2. The court did not err in overruling the defendant employer's motion for a judgment notwithstanding the verdict because the jury was authorized to find for the plaintiff for minimum and overtime wages for all but three weeks of the period of employment involved.
The court erred in overruling the employer's motion for a new trial, (a) because the evidence did not authorize a finding for the employee for three weeks when he was not engaged in commerce and, (b) because the court left the question of the amount of the attorney's fees to the jury when the Fair Labor Standards Act places this duty upon the judge of the trial court.
Jacob H. Eberhart sued Consolidated Realty Investments, Inc., under the Fair Labor Standards Act of 1938, as amended, (29 USCA, Section 216 (b)) to recover unpaid minimum wages and overtime in the amount of $2,316.28 and an equal sum as liquidated damages, and attorney's fees. The weeks and days involved were from September 7, 1960, through May 29, 1961. The petition as amended alleged that the plaintiff was employed by the defendant as a night watchman and that during every week of employment plaintiff was required to accept shipments of building materials at the site of building construction coming from North Carolina and that he was required to direct the trucks delivering the materials where to park on their arrival at the premIses. It was alleged that the plaintiff worked 7 days a week, 14 hours a day during the employment. The jury found for the plaintiff the sums sued for as unpaid minimum wages, an equal amount for liquidated damages and $5,000 attorney's fees. The exceptions by the defendant are to the overruling of its general and special demurrers, the overruling of its motions for a new trial as amended and for a judgment notwithstanding the verdict.
1. The court did not err in overruling the general and special demurrers of the defendant. The allegations are sufficient to show that the plaintiff was engaged in interstate commerce within the meaning of the Fair Labor Standards Act in that he directed the parking of trucks from another state before they came to rest within the State of Georgia. The petition also alleged that the plaintiff's duties in directing the parking of the trucks were regular and recurring during the weeks of employment involved. Contrary to many state and inferior Federal court rulings in cases where one is engaged in both intrastate and interstate commerce it is no longer necessary to show that the percentage of time devoted to interstate commerce is substantial. Engagement in interstate commerce need only be "regular and recurring." Overstreet v. North Shore Corporation, 318 U. S. 125 (63 SC 494, 87 LE 656); Mabee v. White Plains Pub. Co., 327 U. S. 178 (66 SC 511, 90 LE 607). The rule as to the determination of whether an employer is engaged in commerce would seem to apply to the question whether an employee is so engaged.
2. The court did not err in overruling the motion for a judgment notwithstanding the verdict. While the evidence was conflicting the evidence authorized the finding that the plaintiff was engaged in interstate commerce during all but three weeks of the period involved. The employer contends that the evidence does not show a "regular and recurring" engagement in interstate commerce because the employee only testified that he "signed in" from 50 to 75 truck loads. It is true that the employee so testified but what he meant was that he receipted for 50 or 75 loads for the employer. In addition, however, he testified that there were 180 truck loads which came into the premises. He further testified that trucks from North Carolina came into the lot during all but three weeks of the time involved. What he actually testified was that there were only three weeks of his employment when no trucks from North Carolina came In. This means that during the other weeks they did come in.
3. The court erred in overruling the motion for a new trial for two reasons: (a) The evidence did not authorize a finding in favor of the employee for the three weeks in which he was not engaged in interstate commerce. It was not necessary for the employer to affirmatively show this when the testimony of the employee himself showed it. (b) The second reason is that the court erred in submitting the question of the amount of attorney's fees to the jury. Under the Act the question of the amount of such fees is a function of the court and not the jury.
The jury properly found for liquidated damages in the absence of a special showing of mitigating circumstances showing good faith by the employer.
The court did not err in overruling the general and special demurrers to the petition or in overruling the motion for a judgment notwithstanding the verdict.
The court erred in overruling the motion for a new trial.
The judgment overruling the motion for a new trial is affirmed with direction that the amount found by the jury both for wages and liquidated damages for 3 weeks, or 21 days, be written off from the judgment and that the amount found by the jury for attorney's fees be written off and with the further direction that the court fix the amount of attorney's fees.
Judgments overruling the demurrers and the motion for judgment notwithstanding the verdict affirmed. Judgment overruling the motion for a new trial affirmed with direction. Eberhardt and Russell, JJ., concur.