Opinion
35444.
DECIDED FEBRUARY 9, 1955. REHEARING DENIED FEBRUARY 25, 1955.
Complaint. Before Judge Henson. Fulton Civil Court. September 16, 1954.
James L. Mayson, for plaintiff in error.
Under all the pleadings and all the evidence in this case, a judgment for the defendant was demanded, and the trial court did not err in so directing the verdict.
DECIDED FEBRUARY 9, 1955 — REHEARING DENIED FEBRUARY 25, 1955.
William C. Walker (hereinafter called the plaintiff) brought suit in the Civil Court of Fulton County against Southeastern Bag Crate Company (hereinafter called the defendant). The petition alleges in paragraph 2 that the defendant, engaged in the business of buying and selling bags, boxes, crates, and cans in several States, is engaged in interstate commerce, and therefore is subject to the provisions of the Fair Labor Standards Act of 1938 as amended (Title 29, secs. 201 through 219, U.S. Code Ann.). (Admitted by the defendant's answer.)
Paragraph 3 alleges that the plaintiff was employed by the defendant on November 2, 1953, in the capacity of buyer and salesman at a salary of $40 per 40-hour week, and that said salary was increased to $50 per 40-hour week on January 2, 1954. (Admitted by the defendant, with the exception that "the plaintiff was not employed on a basis of 40 hours per week, but was employed as a buyer and salesman with a salary of $40 per week, which was later increased to $50 per week. Said plaintiff had complete control of his own time and the hours which he worked.")
Paragraph 4 alleges that, although the plaintiff was employed as buyer and salesman, the duties required of him were those of laborer, truck driver, office clerk, buyer and salesman. (In answering this paragraph, the defendant says "that plaintiff was employed as buyer and salesman and performed only those duties incident thereto as required by his employment.")
Paragraph 5 alleges that the plaintiff was required to deliver, pick up, by and sell merchandise in South Carolina, Georgia, Alabama, Mississippi, and Florida. (Admitted by the defendant.)
Paragraph 6 alleges that the plaintiff is entitled to the protection and benefits of the Fair Labor Standards Act. (Denied by the defendant in the answer.)
Paragraph 7 alleges that the defendant is indebted to the plaintiff in the sum of $495 for unpaid overtime compensation for work in excess of 40 hours per week. (Denied in the defendant's answer.)
Paragraph 8 alleges that demand for the aforesaid unpaid overtime compensation was made and refused by the defendant. (Defendant answers, saying that demand has been made, but denies that any payment for overtime is due.)
Paragraph 9 alleges: "That plaintiff is entitled to recover from the defendant, by reason of the said Fair Labor Standards Act of 1938, as amended, the sum of $495 for unpaid overtime compensation, together with the sum of $495 as liquidated damages, together with such reasonable attorney's fees as to the court seems just and proper." (Denied in the defendant's answer.)
The evidence shows substantially the following: Ceban L. Hulsey, a co-worker with the plaintiff, testified that the plaintiff worked "right along with me." He further testified: he had no idea of how many hours the plaintiff worked except for the times when the plaintiff worked right along with him; they were on duty the same hours; the witness was paid a weekly salary of $60; the witness really did not know how many hours the plaintiff worked; the witness sometimes made more than 40 hours per week.
The plaintiff made a sworn statement, substantially covering the allegations of the petition as to duties, hours, and pay.
The manager of the defendant company testified for the defendant: that he did the hiring and firing of employees; that he employed the plaintiff "as buyer, seller, or anything that he could find that he could do for the betterment of the company, because I had no specific job for him. . . He [the plaintiff] first came to me as a collector of bad checks. . . At the termination of [the plaintiff's] employment he did not say anything at all about . . . working overtime and wanting overtime pay. . . I paid him according to my contract up to the time his employment was terminated. . . So far as his hours were concerned, he had absolute control of his own time. He went and came as he wanted to. . . Some weeks he did work the full week; some weeks he did not." The witness further testified that the hours of the plaintiff's employment were irregular, and could not be ascertained positively.
F. H. Camp testified for the defendant: that he worked in the office of the defendant; that the plaintiff first worked for the defendant collecting bad accounts, and later was made a salesman; that, "as to whether or not I am familiar with the hours Mr. Walker worked while he was employed by the Southeastern Bag Crate Company — I know he didn't work too many. I didn't myself have any specific hours to come to work. I didn't keep any record of how long any employees worked."
There was some evidence that employees probably made more than 40 hours per week, but employees working on their own had no record of how many hours were actually made. There was some evidence that the merchandise sold by the defendant probably went outside the State, although the market was located adjacent to the State Farmers Market in Atlanta. On this point the man who kept books for the company, F. H. Camp, testified: "I am acquainted with the sales made by the company, where they are made. I am acquainted with the sales, or the percentage of the sales made within the State of Georgia. I would say at least 85 or maybe 90 percent of the sales that are made by the defendant are made in the State of Georgia to people in the State of Georgia. As to what percentage of the sales are made to the ultimate consumer, I would say about 90 percent of them, around 85 or 90 percent go direct to the users. They are the only ones who have any need for the material; as to my explanation of the meaning of `ultimate consumer,' the ones who put the produce products into the containers. . ." The manager of the defendant company testified: "As to what percentage of our sales were made within the State of Georgia, a conservative estimate would run 85 or 90 percent within the State of Georgia. The percentage of our sales that go to the ultimate consumer runs well over 80 percent. . . I am willing to testify definitely and go on record that 85 or 90 percent of our business is done in the State of Georgia and is what I term a retail sale."
At the trial, the Judge of the Civil Court of Fulton County directed the jury to return a verdict in favor of the defendant. On this verdict the plaintiff assigns error on the ground that the evidence did not demand a verdict for the defendant, that the evidence demanded a verdict for the plaintiff, and that the plaintiff was entitled to have a jury pass on conflicts in the evidence as to material facts.
This case is brought by direct bill of exceptions to this court under the provisions of the Fair Labor Standards Act.
Under all the pleadings and all the evidence in this case, which we have set out substantially hereinbefore, the judgment and verdict for the defendant were demanded, and the trial court did not err in so directing the verdict.
Judgment affirmed. Townsend and Carlisle, JJ., concur.