36 S.E.2d 69 | Ga. Ct. App. | 1945
1. Under the facts of this case the plaintiff was not a laborer within the meaning of the act contained in 40 U.S.C.A., §§ 324, 325, 325-a, 326, and of executive order number 9240.
2. (a) Where the evidence does not sustain the allegations of the petition, a nonsuit is proper.
(b) The plaintiff under his express contract was not entitled to receive more than $25 per week for seven-days' work of twelve hours each day, and the record does not support an implied contract to the contrary.
The second count was added by amendment, and as originally filed is identical with the first count except that no reference was made to the acts of Congress or Federal Law. The second count simply alleged that the plaintiff was paid only for forty-seven hours each week at the rate of fifty cents per hour, whereas he worked eighty-four hours each week, and for the remaining hours he was entitled to seventy-five cents per hour for the overtime. By further amendment an additional paragraph was added to count 2 as follows: "Petitioner shows that under his contract of employment with defendant he was to work seven days in each week, and a period of twelve hours each day, and a total of eighty-four *173 hours each week, and he was to be paid therefore fifty cents an hour for the first forty hours of each week, and seventy-five cents an hour for all hours worked over and above forty hours."
The defendant filed a demurrer to the petition and also an answer denying all the material allegations of the petition.
The plaintiff closed his testimony. The defendant introduced no testimony, but made a motion for a nonsuit, which the court sustained. Error is assigned on this judgment.
The plaintiff testified: that he was employed by the defendant, at what was generally known as Russell Field, which was being constructed at Rome, Georgia; and he made a contract or agreement with Mr. Wingo, the superintendent; that his contract stated that he was to be paid $25 per week straight time, and that he was to work seven days each week for twelve hours each day; that he was hired to work under Mr. Wingo, and that he worked from six o'clock p. m. to 6 o'clock a. m. each day of each week; that he was employed as a night watchman; that "the only thing I did out there was what Mr. Wingo hired me to do; that he hired me for a watchman and to keep a record of all the gasoline and look after that and to do whatever I was asked to do as far as I could, and I done so." The particular duties which the plaintiff particularized that he did were night-watching and in connection therewith servicing the trucks and machines with gasoline; that he was in charge of the storage house and would direct distribution of parts when needed; that there was no other person authorized to do this work except the plaintiff; that from the time the plaintiff went to work at 6 p. m. until 2 a. m. (when the construction work ceased), he spent approximately 45 minutes per hour in servicing trucks and machines and directing the distribution of parts; that from 2 a. m. to 6 a. m. he performed no duties other than making his rounds as night-watchman. The plaintiff further testified that his duties were at the headquarters all the time that he was night-watching; that he never did go to the airport; that the house where he was working was between 300 yards and a quarter of a mile from the place where the employees of the defendant were digging and grading for the airport; that there a large number of employees were on the grounds digging and grading for the airport; and that at the headquarters where the plaintiff worked about $250,000 worth of property was located. *174
The plaintiff introduced certain portions of the contract between the United States Government and the defendant. These portions, after stating the nature of the work, etc., had this provision (in conformance with the Federal statute contained in 40 U.S.C.A., §§ 276, 276 a-1): "(a) The contractor or his subcontractor shall pay all mechanics and laborers employeddirectly upon the site of work . . wage rates not less than those stated in the specification, regardless of any contractual relationship which . . exists between the contractor or subcontractor and such laborers and mechanics." The minimum wages specified for laborers was not less than forty cents per hour.
The plaintiff received pay for each week while employed by the defendant. A ticket or pay slip from the defendant which accompanied each payment was also received by the plaintiff, which he introduced. Practically all of them are identical and we set forth a copy of one which is illustrative of all:
Period ending Regular hours Regular rate Overtime hours
9-4-43 40 .50 7
Overtime rate Total earned FC SI Victory tax Net pay
.75 25.25 .25 .70 24.30
The plaintiff received the amount shown in the extreme righthand column. On cross-examination as to this pay slip, he testified that he received his pay check for $25.25, and "I never mentioned to anybody about that check being for a different amount than what I had traded for. I think I testified before the commissioner that I did say something to Mr. Wingo. I called Mr. Wingo's attention to it, and he said `I guess they know what they are doing down there.' " The plaintiff received the money and made no demand on the defendant for the amount sued for until his suit was entered.
The plaintiff introduced the superintendent of public works of Floyd County, who testified substantially that the witness had no connection with the defendant's business; that he had occasion to go to the vicinity of the airport site; that Floyd County purchased the property on which the airport was constructed, as well as the property on which the headquarters of the defendant were located; that the United States Government leased the portion of the tract on which the airport was being constructed, but did not lease the portion of the tract on which the headquarters were located; *175 that the portion of the tract on which the plaintiff was working was leased to Mr. Florence on the basis of $400 per month; that it was a part of the property of the county, but not part of the airport property; that the county purchased all of the property before any of it was leased; that thereafter the Government took a piece of it for an airport, and the other was left outside. 1. If it may be conceded that the plaintiff was a laborer within the meaning of the act in question, and was thereby entitled to the specifications of wages for overtime and Sundays, still he would not be entitled to recover under count 1 of this petition for the reason that he did not bring himself under the provisions of the act (40 U.S.C.A., §§ 276, 276 a-1), as contained in the contract under article 17, section a, as follows: "All mechanics and laborers employed directly upon the site of the work." The evidence shows that the plaintiff worked on a different site from 300 yards to a quarter of a mile from the site of the airport. The court did not err in granting a nonsuit as to count 1.
2. (a) Let us then inquire whether the plaintiff was entitled to recover under count 2 of his petition. It will be noted that the amendment to this count states that under the plaintiff's contract of employment he was to work seven days in each week and twelve hours each day and was to be paid therefore 50 cents per hour for the first forty hours of each week and seventy-five cents per hour for all hours of work over and above the forty hours. The evidence of the plaintiff does not sustain such a contention. He testified: "I made my contract or agreement with Mr. Wingo, the superintendent. My contract with Mr. Wingo was that I was to be paid $25 per week straight time. I was to work seven days each week." The plaintiff further testified: "I hired to Mr. Wingo and worked under him. My contract with Mr. Wingo was for $25 per week, and I was to work twelve hours each night." Again, he testified: "As to whether or not I ever complained about getting more money than I hired for, I never did say anything about it. As to whether I ever made but the one contract with Mr. Wingo or anybody else, well, that was all that was necessary." The plaintiff also testified: "I was *176
supposed to have been on a salary. I was hired on a straight salary, but he paid me on an hour basis on my pay check. As to whether or not I made any complaint to anybody there about the work I did where I worked, or the amount I was paid, up until I filed this suit — well, I had no complaint to make, because I knew what my job was, what I was hired under, and how they were paying me." The plaintiff thus makes it clear in his testimony that his contract of employment was not such a contract as he alleged in the amendment to count 2 of his petition. Therefore he did not prove his contract as alleged. The allegata and probata do not agree. This being true, he is not entitled to recover under this count. In Williams v. Western Atlantic Ry. Co.,
But the plaintiff contends that, since the defendant paid him in accordance with his pay slip fifty cents per hour for less hours than he actually worked, he should be entitled to recover at the rate of fifty cents per hour for the hours he worked in excess of the hours shown on the pay slip. We are unable to agree with this contention that a mere matter of bookkeeping, where the system shows a certain number of days worked at fifty cents per hour and certain overtime pay of seventy-five cents per hour, with deductions for security and victory tax, would be sufficient to carry the case of the plaintiff to a jury. The plaintiff contends that this contention of his is further fortified by the fact that he received more than his contract price of $25 — that is, he received $25.25 per week. The Supreme Court said inWillingham Sash Door Co. v. Drew,
(b) We deem it pertinent also to call attention to another phase of the case which might be considered as to the first count as well as the second. That phase is this: The plaintiff received the $25.25 without any complaint whatsoever until he filed suit against the defendant. As analogous and illustrative of the law applicable to this phase of the case, we call attention to Coleman v. United States, 81 Fed. 824, wherein this was said on the subject before us: "One employed as a laborer . . of the United States, at a given monthly salary, who, without objection, works at such employment more than eight hours each day, and who, without protest, accepts the agreed monthly pay, has no right of action against the government for additional compensation for such extra hours of labor, in the absence of an express contract therefore."
In our view and for the reasons set forth for them, the plaintiff was not entitled to recover under either count of his petition, and the court did not err in granting a nonsuit for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.