Opinion
No. 11915.
November 4, 1947.
Appeal from the District Court of the United States for the Northern District of Florida; Augustine V. Long, Judge.
Action by G.F. Moore and J.L. Owens, for themselves and as agents and representatives of L.T. Arristen, and others, against J.A. Jones Construction Company, for unpaid overtime and other compensation under Fair Labor Standards Acts of 1938, 29 U.S.C.A. § 201 et seq. From a judgment of dismissal, the plaintiffs appeal.
Reversed and remanded for trial on merits.
E.C. Boswell, of Panama City, Fla., for appellants.
Thomas Sale and Walter G. Cornett, both of Panama City, Fla., for appellee.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
The suit, brought under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., was for unpaid overtime and other compensation. The district judge, of the opinion that, under L.P. Phillips, et al. v. Graham Aviation Company, 5 Cir., 157 F.2d 443, appellants' complaint did not state a case for recovery, sustained defendant's motion to dismiss and dismissed the complaint. Plaintiffs' suit alleged that the persons for whom the suit was brought were engaged in the production of goods for commerce. The cited case on which the judge relied is not in point. It did not deal with persons so employed. It was error to dismiss the claim. Under a long line of cases, of which Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Armour Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118; Skidmore v. Swift Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124, are the controlling ones, the judgment is reversed and the cause is remanded for trial on the merits.