Electron Corp. v. Wilkins

On Petition for Rehearing. In plaintiff's petition for rehearing his counsel urges that we have overlooked or misunderstood and wholly disregarded the decisions of the United States Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, cited in our opinion. See, also, Anderson v. Mt.Clemens Pottery Co., 69 F. Supp. 710, and 162 F.2d 200. That decision was carefully studied and fully considered, and we reached the conclusion that in the instant case the evidence supporting plaintiff's cause of action was such as to raise no "just and reasonable inference," as was said therein, that would support a judgment in his favor, and to that conclusion we still adhere.

In our opinion we stated that the decisive and determinative question upon which we based our reversal of the judgment had not been argued here by either party, although it was within the purview of one of the specifications of points. We might also have stated that while plaintiff himself was the only witness offering evidence that would bring him within the provisions of the Fair Labor Standards Act of 1938, entitling him to a judgment for overtime pay, liquidated damages and attorney fees, defendant produced six witnesses, most, if not all of whom, testified to facts which tended to establish that plaintiff was an administrative or executive employee as defined in section 13 (a) of said Act, and therefore not entitled to recover under the provisions of section 7 thereof.

Considering the conditions and circumstances disclosed by this record and in justice and fairness to the parties involved, the judgment is reversed and the cause remanded for retrial of the issues presented by the pleadings.

The petition for rehearing is denied.