43 A.2d 417 | Pa. Super. Ct. | 1945
Argued April 18, 1945.
Plaintiff brought this action in assumpsit under the "Fair Labor Standards Act of 1938," 52 Stat. 1060,
Appellant in his original statement of claim averred that he "was employed by the said defendant corporation to keep in repair a fleet of motor vehicles owned by and operated by the defendant corporation for the purposes of transporting in interstate commerce milk and petroleum products," and that he "performed the service of repairing the motor vehicles owned and operated by the defendant corporation for the purpose of transporting milk and petroleum products in interstate commerce and motor vehicles operated by others engaged in the transportation of goods in interstate commerce."
Defendant filed an affidavit of defense raising questions of law. Appellant moved to amend his statement of claim by striking out the entire paragraph containing the above averments, and substituting therefor the following: "The plaintiff was employed by the said defendant corporation as a motor vehicle repair mechanic . . . and performed the services of repairing motor vehicles operated by others engaged in the transportation of goods in interstate commerce." Defendant, in its affidavit of defense, admitted that appellant was employed by it, but denied that he performed the service of repairing motor vehicles operated by others, and in further answer thereto averred that it was engaged in interstate commerce and the employment of appellant was pertaining to trucks being operated in interstate commerce and directly affected the safety of said vehicles.
Appellant, in his testimony, obviously sought to avoid the establishment of the averments in his original statement of claim, but failed to prove the averment in the amended statement of claim to the effect that the services which he performed were on motor vehicles operated by others than defendant.1 He testified that he was employed by defendant as a mechanic, and that 90 *632 per cent of his time was spent in repairing trucks moving in interstate commerce. He further testified that he adjusted the brakes of these trucks, and made other repairs necessary for them to travel on the highway and to operate in safety in interstate commerce. On this state of the record, we think defendant's motion for nonsuit should have been granted. To establish his case appellant was required to prove more than the mere fact that he worked on trucks moving in interstate commerce. If they were the trucks of his employer who was engaged in interstate commerce by motor vehicle, he had no cause of action. The burden of proof was on appellant to make out his own case as pleaded; an intentional vagueness did not shift that burden.
This undisputed testimony offered by appellant was accepted by defendant whose evidence established that it was engaged in hauling milk in interstate commerce, and that the interstate trucks upon which appellant worked were owned and operated by defendant. There was documentary evidence that the trucks were owned by defendant. Defendant's evidence was in no way helpful to appellant's case, and did not conflict with the latter's testimony.
Appellant, in his argument, concedes that the evidence is uncontradicted, but contends that it brings his employment within the Fair Labor Standards Act of 1938. With this we do not agree, although we recognize the purpose of the Fair Labor Standards Act.2 *633
In the first place, defendant was subject to part 2 of the Interstate Commerce Act, formerly, and herein, cited as the Motor Carrier Act,
The scope of the Motor Carrier Act is determined by the specific definitions found therein. Hansen et al. v. SalinasValley Ice Co., (Cal.)
"(14) The term `common carrier by motor vehicle' means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes, except transportation by motor vehicle by an express company . . .
"(15) The term `contract carrier by motor vehicle' means any person which, under individual contracts or agreements, engages in the transportation (other than transportation referred to in paragraph (14) and the exception therein) by motor vehicle of passengers or property in interstate or foreign commerce for compensation.
"(16) The term `motor carrier' includes both a common carrier by motor vehicle and a contract carrier by motor vehicle.
"(17) The term `private carrier of property by motor vehicle' means any person not included in the terms `common carrier by motor vehicle' or `contract carrier by motor vehicle,' who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise."
In determining whether a carrier is subject to the provisions of the Motor Carrier Act respecting common and private carriers, ownership of the commodity transported *634
is not the test, but the primary test is transportation for compensation; § 303 of this act (definitions) is remedial, and its terms are broad enough to include all those who, no matter what form they use, are in substance engaged in the business of interstate or foreign transportation of property on public highways for hire. A.W. Stickle Co. v. Interstate CommerceCommission,
Secondly, the maximum hours and overtime provisions of the Fair Labor Standards Act,
"(a) Powers and duties generally. It shall be the duty of the Commission —
"(1) To regulate common carriers by motor vehicle as provided in this chapter, and . . . the Commission may establish reasonable requirements with respect to continuous and adequate service, . . . and maximum hours of service of employees, and safety of operation and equipment.
"(2) To regulate contract carriers by motor vehicle . . . and . . . may establish reasonable requirements with respect to . . . maximum hours of service of employees, and safety of operation and equipment. *635
"(3) To establish for private carriers of property by motor vehicle, if need therefor is found, reasonable requirements to promote safety of operation, and to that end prescribe qualifications and maximum hours of service of employees, and standards of equipment."
In Bechtel et al. v. Stillwater Milling Co. et al.,
The scope of the overtime exemption granted by section 13 (b) (1) depends upon a determination of the character of the duties of employees. The exemption extends, under the terms of the act, to those employees of common, contract, and private carriers with respect to whom the Interstate Commerce Commission has power to establish maximum hours regulations. This power, the Supreme Court of the United States has ruled, may be exercised only in the case of employees whose activities affect the safety of operations. United States v. American Trucking Associations,Inc., et al.,
In determining whether activities of a mechanic employed by an interstate motor carrier affect the safety of operation of motor vehicles used in interstate commerce, so that the mechanic would be within coverage of the Motor Carrier Act and not within the coverage of the Fair Labor Standards Act, great weight will be given to the report of the Interstate Commerce Commission holding that mechanics employed by common, contract, and private carriers devote a large part of their time to activities which directly affect the safety of operation of motor vehicles in interstate or foreign commerce. West v. Smoky Mountains Stages, Inc.,
Appellant's final contention is that the case in any event should have been submitted to the jury. He relies on Nanty-GloBoro. v. American Surety Co.,
We are of the opinion that the court below not having granted defendant's motion for a nonsuit properly directed a verdict in favor of defendant in this case. Accepting at its face value all of appellant's testimony, it raises no disputed questions of fact requiring submission *639
to the jury, and it fails to support his theory or material averment; the only question it presents is one of law. Altman v.Standard Refrigerator Co., Inc.,
Assignments of error are overruled.
Judgment of the court below is affirmed.