The opinion of the court was delivered by: John E. Miller, District Judge.
On September 20, 1952, plaintiff filed his complaint in which
he alleged that the defendants, operating as a partnership, were
engaged in the manufacture and production of lumber for
interstate commerce within the meaning of the Fair Labor
Standards Act; that during the work weeks beginning October 26,
1950, and ending January 7, 1952, defendants employed twenty-five
or more persons in the production of lumber for interstate
commerce; that the Court has jurisdiction by virtue of Title
28 U.S.C. § 1337 and Title 29 U.S.C.A. § 216(b); that the defendants
employed the plaintiff to night watch and to clean up around
their mill; that during the period from October 26, 1950, to
January 7, 1952, with the exception of one week when plaintiff
was off duty, defendants employed plaintiff in their place of
business for eighty-four hours each week and paid plaintiff at
the rate of $150 per month; that plaintiff was entitled under the
Act to a rate of pay not less than seventy-five cents per hour
for the first forty hours each week, and at a rate of pay not
less than $1.12 1/2 per hour for all hours in excess of forty
each week; that plaintiff should recover from the defendants the
amount of $2724.50 for unpaid minimum wages and overtime
compensation, an additional equal amount as liquidated damages,
together with costs and a reasonable attorney's fee.
On October 9, 1952, defendants filed a motion to make more
definite and certain, to which motion the plaintiff responded on
October 14, 1952, and on October 15, 1952, the Court overruled
Thereafter, on October 29, 1952, defendants filed their answer
in which they admitted that they were operating as a partnership
and were engaged in the manufacture of lumber for interstate
commerce; that during the period from October 26, 1950, to
January 7, 1952, some twenty-five persons, more or less, were
employed by them in the processing of lumber for interstate
shipment; that the Court has jurisdiction to entertain the suit;
and that plaintiff was employed by them as a night watchman from
October 26, 1950, to January 7, 1952. But, defendants denied that
plaintiff had worked in excess of forty
hours in any work week, denied that they had failed to pay him
minimum wages required by law, and affirmatively stated that they
paid plaintiff at the rate of $150 per month.
On April 8 and 9, 1953, the case was tried to the Court without
the intervention of a jury, and at the conclusion of the trial
the Court requested counsel to furnish briefs in support of their
respective contentions. This has now been done, and, after
considering the pleadings, ore tenus testimony of the witnesses,
and briefs of the parties, the Court now makes and files its
findings of fact and conclusions of law, separately stated.
The defendants, Vernon Braughton, Harley Bates, and Raymond
Bates, operate as a partnership, and during the period from
October 26, 1950, to January 7, 1952, they were engaged in the
production of lumber for shipment in interstate commerce and
employed twenty-five or more persons, including the plaintiff, in
During the time from October 26, 1950, to January 7, 1952,
plaintiff was employed by defendants at a salary of $150 per
month. The defendants kept no record of the hours worked by
plaintiff. In following this practice defendants were acting in
good faith and in reliance upon advice given them by a
representative of the Wage and Hour Division. Although
plaintiff's salary was stated to be $150 per month, he was
actually paid $75 every two weeks.
Plaintiff was 68 years of age at the time he was employed by
defendants to night watch and to clean up their mill. He was
employed to work from 8:00 p.m. each day until 3:00 to 4:00 a.m.
the next morning, seven days a week, and was allowed an hour for
supper from 12:00 p.m. to 1:00 a.m. However, as a matter of fact
plaintiff was to a great extent his own boss as to the hours he
worked. Sometimes, especially during the winter months, he came
to work early in order to clean up the mill before dark came.
Often he would come to work as early as 5:00 p.m. At other times
he would begin at 5:30, 6:00, 7:00 and at various other times.
Usually when he came to work early, he would go home for supper
sometime between 7:00 p.m. and 11:00 p.m. Also, he would often
leave the mill at various times during the night for short
periods of time. Frequently plaintiff did not work at all because
of sickness or other reasons. At times plaintiff was seen
sleeping while he was supposed to be on duty. Plaintiff
ordinarily quit working and went home between 3:00 a.m. and 4:00
a.m. although occasionally he stayed later than 4:00 a.m.
Defendants knew that plaintiff often began working before 8:00
p.m. and made no complaint about it since plaintiff stated that
he wanted to clean the mill before dark. Plaintiff did not always
take an hour off to eat from 12:00 p.m. to 1:00 a.m., but none of
the defendants had any knowledge that he sometimes worked during
that time. Likewise, though plaintiff was at the mill later than
4:00 a.m. occasionally, defendants had no knowledge of that fact.
Defendants had knowledge of the fact that plaintiff sometimes
slept on the job, often left the mill for various periods of
time, and frequently did not come to work at all. Nevertheless,
defendants did not discharge him, partly because they felt sorry
for him and partly because they did not want to antagonize
plaintiff's brother who also worked for them and who is and was
an excellent worker. However, defendants did "dock" plaintiff a
few nights pay for not coming to work.
In January, 1951, plaintiff was off for two weeks and was not
paid for this period. Also, at other times he was docked a day or
two at a time totaling about seven days. Thus, during the 62
weeks from October 26, 1950, to January 7, 1952, plaintiff was
paid $37.50 per week for 59 weeks, a total of $2,212.50.
A consideration of all the testimony convinces the Court that
plaintiff was employed by defendants and worked seven hours a
night, seven days a week, ...