Pyron v. Arnold , 67 Ga. App. 742 ( 1942 )

1. U.S.C.A. Title 29, § 206, which is codified as part of the act of Congress known as the fair labor standards act of 1938, contained, first, a general clause; and afterward this act of Congress contained separate and distinct sections which had the effect of taking out of the general clause something which would otherwise be in it. As it relates to the employers referred to in § 206, the party relying upon the general clause in said section 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 provisions, exemptions, or independent sections. The benefit of such exceptions must be taken by plea.

2. Some employees in any given business or enterprise may be covered by the fair labor standards act while others may not. Thus it is an individual matter as to the nature of the employment of the particular employee.

3. Since it is the theory of the plaintiff that the cause of action exists by virtue of the provisions of § 206 and § 207 of the fair labor standards act, it is necessary that the petition state that the plaintiff (employee) as well as the defendant (employer) be engaged in interstate commerce.

4. The judgment of the court overruling the general demurrer to the declaration is reversed, and direction is given that the plaintiff have the right to offer an amendment to the declaration at any time before the order is passed making the judgment of this court the judgment of the trial court.

DECIDED JULY 30, 1942. The petition as amended was brought by Herman L. Arnold complaining of E. B. Pyron and C. R. Pyron, individually, and trading as Walnut Transfer Storage Company, the material parts of the petition being as follows: "2. That the defendants are engaged in the transportation business and as such are subject to the provisions of the fair labor standards act (wage-and-hour law) passed by Congress and approved by the President of the United States on June 25, 1938, and are engaged in commerce within the meaning of said statute, and as such are subject to the provisions of sections 206, 207 of said act relative to minimum wages and maximum hours. 3. That petitioner has heretofore been an employee of said defendants within the meaning of the term ``employee' as defined in said act, and since June 25, 1938, and until March 7, 1941, as to Herman L. Arnold when he left the employment of said employers. 4. Under the terms of said fair labor standards act the said employer was required to pay the petitioner during the first year of the operation of said act the sum of twenty-five ($.25) cents per hour as a minimum wage and thereafter the sum of thirty ($.30) cents per hour as a minimum wage, and was further required not to work this petitioner longer than 44 hours per week during the first year from the effective date of said statute, and thereafter for a period of the next twelve months no greater period than 42 hours per week, and thereafter 40 hours per week during the first year from the effective date of said statute, and thereafter for a period of the next twelve months no greater period than 42 hours per week, and thereafter 40 hours per week, without paying the petitioner compensation based upon one and one-half (1 1/2) times the regular rate of compensation. 5. During said period, to wit, from June 25, 1938, the petitioner H. L. Arnold was paid $18 per week for a week of not less than 60 hours during all of said period, in violation of said act. 6. By reason of the foregoing facts and the payment of salary as set forth in the preceding paragraph, the defendants, in accordance with said act are indebted to the plaintiff, Herman L. Arnold, in the sum of $373.20 as unpaid minimum wages. 7. The act above referred to provides among other things, in an action to collect unpaid minimum wages the plaintiff may recover in addition to said unpaid wages an additional equal amount as liquidated damages, and may also recover reasonable attorney's fees, and petitioner brings this suit for the collection of said unpaid minimum wages and an additional equal amount as liquidated damages and for reasonable attorney's fees. 8. Petitioner shows that the sum of $250 is reasonable attorney's fees. 9. Plaintiff brings this action in behalf of himself and all other employees similarly situated." The defendants demurred generally to the petition, which demurrer was overruled and they excepted.

The plaintiffs in error contend that the action should have been dismissed for two reasons: first, "that the petition filed by the defendant in error [does not] ``affirmatively and distinctly' show a fact, necessary to be shown, for the provisions of the fair labor standards act to be applicable, and that is, that the defendant in error, under his employment with the plaintiffs in error, was engaged in interstate commerce, or in the production of goods for commerce and that he is not within those exempted from the act;" and they contend that "an employer may be engaged in interstate commerce generally but some of the activities of such employer may be so segregated from the other activities and be of such a nature as not to fall within the regulatory provisions of the Federal fair labor standards act; or some of the employees may be engaged in an activity segregated from the general business that would be subject to other regulations; for instance, transportation in interstate commerce, which is governed by the Interstate Commerce Commission. Also, an employer may have some employees engaged in interstate commerce who are exempted under the provisions of the act itself. Therefore, it is seen that it is not sufficient to show in a petition that the employer is in interstate commerce, . . but it is necessary that the complaint brought under the act to recover the wages and penalties therein provided allege that the complaining employee be engaged in commerce, as defined in the act, or in the production of goods for commerce, and a petition which does not do so does not allege a cause of action under the act. Baggett v. Henry Fischer Packing Co., 37 F. Supp. 670. In Berger v. Clouser,36 F. Supp. 168, it was ruled that ``In an action under Fair Labor Standards Act plaintiffs must show that they as employees were within the scope of the act.'" As to the other contention the plaintiffs in error state: "The second reason urged by plaintiffs in error why the petition failed to allege a cause of action entitling the defendant in error to recover of them under the wage-and-hour law is that it appeared from the petition that they were engaged in the transportation business in interstate commerce, and that the defendant in error was employed by the plaintiffs in error, presumably, though it is not so alleged, as an employee of the plaintiffs in error in such interstate transportation, and therefore the hour provisions of said act have no application to the employment of the defendant in error by these plaintiffs in error." U.S.C.A. title 29, § 206, headed "Minimumwages; effective date," provides: "(a) 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, . ." and fixes, as wages, minimum rates which are to be paid employees and which are to become effective on certain dates. § 207 is headed, "Maximum hours," and provides: "(a) 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," and then fixes certain minimum hours of employment per week under varying circumstances. § 213 is headed, "Exemptions," and provides: "(a) The provisions of sections 206 and 207 shall not apply with respect to . . ;" and then recites eleven classes of employees to which they do not apply, and then provides: "(b) The provisions of section 207 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 section 304 of title 49; or (2) any employee of an employer subject to the provisions of sections 1-27 of title 49." It then provides: "(c) The provisions of section 212 relating to child labor shall not apply with respect to any employee employed in agriculture," etc. The substance of the petition is that plaintiff was an employee of an employer engaged in commerce within the meaning of the fair labor standards act of 1938, and under sections 206 and 207 of said act the employer was required to pay minimum wages as set forth. The wages actually paid were materially less than provided by the act, and the prayer is for a recovery of the amount of the deficiency together with a like amount as penalty and an additional sum as attorney's fees.

Where there is "a general clause embracing a complete definition of the offense, a description of the offense according to that clause would be sufficient, even although exceptions were created by subsequent clauses, in the form of provisos or independent sections. In such a case, the benefit of the exceptions must be taken by plea." Elkins v. State, 13 Ga. 435,439. Where a general clause in a statute provides in general terms that the commission of a given act by a person shall constitute a violation of the provisions of the statute, and then provides that the law thus framed shall not apply to a given class of persons, it is not necessary that a petition based on the general clause should aver that the accused does not belong to the class of persons thus excepted from the operation of the law. Kitchens v. State, 116 Ga. 847 (43 S.E. 256).

Thus we have in U.S.C.A. § 206, supra, a complete prohibition for any one who is an employer engaged in "commerce," as that word is defined in the act, to do certain acts. This general clause in § 206 is applicable to all persons. Here the statute provides that it is a violation thereof for any employer to do certain acts, and then, in subsequent independent sections of the act, there are provisions that the statute shall not apply to that class of employees referred to in these subsequent sections. Kitchens v. State. supra. It is not necessary to state in the petition that the plaintiff does not come within the exceptions. 2 Bishop's Crim. Law, 2 ed., 497, 498, §§ 638, 639;International Harvester Co. v. Morgan, 19 Ga. App. 716, 721 (92 S.E. 35).

We think that U.S.C.A. title 29, § 206, which is codified as part of the act of Congress known as the fair labor standards act of 1938, contained in it, first, a general clause, and afterward this act contained separate and distinct sections which had the effect of taking out of the general clause something which would otherwise be in it. As it relates to the employers referred to in § 206, the party relying on the general clause in said section 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 contained in the act. It was not necessary, in the petition, to negative the exceptions which were created by subsequent clauses in the form of provisos, exemptions, or independent sections. Vavasourv. Ormrod, 6 Barb. C. 430 (108 Eng. Rep. 509); Cook v.State, 26 Ga. 593 (7), 605; Hicks v. State, 108 Ga. 749 (32 S.E. 665). The benefit of such exceptions must be taken by plea.

We think that the coverage as described in §§ 206, 207 of the fair labor standards act as related to the present petition does not deal in a blanket way with industries as a whole. Thus, in § 206 it is provided that every employer shall pay the statutory minimum wage to "each of his employees who is engaged in commerce." It thus becomes an individual matter as to the nature of the employer of the particular employee. Some employers in a given industry may not be subject to the act at all; other employers in the industry may be subject to the act in respect to some of their employees, and not others; still other employers in the industry may be subject to the act in respect to all of their employees, except those specifically exempted. Foster v. National Biscuit Co., 31 F. Supp. 552, 553; Gates v. Graham Ice Cream Co., 31 F. Supp. 854; Bagby v. Cleveland Wrecking Co., 28 F. Supp. 271; Baggett v. Henry Fischer Packing Co.,37 F. Supp. 670; Berger v. Clouser, 36 F. Supp. 168; Fleming v. Arsenal Bldg. Cor., 38 F. Supp. 207, 212.

For the purposes of the fair labor standards act "commerce" is defined as meaning "trade, commerce, transmission, or communication among the several States or from any State to any place outside thereof." U.S.C.A. § 203 (b). The "``employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or any political division of a State, or any labor organization (other than when acting as an employer), or any one acting in the capacity of officer or agent of such labor organization." U.S.C.A. § 203 (d). Employee "means any individual employed by an employer." U.S.C.A. § 203 (e).

It is not sufficient to only allege that the defendants were "engaged in [interstate] commerce," but the petition, in order to constitute a cause of action in either the Federal or the State court under the fair labor standards act of 1938, must allege that the plaintiff was an employee of the defendants, and that the employee was engaged in commerce; and "commerce" as it relates to the theory of the plaintiff's petition is defined by the act as meaning transportation "among the several States" (interstate commerce).

The judgment overruling the general demurrer to the declaration is reversed; and direction is given that the plaintiff have the right to offer an amendment to the declaration at any time before the order is passed making the judgment of this court the judgment of the trial court.

Judgment reversed, with direction. Broyles, C. J., andGardner, J., concur.