Desender v. De Meulenaere

12 Mich. App. 634 (1968) 163 N.W.2d 464

DESENDER
v.
DE MEULENAERE.

Docket Nos. 1,803, 1,804 and 1,805.

Michigan Court of Appeals.

Decided August 26, 1968.

George W. Tobias, for plaintiffs.

Okrent, Baun & Vulpe, for defendant.

T.G. KAVANAGH, P.J.

This appeal is from the common pleas court for the city of Detroit which granted an award of overtime compensation under the fair labor standards act of 1938,^[1] and includes a cross-appeal testing the adequacy of the attorney's fees which that court awarded.

The plaintiffs were employed by the defendant and her late husband in the paving and repair of certain streets in the cities of Grosse Pointe and Grosse Pointe Farms, Michigan.

Their claim for overtime was asserted on the theory that their work was performed on a facility or instrumentality of interstate commerce. It was defended on the theory that the streets upon which they worked were not an interstate commerce facility and hence their work was exempt as a local activity.

The question stated on appeal is:

"Were plaintiffs engaged in interstate commerce within the meaning of the terms of the fair labor standards act of 1938 as amended to date as such act has been construed by the courts to date?"

The trial court found as a matter of fact that the roads in question were available to and regularly used by persons and articles moving in interstate commerce.

It appears that the streets are used by the United States Postal service and residents of the area going to or coming from their places of employment and their out-of-state journeys. These streets all connect with interstate highways and hence are available to persons engaged in interstate commerce or the production of goods for commerce.

Under this circumstance we find no error in the trial court's finding and affirm his judgment in this regard.

The cross-appeal questions the reasonableness of the attorney fees awarded under the act. The trial judge did not make findings of fact on this issue as required by our court rules.^[2] Counsel for the plaintiffs assert that they spent 92 hours and 20 minutes in the preparation and trial of this case. If this be the fact, an award of approximately $10 per hour does not impress us as a reasonable award in light of the minimum fees recommended by the bar association.

The cause is remanded for findings of fact and the award of a reasonable attorney fee as provided in the statute.

Plaintiffs may have their costs in this Court.

LEVIN and VANDER WAL, JJ., concurred.

NOTES

[1] 29 USCA § 201 et seq.

[2] GCR 1963, 517.1.