Johnson v. Dierks Lumber & Coal Co.

115 pages 543, Congress.5 tion wold, We Gris- 22(a), so hold. See 26 or under U.S. § Summary Int.Rev.Acts, 669, Regulations 487, pages “A of the in cases C.A. 1, Problem”, 398, Willcuts, 1935, 54 404-411 Douglas like Harv.L.Rev. 296 U.S. v. Griswold, (1941); “Postscriptum”, 391, id. 59, 3, 101 A.L.R. S.Ct. 80 L.Ed. p. Clifford, 1940, 1323. Helvering v. 84 L.Ed. 788. argument accepted If the grantor of revocable is taxable trust Court judgments District com- vacated, income the trust net remanded to cases are puted provided in 162 the basis in- proceedings court for further § unit, separate then a trust is a taxable opinion. consistent follow, respect consequence would in contributions, for charitable deduction hardly have been intended Con- could income, Suppose gress. all of the trust expenses, ap- payment of after pro- purposes. By the plied for charitable all charitable 162(a), of such vision § com- :be in would deducted contributions et trust, so that JOHNSON LUMBER & DIERKS income of al. the net puting COAL CO. nothing left on which there may doubt grantor would be taxable. One 12224. No. trust grantor of revocable whether Appeals, Eighth Court of Circuit provision (n) escape the could thus § 26 U.S. July 181-182, Act, 47 Stat. 1942. Int.Rev.Acts, page 23(o) 491 or A.C. § Act, 690, 26 U.S.C.A. 48 Stat. the 1934 of Int.Rev.Acts, limiting indi- page contribu- for charitable deduction vidual taxpayer’s income. net tions to 15% 1932, 25 Commissioner, Drexler v. See B.T.A. 79. It somewhat surprising such a dearth decided cases on the

point. Coursey Commissioner, B.T.A. relied on tax- payers, question did not involve a of deduc- tions, possibly is distinguishable. We accept cannot its reasoning, which is incon- sistent with conclusion we have reached. Cf. Silverthau v. United C.Conn., 1938, F.Supp.

D. 242. our confine We decision to revocable covered 166. There

trusts is no oc- to consider rule casion the same whether grantor applies of a trust is taxa- Int.Rev.Acts, 167, 26 U.S.C.A. ble under § taxpayers income,gains, Sen.Rep. Cong., Sess., returned 68th No. 1st relating p. losses from or posited so de- though pending, no trust existed there the 1926 When * * * Sen considerable discussion policy department, status of trusts. revocable “It was ate ours], now the law stated on the floor of Senator Willis [italics a revocable trust should Senate: be treated for April department just “Up purposes until of 1923 the income-tax as if no trust always existed; say, person ruled and in- had who of a revocable trust should be in- the trust come made account gross grantor cluded income of the income his income-tax return. That trust, being ruling department revocable, such a and that was the for a disregarded years pur- provi- for income-tax should be it is now a recognized Cong.Ree. poses. It was that such was a sion of law.” 67 way handling situation, fair respectively grease camps pleads assigned stay. The defendant agreed it was Cazort, Rock, Jr., Ark. of Little Lee per but that require less six than Cobb, Rock, Ark., (Osro of Little six paid basis of on they should be the appellants. brief), for per much be hours “whether Whittaker, City, Mo. Chas. of Kansas E. Prior October not.” Wootton, (Scott both of Wood E. H. and cents pay was 35 regular of rate Henry and Springs, Ark., Ess Hot and N. an hour. cents hour thereafter and Whittaker, Groner, Watson, Ess, & Barnett employed Veazey October was Mo., brief), for City, on Kansas the of for cents an hour a corral tender at appellee. mules for days He cared seven a week. SANBORN, prevent van- STONE, and Before and as watchman acted THOMAS, Judges. camp. Circuit dalism at the compensation and at one claimed Johnson THOMAS, Judge. 1,883 regular for pay times his one-half January appeal by plaintiffs July, from This is from a hours overtime by $1,013.19, for judgment of on a verdict directed in the sum entered damages. liquidated upon equal suit the court its own motion. The amount as period by practically brought Johnson, the same Gunter Gunter for overtime, Veazey, which he employees 3,136 for three of the defendant claimed Company, one-half compensation Lumber Dierks and Coal asked at one unpaid compensation cover of regular wages overtime in the amount times his equal li- $1,688.64, sum as liquidated damages and for an 16(b) under quidated Veazey claimed com- damages. Fair Labor Standards Stat. of 2,475 the pensation hours overtime 216(b). 29 U.S.C.A. § $1,212.75, and same basis in amount of the corporation The defendant is a Delaware plaintiffs liquidated damages. The engaged owning timber land in the state attorney fees. for costs asked of Arkansas and in the manufacture and production lumber, part of a substantial The defendant denied transported of which is sold and in inter- any overtime. state production commerce. In the of appeared course trial it the lumber operates large the defendant April 4, 1941, after the commencement trucks, tractors, bulldozers, of road suit, paid of this the defendant had John- graders, camps large at some uses a compensation son for admitted $16.65 equipment of mules. The is moved performed subsequent overtime work place place from in the con- forest as October for the necessity may require venience or and is same reason the sum of $22.20. kept varying distances the from central plaintiffs’ At conclusion of camp. places equipment where such own on its motion directed a ver- kept “grease are and serviced called against Veazey, but dict in favor of Gunter camps” Supplies gasoline, or “corrals”. in favor $22.20 oil, Johnson tools, grease, feed and accessories are Judgment accordingly. was entered $16.65. kept camps. employees using, at such judgments awarded and Gun- Johnson operating, maintaining caring for the liquidated damages upon ter were for' based equipment crews, work in each of which is compensation for overtime ad- under the supervision direction and of a paid by April mitted and defendant on Employees foreman. “grease called men” 4, 1941. On basis of this award counsel and “corral custody tenders” are in attorney were allowed an fee equipment grease camps and corrals in the sum of $100. provided live by in trailers employees defendant. The Since the defendant did not other move for trans- ported daily ruling we must look to camp from central directed verdict to the grease camps grounds court for a corrals in fur- trucks by verdicts nished which were directed. The defendant. assigned by the court may reasons be sum- July, 1940, employed defendant marized as follows: grease and Gunter as duty grease evidence as to the men. Their was to 1. The amount of service - plaintiff keep each trucks and tractors and to watch overtime worked seven days equipment upon conjecture a week estimates with- over all based part upon ruling upon as to knowledge its disbelief testi- any out Johnson’s actually mony upon the statements on week- the amount ly slips used defendant subse- worked. quent By same December return verdict If the alleged rule of law duty of defendant to been made with each because of un- set be to it aside effect the number testimony support certainty of the ex- should not worked each the claims. avail, provided ceed six evi- is of no evi- 3. introduced Plaintiff Johnson actually dence shows that claimed dence a record of the worked 29 day. more than six hours a by reference him. have been worked 203(g). U.S.C.A. § said, “An examina- to this the court exhibit In view of claims he show that one tion will of the record grounds hours twenty directing a verdict was worked much if just jury Now, the court should return day, days. a verdict some a men do court would it reasonable set believe that doesn’t aside, time complaint at be observed that making a trial without some may court except not direct a doing verdict it.” are upon no jury evidence which a could examination of 4. cross On Johnson properly proceed to party Fant, one for the find in evi- introduced defendant Gunter the producing the evidence. Pleasants v. beginning weekly statements dence time 116, 22 Wall. 89 22 U.S. L.Ed. 7, 1940. ending December week with the 780; Co., Slocum v. New Life York Ins. by prepared These statements Johnson 523, 228 U.S. 33 57 L.Ed. S.Ct. signed by them. Gunter’s foremen and 879, Ann.Cas.1914D, Gunning 1029. v. employee signature Above Cooley, 90, 231, 281 U.S. 50 S.Ct. 74 L.Ed. hereby statement, “I printed state any 720. The trial court should not here- shown hours I number worked instance direct a verdict there is sub The -.” ending during the week one, support stantial evidence even not hours show than 40 statements did not more ground contrary if verdict a any one week. worked its rendered the would in sound binding slips a constituted that these time grant discretion set aside such verdict and parties, so between Louisiana A. a Ry. v. & trial. Howard would circumstances “under no Johnson Co., 571; Cir., F.2d v. 49 Slocum 5 any over- recover and Gunter able to Co., supra; Reid v. New York Life Ins. 7, December 1940.” time since 10, Co., Cir., Maryland 5 63 F.2d Casualty considering whether the court p. 12; Simkins, Practice, 626(6), Federal § directing erred in a verdict the defend 478. any assigned ant for all reasons important question be de it, by this court must that view of the take termined is whether evidence plaintiffs. evidence most favorable to the number hours of overtime claimed to credibility the witnesses have been worked is too weight of the evidence matters for the are support plain a verdict indefinite tiffs, Ameri not court. Coen v. any or for of them. In an action Co., 397; Cir., 393, Surety can 8 120 F.2d unpaid compensation liquidated dam Hughes, R. v. 278 Western & Atlantic R. brought ages under the Fair Labor Stand 498, 231, 496, L.Ed. 473. U.S. 49 S.Ct. 73 1938, seq., U.S.C.A. ards 29 201 et employers Contracts between plaintiff upon to establish the burden prohibited employees subject to the act and preponderance of the evidence the a provisions or inconsistent its hours and the amount binding upon employees. illegal, and not due; wages sustain and the evidence to Inc., Transportation Co., Motor Overnight must definite certain. this burden Missel, -; 62 S.Ct. 86 v. L.Ed. Redfern, Cir., 124 F.2d 5 Beer Jax Warshawsky Co., Cir., Fleming v. & Green, 92 v. U.S. Carrol Cf. 622; Carleton Screw F.2d Products v.Co. 738; Stockwell 509, 513, 23 L.Ed. Cir., 541; Fleming, 8 126 F.2d United 531, 80 U.S. United Wall. Morley ex rel. States Construc- 491; Johnson States v. Cham United 542, 20 L.Ed. Cir., Co., 2 98 F.2d 781. tion berlin, Bag Paper & Union Gale v. principles L.Ed. Under these settled 116 F.2d Corp., 5 in so the court erred far as it its law based An, engaged in actual the testi were thus examination of day day, de- mony is abundant manual labor varied from convincing that there finding pending upon conditions. supported weather and other to have day eight o’clock actually During over from seven or each by in in the afternoon morning until three a considerable regular liberty measured. was at their labor be whatever standard Johnson days. present all the required to Further, he worked He was testified that night. day period remaining during the day regularly 16 hours a they were Veazey testified that 24 hours under consideration days camps to respective holidays on all to be at Sundays and guard chores and to care for his care certain equipment under when the Veazey night and that both Gunter and in the woods. use them foremen told they each worked testified .they themselves bookkeeper discharged calculated if absented day. Defendant’s camp. worked from hours overtime the number of theory of upon plaintiffs’ Veazey based prob- entering the A into further factor simi He made showed. evidence what the that the shows lem is that the evidence of the number showing lar calculations premises plaintiffs slept in trailers If and by Gunter hours Johnson. eight or of each average of nine theory the of all, upon plaintiffs’ this were wrong hours, except something went when the clearly question was a issues there to necessary for them night rendering at it directing a ver erred in jury, and the property com- get up and take care of the Railway defendant. Southern dict charge. their mitted to A Black, 127 F.2d answer A inference from defendant’s fair labeled not be testimony should plaintiff’s contemplated contends that is that it only for the reason uncertain indefinite and plaintiffs paid only for the num- should be than the for more claim supports a that it actual manual ber of hours devoted to they may show evidence preponderance of the necessarily labor, and that since the Moreover, recover. to him be entitled to day the contract from varied to may different draw men reasonable is valid average six hours a of evidence, the from the inferences adopted this apparently binding. The which jury province the to determine of view, failed believing the evidence proper. of definitely actual show the to the plaintiffs from worked overtime difficulty case arises thus in this hours the by the tc/ indefinite interpretations attributed held evidence be too different the to labor” expression “hours of parties a case. jury make the law and of meaning within the the of on the other hand contend day that employment. Each contracts of employment their as watchmen entitles of by the terms required plaintiffs were compensation them to they for all the hours camp may be employment be at their to required present were camp at to parts: (1) the hours in two considered charged responsibility caring they engaged in manual were during which protecting for and to intrusted their sole labor, (2) hours when custody, during their which time agreed watchmen. It was to act as duty liberty go at not to where or a employed to do plaintiffs were they pleased. what in ad- labor and manual certain amount of held If it be entitled pre- as watchmen to thereto to act dition compensation only to number of camps. They vandalism rose vent performed by them, hours of manual labor early morning began to work at relating to then the number making ready five o’clock the ma- four or overtime worked is hours of indefinite operators mules for chinery or the hand, On the if uncertain. other approximately when arrived at drivers manual labor should be added the there equipment After was seven o’clock. to remain at camp three o’clock returned to at about places duty as caretakers and afternoon, later, plaintiffs took watchmen, sufficiently then the evidence is manually charge until it was all require certain to the issues to definite and This was finished serviced. at dif- jury. be submitted eight times from seven or o’clock ferent Upon present late as eleven record it can until sometimes o’clock at plain- night. during The number of hours which not matter of law that a trial, to make it seems to me advisable compensation tiffs can be allowed may help- its an additional which manual labor. the hours devoted to judge ful various to the trial on retrial. answer defendant enumerated plaintiffs separately; duties of testimony plaintiffs (at From keep added, “and to case appeal) trial from from the which this prevent general watch such trucks over arguments appeal, on this it would seem alleged that vandalism It is thereto.” also controversy large in this issue fact night employed greaser he was “as is as to the of overtime which can amount watchman.” The answer declares allowed to the several con- employed perform certain caretakers or nection with their duties as keep enumerated tasks general “and to here shows watchmen. The evidence watch over night pre- said machinery this plaintiffs slept premises and that Veazey, vent vandalism thereto.” As sleep average eight or nine employed answer states he was look wrong except something night, went when keep after general mules “and to watch over necessitating getting up to care night them Sundays holidays and on property. claims of being worked.” the case sleep- plaintiffs were cover this time when plaintiffs, enumerating each of the and, after employment ing being duties, their several the answer adds therefore, payment. subject statement, “which anomalous was taken from Since case quired per day.” than less six hours Such plaintiffs, at the close of the evidence apparently only to can refer anticipate we what the evidence cannot necessary per- the hours estimated to be defendant, retrial, will be as on form the manual included in du- tasks by each of performed duties and the work ties act enumerated. not think the We do of caretaker capacity employer may means that an claim all of However, be reason- we can or watchman. employee’s compensate him for time and evidence, re- ably the entire sure only part pay An it. what trial, picture of give jury a will only part an em- the hours which what were and employment such ployee serve is invalid. The rul- performance thereof. was done in purposes Congress enacting the stat- charge ings in the evidence and Mis- ute cannot be thus frustrated. See judge trial trial, may useful souri, Ry. T. United K. & of this the view parties and to the 144; 26, 58 L.Ed. sleeping such time of whether as to Co., Ry. Chicago, I. v. United R. & P. employment regarded 555; Ray, States, Cir., 253 F. Travis v. therefore, and, subject overtime. 8; Pac. D.C.Ky., F.Supp. Northern opinion give separate is to purpose States, Cir., 220 F. Ry. Co. United My matter. view my views to this own Co., Pac. v. Southern United States plaintiffs could the time these 245 F. as hours of not to treated sleeping directing The court erred in a verdict shown situation employment in the factual plaintiff’s at that, the close of evidence. mean I do not record. present in this circumstances, every under all case nor Complaint is made also of the al from em- be excluded sleeping hours should attorney’s lowance of fee of $100 they should or ployment hours. Whether plaintiffs’ attorneys. Since the case depend upon factual situation not must again, part tried judg must be appears. such hours case as it That of each fixing ment such fee should be vacated under certain fact situa- may be excluded allowance or disallowance of at Muldowney (see novel idea not a tions is torney’s fee should be determined Co., D.C., F.Supp. Seaberg Elevator trial. conclusion Interpretative Bulletin No. appealed judgment from is reversed Labor, Wage Flour 13, Department remanded, and the case is with instructions Division, paragraphs 7). Nor grant a trial. plain- the time when I mean to exclude night might to care be aroused tiffs STONE, Judge (concurring). property. solely I cover the time when sleeping opinion have been I in the excellent were or could concur night Judge be a THOMAS. Since

Case Details

Case Name: Johnson v. Dierks Lumber & Coal Co.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 23, 1942

Citation: 130 F.2d 115

Docket Number: 12224

Court Abbreviation: 8th Cir.