27 S.E.2d 769 | Ga. Ct. App. | 1943
The court did not err in overruling the demurrers to the petition.
The defendant filed general and special demurrers to the petition. These were overruled, and the exception is to that judgment. There were 13 grounds of special demurrer. (1) Paragraph 4 of the petition was demurred to upon the ground that the petition failed to disclose what was meant by "substantially all of the material and supplies;" (2) paragraph 5 was demurred to upon the ground that it did not appear whether the beer and fruit juices purchased by defendant were delivered to defendant at its plant, nor how they were delivered; (3) paragraph 6 was demurred to upon the ground that it did not appear whether the beer and fruit juices were loaded from trucks bringing them into this State onto defendant's trucks for delivery to its customers at defendant's plant or at the railroad station, nor whether defendant owned them at the time of the unloading and reloading; (4) paragraph 7 was demurred to upon the ground that it did not appear how the empty bottles and cases were transported out of the State of Georgia, nor under what agreement they were transported; (5) paragraph 8 *147
was demurred to upon the ground that it was not shown how, nor to whom the bottles were sold, nor the terms and conditions of the sale; (6) paragraph 9 was demurred to upon the ground that it did not disclose how the defendant transported the empty bottles and cases from the State of Georgia through and into other States; (7) paragraph 10 was demurred to upon the ground that the allegations were conclusions of the pleader with no facts alleged to support same; (8) paragraph 13 was demurred to upon the ground that it did not appear how plaintiff was employed to purchase, nor how he purchased the empty beer bottles and cases, and the terms of said purchase; (9) paragraph 15 was demurred to upon the ground that it did not appear how the beer and fruit juices in the original package were loaded from trucks bringing them from other States onto trucks operated by plaintiff; (10) paragraphs 16 and 17 were demurred to upon the ground that same were conclusions of the pleader with no facts alleged to support same; (11, 12, 13) paragraphs 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29 and 30 were demurred to upon the grounds that it did not appear that the fair-labor standards act was applicable, and that the allegations were immaterial, irrelevant, and incompetent to bind defendant. "The requirement that a plaintiff shall `plainly, fully and distinctly' set forth his ground of complaint does not mean that he shall disclose the evidence on which he relies, or indulge in needless particularity, but means only that his demand shall be set forth in terms sufficiently full and distinct to enable the court to determine whether a cause of action exists, and his adversary to understand the exact nature of the claim made against him." Fuller v. Inman,
The defendant contends that the petition should have been dismissed upon the following grounds of general demurrer: (1) because it appeared from the allegations thereof that the defendant was not engaged in interstate commerce within the meaning of the fair-labor standards act of 1938; (2) because, even though the defendant might have been engaged in interstate commerce, it appeared that the plaintiff was not engaged in interstate commerce, and did not come within the scope of the Federal fair-labor standards act; (3) because it appeared that the plaintiff was a truck *148 driver engaged in a purely local or intrastate capacity, and the Federal fair-labor standards act was inapplicable under the terms of said act; (4) because it appeared from the allegations of the petition that the plaintiff was engaged in a retail and service establishment; and (5) because the petition failed to set out a cause of action.
In ground 1 of the general demurrer the defendant contended that the petition should have been dismissed because it appeared from the allegations of the petition that the defendant was not engaged in interstate commerce. The petition alleged that the defendant was a manufacturer of soft drinks and a wholesale distributor of soft drinks, beer, and fruit juices in the City of Atlanta; that substantially all of the material and supplies used in the manufacturing of the soft drinks were obtained by the defendant from sources outside of the State of Georgia and transported in interstate commerce; that the beer and fruit juices distributed by the defendant were obtained by the defendant from sources outside of the State of Georgia and transported in interstate commerce; that the beer and fruit juices sold and distributed by the defendant were loaded onto the delivery trucks of the defendant from trucks bringing them into the State of Georgia from other States; that the defendant bought and collected empty beer bottles and cases from its customers in Atlanta and vicinity and transported the empty bottles out of the State of Georgia and sold them in other States; that the defendant owned and operated trucks which it regularly and customarily used to transport beer and fruit juices from and through other States into the State of Georgia, and to transport the empty bottles and cases from the State of Georgia through and into other States; that the defendant was engaged in interstate commerce and in the production of goods for interstate commerce. "`Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof."
In ground 2, the defendant contended that the petition should have been dismissed because, even though the defendant might have been engaged in interstate commerce, it appeared that the plaintiff was not engaged in interstate commerce and did not come within the scope of the Federal fair-labor standards act. This court has held that where a petition is brought under the provisions of the Federal fair-labor standards act, it is necessary to allege that both the plaintiff (employee) and the defendant (employer) are engaged in interstate commerce, for the reason that in any given business some employees may be covered by the act while others may not, and that it is an individual matter as to the nature of the employment of the particular employee as to whether or not he is covered by the provisions of the act. Pyron v. Arnold,
In ground 3, the defendant contended that the petition should be dismissed, because it appeared that the plaintiff was a truck driver engaged in purely a local or intrastate capacity, and the Federal fair-labor standards act was inapplicable under the terms of paid act. The petition alleged that the plaintiff had duties *151 other than driving the delivery truck of the defendant, in that he had the duty of purchasing and collecting empty beer bottles and cases which were transported out of the State of Georgia by the defendant and sold in other States, and the duty of assisting in unloading trucks bringing beer and fruit juices from other States into the State of Georgia and in loading the same upon the delivery truck operated by him for the defendant. Under these allegations the plaintiff was not a truck driver engaged in purely a local or intrastate capacity, and the judge did not err in overruling ground 3 of the general demurrer.
In ground 4, the defendant contended that the petition should be dismissed because it appeared from the allegations that the plaintiff was engaged in a retail and service establishment. "The provisions of sections 206 and 207 of this title shall not apply with respect to (1) any employee employed in a . . local retailing capacity . . or (2) any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce."
In ground 5, the defendant contended that the petition failed to set out a cause of action. The substance of the petition was that both the plaintiff and the defendant were engaged in interstate commerce, and that the defendant was obligated to pay the plaintiff the minimum wages and overtime compensation provided by the Federal fair-labor standards act of 1938 (
Judgment affirmed. Stephens, P. J., and Felton, J., concur.