Johnson v. Dierks Lumber & Coal Co.

STONE, Circuit Judge

(concurring).

I concur in the excellent opinion of Judge THOMAS. Since there is to be a new trial, it seems to me advisable to make an additional statement which may be helpful to the trial judge on retrial.

From the testimony of plaintiffs (at the trial from which this appeal) and from the arguments on this appeal, it would seem that a large issue of fact in this controversy is as to the amount of overtime which can be allowed to the several plaintiffs in connection with their duties as caretakers or watchmen. The evidence here shows that plaintiffs slept on the premises and that this sleep was an average of eight or nine hours a night, except when something went wrong necessitating their getting up to care for the property. The claims of plaintiffs cover this time when plaintiffs were sleeping as being hours of employment and, therefore, subject to overtime payment.

Since this case was taken from the jury at the close of the evidence for plaintiffs, we cannot anticipate what the evidence of defendant, on retrial, will be as to the duties and the work performed by each of the plaintiffs in the capacity of caretaker or watchman. However, we can be reasonably sure that the entire evidence, on retrial, will give the jury a picture of what such employment and duties were and what was done in performance thereof. In rulings on evidence and in the charge on retrial, it may be useful to the trial judge and to the parties to have the view of this court as to whether such time of sleeping should be regarded as hours of employment and, therefore, subject to overtime. The purpose of this separate opinion is to give my own views as to this matter. My view is that the time when these plaintiffs could be sleeping is not to be treated as hours of employment in the factual situation shown in this present record. I do not mean that, in every case nor under all circumstances, sleeping hours should be excluded from employment hours. Whether they should or not must depend upon the factual situation of each case as it appears. That such hours may be excluded under certain fact situations is not a novel idea (see Muldowney v. Seaberg Elevator Co., D.C., 39 F.Supp. 275, 282 , and Interpretative Bulletin No. 13, Department of Labor, Wage and Flour Division, paragraphs 1, 2, 6 and 7). Nor do I mean to exclude the time when plaintiffs might be aroused at night to care for the property. I cover solely the time when they were or could have been sleeping at night