Opinion
33533.
DECIDED MAY 23, 1951. ADHERED TO ON REHEARING JULY 27, 1951.
Complaint; from Fulton Civil Court — Judge Etheridge. February 9, 1951. (Application to Supreme Court for certiorari.)
Phillips, Johnson Williams, for plaintiff.
Arnall, Golden Gregory, for defendants.
Where it appears from the plaintiff's petition, in a suit brought by an employee against his employers under sections 6 and 7 of the Fair Labor Standards Act ( 29 U.S.C.A. secs. 206, 207) to recover overtime compensation, that the duties of the employee were in interstate commerce, even though part of such duties consisted in driving a truck for his employers to places within and without the State, such petition was not subject to general demurrer on the ground that the plaintiff's employment was such as to be expressly excepted from said section 7 of said act under section 13 (b) (1) thereof. See 29 U.S.C.A. sec. 213 (b) (1), which provides that where no special plea to that effect was filed by the defendant employers and where it did not affirmatively appear from the allegations of the petition, as amended, that the duties of the plaintiff employee were such as to come within the regulatory powers of the Interstate Commerce Commission under the Motor Carrier Act. See 49 U.S.C.A. sec. 304.
DECIDED MAY 23, 1951. ADHERED TO ON REHEARING JULY 27, 1951.
Charlie Albert Reese brought suit in the Civil Court of Fulton County against Henry Grogan, Isadore Alterman, George A. Alterman, Sam P. Alterman, and Max Alterman, doing business as Alterman Brothers, a wholesale grocery establishment in the City of Atlanta, said State and county, in which suit the plaintiff, a former employee of the defendants, sought to recover of the defendants the sum of $179.25 for overtime wages due him and the additional sum of $179.25 for liquidated damages, together with a reasonable attorneys' fee for the filing and prosecution of such suit. The plaintiff sought to recover of the defendants, in an employee against employers action, brought under the provisions of the Fair Labor Standards Act of the United States Congress ( 29 U.S.C.A. 201 et seq.). The plaintiff alleged that during the period commencing January 26, 1950, and ending September 23, 1950, the defendants employed him as a helper in their wholesale grocery business; that during this time the defendants were also engaged in interstate commerce within the meaning of said act; that during this time the minimum wage under the Fair Labor Standards Act was 75 cents per hour for a 40-hour week; that during said period the plaintiff worked for the defendants 478 hours in addition to working the regular 40 hours per week, receiving for the time worked by him, both the regular 40 hours each week and the 478 hours of overtime worked, only 75 cents per hour; and that the defendants were due him the several sums sued for. The defendants filed their general and special demurrers to the petition. By amendment the plaintiff struck from the petition Henry Grogan as a defendant. In this amendment, the plaintiff set up that the nature of the defendants' business consisted in the purchasing, selling and delivering at wholesale food within and without this State; that they purchased substantially all food so handled from without this State; that a substantial part thereof so purchased is brought into Georgia by trucks and the other part by rail and unloaded from the boxcars at the railroad siding of the defendants at their warehouse; that such foods are delivered to the warehouse in Atlanta for the purpose of being rerouted to various retail grocery stores within and without Georgia, or the same are unloaded for early future delivery in accordance with orders received from these stores; that the plaintiff has been informed and believes that the defendants own or have an interest in some of the retail stores to which deliveries of this food are made; that during the plaintiff's employment with the defendants "he was engaged for a substantial part" of his time, during each week he was so employed, in handling goods in interstate commerce; that his principal duties in the defendants' employment consisted in helping to unload the foods brought from without the State to their warehouse in Atlanta, in helping to load such foods into defendants' trucks for delivery to stores outside Georgia and to aid in unloading same at these stores, and to move with hand trucks foods in said warehouse, and to drive the trucks of the defendants in making such deliveries outside of this State; and that all these duties were regularly and consistently performed by the plaintiff each week of his employment with the defendants, "but that the same were so intermingled that he cannot with definiteness show the number of hours nor days spent in each task during each work week." This amendment was allowed subject to demurrer. The defendants demurred to the plaintiff's petition, as amended, generally because the plaintiff failed to set out a cause of action against them, and also because the amended petition shows on its face that the plaintiff "is excluded from the benefits of section 7 of the Fair Labor Standards Act ( 29 U.S.C.A. 207) for the reason that plaintiff was within the exemption provided by section 13 (b) (1) of said act ( 29 U.S.C.A. 213 (b) (1)." The defendants also renewed their special demurrers to the petition as amended.
The trial judge sustained the general demurrer of the defendants to the petition as amended, and dismissed the same, stating in his order that the special demurrers were not passed upon. To this judgment the plaintiff excepts.
This case is in this court upon the sustaining of a general demurrer to the petition of the plaintiff, as amended. The amended petition discloses that from January 26, 1950, until September 23, 1950, the plaintiff was employed by the defendants, who were engaged in the wholesale grocery business in Atlanta, which business consisted in the buying, selling and distributing of goods, received from outside the State and of rerouting some of such goods to retail stores both within and without the State of Georgia. During this time there was in force the Fair Labor Standards Act of the Congress, known as the Wage and Hour Law, regulating the wages and hours of these employees engaged in commerce or in the production of goods in interstate commerce. See U.S.C.A. sec. 201 et seq. The question is, was the plaintiff engaged in the performance of such duties with the defendants, a large portion of whose business was in interstate commerce, as would bring him within the wage and hour provisions of said law? Said act provides that "Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates," stipulating the rates to be paid to employees, and that "No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce" for a work week longer than 40 hours unless such employee receives compensation therefore in excess of 40 hours at a rate of not less than one and a half times the regular rate. 29 U.S.C.A. secs. 206, 207.
Therefore, in order for the defendants to be liable under the provisions of the Wage and Hour Law for the overtime compensation sued for by the plaintiff employee, it is necessary that the plaintiff be "engaged in commerce or in the production of goods for commerce." Pyron v. Arnold, 67 Ga. App. 742 ( 21 S.E.2d, 461). It is sufficient if a substantial portion of the plaintiff's duties in his employment with the defendants is "in commerce or in the production of goods for commerce." Orange Crush Bottling Company v. Tuggle, 70 Ga. App. 144 ( 27 S.E.2d, 769). Employees performing both exempt and non-exempt work during the same work week are entitled to the overtime compensation as provided for under the above law. Northshore Corp. v. Barnett, 143 Fed. (2d) 172.
It does not appear as a matter of law that the plaintiff is entitled to recover. However, the petition, as amended, makes a case for submission to the jury to determine whether or not the work of the plaintiff or a substantial portion thereof was "in commerce or in the production of goods for commerce" so as to bring him within the wage and hour provisions of said Fair Labor Standards Act.
Neither does it appear as a matter of law that the work of the plaintiff was such as to exempt him from the wage and hour provisions of said act under § 213 (b) (1) of 29 U.S.C.A., which provides: "The provisions of § 207 of this Title shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of § 304 of Title 49 of the U.S.C.A." See Colonial Stores v. Harris, 69 Ga. App. 476 ( 26 S.E.2d 144), holding that in order for the employee not to come under said act, it is not necessary that the Interstate Commerce Commission shall actually undertake the regulation of his employment, but it is sufficient if he falls within the class over which that body has been invested with the power to control and regulate. See Southland Gasoline Co. v. Bayley, 319 U.S. 44, 48 ( 63 Sup. Ct. 917, 87 L. ed. 1244). It does not appear affirmatively from the petition, as amended, that the duties of the plaintiff with the defendants were such as to bring him within the regulatory powers of the Interstate Commerce Commission by virtue of the Motor Carriers Act, supra. Therefore, in order for the defendants to avail themselves of the defense that the plaintiff was exempt from the Wage and Hour Law by its express provisions ( 29 U.S.C.A. § 213 (b) (1)), and subject to regulation by the Interstate Commerce Commission, such defense would have to be raised by a special plea interposed by the defendants. Pyron v. Arnold, supra. In Pyron v. Arnold, this court held that "the party relying upon the general clause in said section ( 29 U.S.C.A. § 206), that `every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages', at a certain specified rate therein stated, may set out the general clause only, without noting the separate and distinct clauses which operate as exceptions, although the exceptions were created by subsequent clauses in the form of provisos, exemptions, or independent sections: The benefit of such exceptions must be taken by plea." In that case it appeared from the plaintiff's petition brought by the employee, that the defendant employers were engaged in the transportation business and engaged in commerce within said statute, and, therefore, subject to the provisions of sections 6 and 7 of said law, and that the plaintiff therein was an employee as defined in the act. The court said that it was not necessary for the plaintiff employee to allege in the petition that he did not come within the exemptions as set out in section 13 (b) (1) of said act.
It is urged that it appears from the plaintiff's petition that he drove a truck or trucks of the defendants in the delivering of such goods as they handled to places outside of Georgia, part of which came to their warehouse outside the State, and that, therefore, it appears from the petition of the plaintiff as amended, that he falls within the exemption set out in said act and is, therefore, subject to be regulated as to his hours by the Interstate Commerce Commission. We do not think the petition affirmatively shows that the plaintiff was subject to be so regulated. It was a question for the jury to decide whether the duties of the plaintiff were such as to bring him within such regulations. The question whether or not a substantial portion of the plaintiff's duties were such as to bring him within the regulatory powers of the commission was one of fact and the petition did not as a matter of law show him subject thereto. See Baret v. Koppers Co., 6 F.R.D. 465; McComb v. Del Valle, 80 F. Supp. 945; Northshore Corp. v. Barnett, 143 Fed. (2d) 172. There is nothing to the contrary in Kay v. Kuhlman, 72 Ga. App. 129 ( 33 S.E.2d 378), nor in the decisions therein referred to, to the contrary of what we now hold, which is that the petition does not affirmatively show that the plaintiff is exempted under said act and subject to the regulatory powers of the Interstate Commerce Commission, and that where a petition of an employee brought to recover overtime compensation under the Fair Labor Standards Act does not affirmatively show such fact, in order for the defendant employers to avail themselves of the exceptions provided for therein, it is necessary that a special plea setting up such facts be filed, and that no such plea was filed in this case. Therefore, plaintiff's petition, as amended, made a case for submission to a jury and it was error for the court to dismiss the same on general demurrer.
Judgment reversed. MacIntyre, P.J., and Townsend, J., concur.