shown in these receipts, did plaintiff ever claim overtime pay.
About the time plaintiff was employed the defendants bought another place called the "Hickory House," and, according to defendants' evidence, it was contemplated that they would operate the "Hickory House" and that plaintiff would manage the "A W" place on Clayton Road.
Defendant James L. Fitzpatrick testified: "Our agreement with Mrs. Krueger was that she would have full charge of it, operate it during the summertime while we operated the Hickory House; and that she would receive fifteen per cent of the net profits with whatever type of draw against that up to forty dollars a week that she would like to have."
Mr. Fitzpatrick further testified that plaintiff accepted defendants' proposition and undertook her duties as manager. He further stated:
"Mrs. Krueger was to put in a minimum number of forty-eight hours a week, and, in a managerial capacity, anything in addition to that that she didn't have help to handle.
"Q. In other words, she was to be in full charge and take full responsibility? A. Yes, sir.
"Q. There was no question as to the number of hours she was to put in? A. No, sir."
Defendants sold the Hickory House shortly after the time plaintiff started to work. However, according to the testimony of Mr. Fitzpatrick, that had no effect on the agreement between the parties. Mr. Fitzpatrick testified:
"* * * we told her her agreement would stay in effect in spite of the fact we had disposed of the Hickory House, and we would be there to assist her.
"Q. Did you come over to Clayton Road, you and your wife, to assist her? A. We did.
"Q. Was there anything ever said to you, Mr. Fitzpatrick, by Mrs. Krueger, that she was to receive time-and-a-half for her overtime during the ten weeks she was working there? A. No, sir.
"Q. Did she take charge of the hiring and firing people there? A. There were — I recall definitely of her hiring one, possibly two, and dismissing two."
The witness further testified that he had offered to give plaintiff an accounting of the money due her up to the date of termination of her employment, and that he had checked with the bookkeeping department and found that the amount drawn by plaintiff was greater than 15 percent. of the profits for the time she worked.
Mrs. Fitzpatrick corroborated the testimony of her husband with respect to the terms of the agreement which they had with plaintiff. Mrs. Fitzpatrick testified:
"* * * she was to manage it that season, and she was to be paid fifteen per cent net profit; she was to work a minimum of eight hours a day a week, and we planned to stay open seven days a week at that time, which we did at first, but later started closing one day a week; * * * my husband said to her: `I am afraid that the hours might be too long for you, Mrs. Krueger. I would like to have you as manager, but I am afraid it would be too hard on you;' and she said, `Oh, no, I am very strong because I have been working,' — I don't recall how long — at the war plant during war years she had worked seven days a week, day and night; and she said it wouldn't injure her health she didn't think to work the hours that she might of necessity have to work as manager of the stand. So then we made the agreement, then later we were told we could have a good lease on the stand; of course, we didn't want to operate two places, so we sold the Hickory House; and we didn't change our agreement with Mrs. Krueger except that we would be there part of the time to help her, and that she was to have full charge of it any time we were not there.
* * * * * *
"It was our suggestion that she draw forty dollars. She said she would prefer to draw twenty-five or thirty because she didn't want her husband to know how much money she was making, and she would rather have more at the end of the season; and then, of course, he would only know * * * that she would be making only what she took home once a week. So my husband suggested that we give her forty dollars, `because,' he said, `we have no assurance that we will make anything; if you are willing to go along with us and take your chances on this deal, we will do it, and if we don't make anything, and you don't have any percentage coming for all the hours you are going to put in there, at least we will feel as though we have been paying you a decent wage, if it happened to turn out to be just wages.' She didn't want us to pay her forty dollars a week drawal, but we insisted on it, because he said, `if you don't happen to make any commission, you will have been paid something fair anyway.'"
Mr. Fitzpatrick further testified that they sold the "Hickory House" prior to the time they again opened up the place on Clayton Road, and that she and her husband went back to the Clayton Road property to assist in running the place. She also stated that their daughter worked there as an employee, along with other youngsters they employed. She further testified: "Q. Was there any time you insisted that Mrs. Krueger stay the whole sixteen hours if she didn't want to? A. No, except once, I recall on Saturday she had worked all day, and she was leaving to go home about nine o'clock that night, and I had a telephone call my brother had had a heart attack, and so my daughter and I went down there, and she went back and asked Mrs. Krueger to work that night, because we were short of help, and because of my brother's sudden illness, we asked her to come back and work that night. And there may have been other times we asked her to work at night if we were short of help, because she was naturally expected to be there anyway; that was our agreement, any time we needed her, she was to work."
Plaintiff denied that she ever had an agreement with defendants by the terms of which she was to receive 15 per cent. of the net profits of the business. She further stated she had no discussion with the defendants about acting as manager of the stand; and that there never was any discussion as to what she was to receive, except that she was to be paid $40 per week and time-and-a-half for overtime.
On cross-examination, plaintiff testified that at the end of each week she received a slip of paper from the defendants showing the amount of earned wages, deductions, and net amount due, for which latter sum she received a check. She further testified that when she received these slips and checks, ten in all, she made no claim that overtime was due to her.
Plaintiff's first claim for overtime, according to her own testimony, was made after she quit working at defendants' place of business; and it was two years later that she brought this suit.
It further appears that it was the practice for employees to enter the time of arriving at work and the time of leaving on time slips which were attached to the wall at defendants' place of business. Plaintiff testified that she was told she did not need to mark these time slips, but that at times she did and at other times some of the boys did it for her. She further testified that these time slips did not show that she worked any overtime, although over-time appears for other employees.
Mrs. Fitzpatrick testified that she had checked these time slips. She further testified: "* * * the brown sheets are only marked `on'; she never marked any time that she worked as she says, overtime, but we never thought anything about it being overtime, because she was supposed to work at any time; that was the agreement with her. * * * She just marked `on' for the day. She never put down any overtime, and there was never any thought about it in our mind because she was to receive the fifteen per cent on net profit for the hours she was putting in there, and the number of hours were not important so far as her pay was concerned."
The evidence shows that other employees marked the time of coming to work and the time of leaving. It also appears that other employees were paid for overtime work.
Reed Adams, who worked as a cook at the defendants' place of business, testified that when he worked at night he took orders from Mr. and Mrs. Fitzpatrick, but later transferred to day work, at which time he took orders from Mrs. Krueger. He stated that Mrs. Krueger was the one who told those in the kitchen what they should do, and that she took complete charge in the absence of Mr. Fitzpatrick.
Other employees testified to receiving orders from Mrs. Krueger.
It appears from the testimony that Mrs. Krueger opened the place every morning and that she had charge of the linens. It appears, however, that Mr. Fitzpatrick had charge of ordering supplies.
Plaintiff stated that during the time she was employed her duties consisted of "everything in the kitchen, grill cook, sweeping the kitchen, cleaning the washroom, check the laundry, and give the boys their uniforms and see that they checked all the dirty ones in; and make dressings; making hamburgers; stamping hamburgers, and bagging them up."
Plaintiff denied that she was in complete control of the place, and denied she ever exercised the right to hire and fire anybody there. She stated that when neither Mr. nor Mrs. Fitzpatrick were there, their daughter Norma Jean instructed the help; that Mr. and Mrs. Fitzpatrick, or Norma Jean, were there at all times; that she never issued orders to employees, but just worked in the kitchen, doing everything that was to be done.
Appellant challenges the correctness of the judgment on the ground that it is against the evidence, and contrary to the weight of the evidence.
There was no request by either party that the court prepare and file an opinion or statement of the grounds of its decision; and no findings of fact or conclusions of law were made by the trial court. See Section 114(b) Laws Missouri 1943, page 388, Mo. R.S.A. § 847.114(b). But the absence of such a request is no bar to appellate review. Our duty is to review the case upon both the law and the evidence, as in suits of an equitable nature. However, we cannot set aside the judgment unless it is clearly erroneous, and in passing on the case due regard must be given to the opportunity of the trial court to judge of the credibility of the witnesses. Section 114(d) Laws Missouri 1943, page 388, Mo.R.S.A. § 847.114(d).
The decisive issue in the case was whether, by the terms of the agreement, plaintiff was to receive as wages the sum of $1 per hour for a 40 hour week, with time and a half for overtime, or whether she was to be compensated by sharing in the net profits of the business. There was substantial evidence to support a finding either way on this issue. However, a decision of this issue cannot be made without passing on the credibility of the testimony of the parties.
This case presents a typical situation calling for the rule of due deference enjoined upon us by Section 114(d) of the Code.
We have examined the evidence and carefully weighed the same and, after giving due regard to the superior opportunity of the trial court to resolve the question of credibility, have reached the conclusion that plaintiff failed to sustain the burden of proof which the law casts upon her, and for that reason are of the opinion that she should not recover. The judgment appealed from is affirmed.
McCULLEN, J., concurs.
HUGHES, J., absent when case was argued and submitted.