# Appendix — Mendo Wood Products, Inc. v. Mulder > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0015%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1964 - **Citation:** 379 U.S. 844 ## Text Page ; - Index to Appendices Appendix A—Judgments: J. Memorandum Opinion of the superior Court 2. Bindings of Fuet and Conelusions of Law of the SupeFior Coult 2.0... -cccccsecescne 3. Jwlyment of the Superior Court Opinion of the Distriet Court of Appeal oo." weeteteces t . be — Order of District Court of Appeal Denying Petition TO GRCMONTOIE 5 5.0 osc eon cede ass ; ? . 6. Order of Supreme Coury of the State of California Denying Petetion tor Hearing Appendix B-—Constitutional Provisions and Statutes Whieh the Case Involves; }. Constitution 61 tle United States, Seetion S, Clause 3... 2. Constitution of the United States, Amendment NIV, Section ]o..... Mende ePE RIOTS Pd ee wea ES ile Malan $. Tithe 2s U.S.C. Judiciary aid Judicial Procedure, See- at TORE iis cs bacasoitexicy POL Ah OF 4. Fair Labor Standards Act (Title 29 U.S.C., Labor Chapter S, Sees. ZOT, 235, 210, 5. Motor Carrier Net of 1955 (Tithe 49 U.S.C. Transpor- tation, Interstate Commerte. Net, Part TL, Seetions 302 Sf eer eee reer eer ere ; 6. Portal to Portal Pay Aet of 147 (Tithe 2o Use Labor, Chapter G Sees. 255 and 260 7. Code of Federal Regulations Tith: 29, Labyr. Appendix, - Chapter 5, Sees. T7206). Ody ated Seetion Ts5.0 (05%. , * * Also contained in) Tith 29, Code of Federal Repnila- tiots, Seetion TS5 0, until that seetion was reniurabered as T54.1 by 26 Federal Regulations 7732. Atgust 1s, "OOH. and the danguage slightly, changed, bat) not ane sueh ta. ver as to affeet this litigation. ae ach -— ~~ te _ Appendix A ~ Title of Court and Cause | = MEMORANDUM OPINION AND OKDER FOR FINDINGS This is an action brought by the plaintiffs against the defenmlants for overtime compensation under the Fair Labor Standards Act. It is conceded by the _ defendants that their operation ts covered by the Pair Laber Standards Act unless they come within the Motor Carrier Exeqnption found * Section 13 of the Act. It has been conceded by the plaintiffs that they were employed by defendants in interstate conumerce prior to the year 1959. The effect of. this pre 1959 activity in interstate commerce will be discussed later in this opinion. Likewise, there is.no basie fact conflict as te the nature of the operation during 1959 and 1960. The hasie dispute is whether or not the faets as conceded Lring the shipments under the provisions of the Motor Carrier Act. During the vear 1959-60 the defendants . shipped lumber by two different means and each of the plaintiffs was Involved in each of the methods of shipping. The first method used by the defendants for shipping their lumber was te haul it from their mill over private roads to the railroad where the lumber was loaded on, railroad cars and shipped out of state, and admittedly in interstate commerce. Each of the plaintiffs claimed that they drove trucks from the mill to the railroad entirely on-a private read, It was con- ceded that some trucks may from time to time have used a portion of U.S. Highway 101, but that this was ‘i negligibl part of the trip and that most of the ’ trucks did not use this route. There is ne testimony to contradict the plaintiffs’ claim that they did not tva- verse U.S. Highway 10L in making deliveries to the railroad. It is contended by the defendants, however, that because the plaintiffs went under Highway 101 they thereby somehow became invelved with a public highway which brings them within the provisions of the Motor Carrier Act. The Cotrt i. not persuaded that this is so and feels that this portion of the trans- portation clearly comes Within the holding in 34 motor carrier cases, Interstate Commerce nob, cited in-the plaintiffs’ brief, ; It is the finding of the Court, therefore, that such shipments did not bring the plaintiffs within the scope of the Motor Carriprs Act and, hence, -outsid> the _ application of the Fair Labor. Standards Act. The other type of shipment by the defendants dur- ing 1959 and 1960 was a truck haul from the defend- ants’ sawmill over the publi¢ highways, to wholesale and retail himber yards, where the lumber was un- loaded from the truck, held in. the yard, and later trans-shipped to other poitits. The evidence does not show that the defendants intended that the lumber be shipped out’ of ‘state tipon- reaching its California destination, no; did they intend that it, remain in the state. It seems apparent to the Court that their pri- mary concern Was With selling it, and that its dispost-- - tion after delivery by them was entirely within the diseretion of the buyer of the Jumber, and that it cannot be held that these hauls from the defendants’ ‘mill'te the humber yan e ‘dag interstate commerce, 3 It seems to the Court that these shipments were simi- lar: to. those deseribed in Dallum vs. Farmers Co- operative Trucking Association, 47 7 Supp. 785, 789, where the Court said: 5 andi it was the plan and intention of the National Butter Company to store the butter at St. Paul until such: time as transportation thereéfto customers could be made. No further movement of any particular part to any particular person was contemplated. Delivery depended upon the demand. of the customers of the National But- ter C omp% any.’ The Court went on to indicate that under these cir cumstances the local transportation was not in Inter- _ state Commerce, | We now return to the significance of interstate transportation priot to 1959. The defendants. have urged that even though a small part of the time spent by the plaintiffs while i in the employ of the defendants Was spent in intérstate shipments this would make all -° of their employment exempt from the application of the Fair Labor Standards Act. The case of Morris’ vs. MeComb held that even though less than 4% of the shipments of the employer were’ in Interstate Com- merce, Where the employees were engaged indiserimi- nately in that activity they were covered by the Motor Carrier Act and exempt from the Fair Labor Stand- ards Act. This case was followed in the case of Rogers Cartage Company vs. Reynolds, 166° Fed. 2nd. 317. where the Court held an employee who hac spent 39 out of 55 weeks engaged intra-stite shipments to * nevertheless be covered by the Motor Carrier Act and 4 exempt from the Fair Labor Standards Act. If the plaintiffs had engaged in even an occasional shipmient in interstate commerce during the years 1959 and 1960 there would be no question, about their being exempt from the provisions of the Fair Labor Standards Act. But they did not do that, and hindsight new enables us to see that there was a complete change in the method -of operation beginning with January. 1959. The Court feels wat they were no- Jonge® covered by the Motor Carriers Act on January 1, 1959, and that from that time forward they were subject to the pro- visions of the Fair Labor Standards Act. Section 207 of the Fair Labor Standards At indi-- cates that the basis for determining hours. shall be weekly, Since it provides ‘that **No employer shall employ any of his employees ... for a work week: longer than 40 hours unless aa employee receives: compensation for his employment in excess of the hours above specified at a rate not less than 1's times the regular rate at which he is employed.”’ It follows: therefrom that’ Plaintiff. Mulder shall -: have judgment for $2.220.90, Plaintiff Woodall, shall have judgment for $2,240.03, “and Plaintiff Pee --_— shall have judgment for $1885.77. Normally an employee is entitled te liquidated dam- ages equal to the-amount of overtime pay whieh he should have been paid. It is provided, however, in 29 U.S.CLA, 260, "Tf the emplover shows to the satisfac tion of the Contt that the act or omission giving rise te such action was in geod faith and that he had reasonable gréunds for believing thathis act or omis- sion was not a violation of the Fair Labor Standards 9 g Act of 1938 as amended, the Court may in its sound discretion award no liquidated damaes or award any amount thereof not to exceed the amount specified in Section 216()) of. this Title.’ Here it is urged that: based upon this section the Court should not make an ~ award of liquidated damages. It is well established that the burden. of showing gvod ‘faith is upon the defendants in an action such as this. See Parks vs. Pucket, 154 Fed. Supp, 42,850. It is stated in Rothman vs. Publicker Industries, 4 ae ; . e . . ° bed , Inc., 201 Fed. Reporter 2nd 618, 620, after quoting the above section of the United States Code, as follows: **We. understand this language to impose upon the delinquent employer who had escaped the pay- ment of liquidated damages a plain and substar- tia] burden of persuading the court by Proof that his failure to obey the tatute Was both i Mi goed faith and- predic ated upon such reasonable grounds that it would be unfair to IM Pose upon. him more than a cempensatory verdict.”’ i In that opinion the court approves the languave of the District Court, which reads as follows: ~The utmost that eguld he. derived from. the evidence in this respect is that the employer had the héna fide belief that the plaintiff was within the e xempt Glass. It is well settled that reasonntie cause in the portal to portal act means moore than that. The Court has no option other than to add liquids ited. damages and counsel fees to the ver- dict. Based pon these authorities the Court is of the Oplegn thi it it has. HO option but to add hanidated damages te the verdiet in en amount equal to the overtime pay. In addition, the Court is-obligated by 6 the -Act to make an award of attorney's fees to the plaintiffs. The Court is of the opinion that 8500-00 is a reasenable attorney's fee for each plaintiff in this “action. This brings us to the bre: tkdown- claim of Riddle. The Court finds it diffelt to understand defendants’ claim that Riddle is net entitied to standby time dur-- -ing breakdowns. ‘It seems to the Court that it ‘is im- material that the emplover had no practicé of paying for breakdown time. The Court feels that defendant Riddle has adequately established iis claim to break- down time in the stm of £511.92, but that ne ither ® attorney’s fees nor a penalty would be appropriate in this instance for it is not shown that this breakdown time amounted to either overtime time not intluded in the previous award or any othér form of compen sation within the Fair Laher Standards Act. Actually ‘this award is based upon an implied contract to pay the employee for time, spent for the benefit of the employer and ix not based upon the Fair Labor Stand- ards Act as are the rest of the claims-in this action. ‘The plaintiffs will prepare findings of fact and con- clusions of law consistent with this opinion and the matter will be on the Court's Calendar for the settle- ment thereof on December 20, 1962. Dated this 20th-day of November, 1982, - Robert U. Winslow 6° Judge — Filed Nov. 23, 1962 | J. Broaddus, County Clerk By MH, Deputy *) r _ oO [Title of Court and Cause] FINDINGS QF FACT AND CONCL USIONS OF LAW The above entitled action came on regularly for trial on the 30th dav of April, 1962, befare the court sitting | without a jury, a jury having been expressly waived, Thomas F. Cleland appearing as counsel for the plain- tiffs, and Timothy O’Brien appearing as. counse] for. the defendants, and the court having Heard the testi- mony and having examinéd the proofs offered by -the respective parties, and the causé having been sub- mitted to the court for deeision, and the court being fully advised‘in the premises now makes its findirtes of fact as follows: . . - Findings of Fact 1. That it is true that at all times herein men- tioned defendants were engaged in the buying, proc- essing, selling and transportation at Wholesale and retail of lumber and forest products, That at said times, defendants were subject to the laws of the State of California arid to the provisions ¢f the Fair Labor Standards Act enacted by the United States € ONLTESS, Th: it it is true that during the years. 1959 and 1960, the plaintiffs herein were employed by defendants as truck drivers and while so employed, plaintiffs, at. Various times and in various weeks, warked in excess of forty (40) hours per week. That for said hours.of overtime, plaintiffs were entitled to time and a half whereas plainti Fs were paid only straight time, Theat the hourly compe nsation of plaintiffs at straight time. Was $2.37 por hour or more, That the amount of un- oe e 8 ° - paid wages due plaintiff Albert FE. Mulder is the sum of $2,220.90. That the amount of unpaid wages due plaintiff Robert B. Riddle is tié sum of $1,885.77. ‘hat the amount of unpaid wages due plaintiff Arthur —O. Woodall is the sum of $2,240.03. That cach of said ~ plaintiffs is entitled to said swums. That the same has been demanded from defendants, but they have re- | fused to pay said sums to, plaintiffs. Thai it has be- come necessary for plaintiffs and each of” them to employ an attorney ig prosecute this action. That the sum of $500.00 Is a reasonable suri to allow for each plaintiff herein for the services rendered by said attor- ney. That the total of saidssum so allowed is the sun f $i 50).00, That it is true that the failure of said mae rs to pay said’ overtime is a violation of law and said employers are therefore liable te said em- plovees, the plain herein, in ab additional amount to the wipaid wage. as iiquidated damages. 2. ‘That it is‘true that Robert b. Riddle while in. the employ of defendants worked a total of 216 honrs for which he received no .pay whatsoever. TH.at. the current rate of-pay at the time was $2.37 per hour. That the wages. due and unpaid to sad’ plaintiif is the sum of $511.92. That the defendanis are indebted to plaintiffs in the sum of $511.92 for said unpaid wages. From the foregoing facts, the court con: ludes : Conelusions of law. lL; Tne plaintiff Albert F. Mulder ts entitled to judgment against defendants in the sum of $I P9Q), MH) for unpaid overtime wages plus interest at the rate of. . : : 9 ‘ . s > 7% -per annum from June 1, 1961, plus the sume of | $2,220.90 as liquidated damages plus the sum of $500.00 for attorney's fee. plus costs. 2. That‘the plaintiff Robert B. Riddle is entitled » to the ‘sum of $1,555.77 unpaid. overtime wages pius interest at the rate of 7 per annum from June L, 1961, plus the stm of $1,885.77 as liquidated, damages plus the sum of $500.00 attorney's fees plus the sum of $511.92 unpaid wages with interest from Jure 1, 1961, together with his costs of suit. | : 3. That plaintiff Arthur O. Woodall is entitled to: the sum of $2,240.03 unpaid. wages plus the interest: thereon at the rate.of 7% per annum from June’ I. 1961, plus the sum of $2,240.03° icghidated damages plus. the sum of $500.00 attorney's fees together witis liis costs. as Let judgment be entered avcordingly. TFated: This 21 day of December, 1962. : Revert 1]. Winslow Judge. of the Superior Court a 10 + PROOF OF SERVICE ‘State of California County of Mendocino.—ss. I, the undersigned, declare under se unis of per- jury: ieee | si That I was at the time of the service of the papers _ he ak ed to, over the age of. eightee n years and ~ not a party to the within entitled action. That on November 30, 1962, I served a true cypy of the Findings. of Fact and Conclusion of Law in the above entitled action on Katherine Shanyfelt, legal secretary for Timothy O'Brien, Attorney for De fend- ants, 150 North Pine Street, Ukiah, California. Dated: November. 30, 1962. Sharon Johnson | “Filed 7 21, 1962 W. J. Broaddus, Counti- Clerk By M. M., De ‘puty. B, * [Title of Court and Cause} JUDGMENT This cause came on regularly for trial before the — court sitting without a jury on the 30th day of April, 1962, Thomas F. Cleland appeared as attorney for the plaintiffs, and Timothy O’Brien appeared as attorney for the defendants, and the Court having ‘heard the testimony and baving éxamined the proofs offered by the respective. parties and the Court béing fully advised on the premises and having filed herein. its findings of fact and conclusions of law, and having directed that judgement be entered in accordance there- with; now, therefore, by reason of the law and findings aforesaid : : It is hereby Ordered, Ad judgedeand Decreed ; 1. That plaintiff Albert E. Muldér have judginents against the defendants and cach of t} om the sum. of $2,220.90 with interest thereon, at the rate of 7% per annum from June 1, 1961, and the further sum oof $2,720.90 with interest thereon at the rate of 7% per aa from date hereof unti!. yaid, * That plaintiff Robert I. Riddle have Indgment astitiie’ the defendants and each of therm in the sum of $1.-5%77 plus interest thereon at the rate of per any am from June 1, 1961, anid the further sum of $2,897.69 with interest thereon at the rate of 7% per annum from date hereof until paid. | | 3. That plaintiff Arthygr Of Woodall have judgy- Snont against the defe vidal cand each of the 1 in the sum of $2,240.03 with interest at the rate of 7 per annum from June 1, 1961, and judgraent for the further. sum of BS 740.03 with interest thereon at the rate of 7% per annum from date hereof until paid. 4. That plaintiffs have judgment against the de- fendants for their costs herein taxed at §.... Dated : "This 21 day of December, 1962. Robert L. Winslow one Judge of the Superior Court ‘PROOF OF. SERVICE State of California | y : County of Mendocino.—ss. % I, the undersigned, dec — unde 'T penalty of per- jury : : That 7 was at the time of the service of the papers: herein referred to, over the age. of eighteen years and not a party te the within entitled action. That on November 30, 1962, J served a crue copy of the Judgement tn-the above entitled aetion on Kather- ine Shany.elt, legal secretary for Timothy O’Brien, Attorne v for Defendants, 150 North Pine Street, A kiah, California. aA Dated: Noveasker 30, 1962. . a Se . Sharon Johnson Filed Dee. 21, 1962 W. J. Broaddus, County Clerk " By M.M., Deputy Judgmetits Book 38 Page 331 Entered Dec. 21, 1462 ¢. . ~~? 13 In the District Court of A ppeal State of California. First Appellate District Division Two 1 Civil No, 21,307 ooo -----—- & Albert Mulder, Robert I. Riddle, wa’ Arthur ©. Woodall, Plaintiffs and Respondents, | Mendo Wood Products, Inc., E. C. | Welch and J. D. Welch, Jr., | : Defendants and Appellants. ace Romero Mine Tied AACE OPINION ‘This is-an action by three: former employees of defendant Mendo Wood Products, Ine. to recover wages allegedly due them under the Fair Labor Stand- ards Act of 1938 (29 U.S.G.A., §8 201 “et seq.). The - complaint alleged that plaintiffs Albert Mulder, Albert Woodall, and Robert Riddle, were each employed ws truck drivers by the: defendant for. specified periods during the vears 1959 and 1960; that each of the plaintiffs worked’ a considerable number of hours in excess of 4° hours per week; that at the times siieh employment was performed, defendant was subject te the provisions of the Fair Labor Standards Act and + i ld « was required tom pay plaintiffs time-and-a-half for their hours of overtime;-that defendant had | in fact paid plaintiffs only straight time and tlat they. were therefore entitled to recover he difference between — -time-and-a-half and straight time for the hours of overtime worked, liquidated damages in an equal amount, and attorney's fees. In addition, plaintiff Riddle alleged that during the years 1959 and 1960, he had worked a number of hours in the defendant's employ for which he had received no pay whatever) He sought straight wages for, the hours so were liquidated damages in an equal amount, and attorney fes. The defendant answered, admitting that it was sub- ject to the Fair Labor Standards Act at the times mentioned in‘the complaint, and that it had emploved “plaintiffs as truck drivers during the periods alleged. As an affirmative defense to each cause of action, de- fendant alleged that it was a private carrier of prop- erty by motor vehicle within the meaning of Part II of the Interstate Commerce Act (49 U.S.C. A. 88 301 et seq.) ; that plaintiffs were employees with re spect to whom the Interstate Corimerce Commission had the power to establish qualifications and maximum hours of service pursuant to said act; and that plaintiffs were accordingly exernpted from the. maximum hours and. overtime provisions ‘of the Fair Labor Standards Act by section 13, subdivision (>) (1) of said act (29 US.C.A., §213(b)(1)).. The evidence established that defendant was a Cali- fornia corporation engaged m the manufacture and 15 sale of studs, and that its principal place of business was located at the Ridgewood Ranch in Ukiah, Cali- -- fornia. In order té deliver-its-studs to-purchasers, the— defendant used trucks which it leased from other’ companies and which were eperated by drivers in its own.employ. Plaintiff Mulder was employed by the defendant as a truck driver during the period from January 1, 1959 through September 15, 1960; plaintiff Woodall, during the period from J anuary 1, 1959 through July 15, 1960; and plaintiff Riddle, during the period from January 1, 1959 through August 15, 1960. Time cards covering the periods in question showed that each of the plaintiffs had worked a substantial number: of hours in excess of 40 hours per week, for which they were paid only straight time. Computa- tions based upon these time cards demonstrated that the difference between straight time and time-and-a-- half pay for the total number of overtime hours ‘worked came to $2,222.90 in the ‘case of plaintiff Mulder ; $2,240.33 in the case of plaintiff Woodall; and $1,885.77 in the case of plaintiff Riddle. In addition, plaintiff Riddle, during the period fon May 1, 1959 through July 31,-1960, spent 216 heurs attending his truck during breakdowns on the road and received 10 compensation whatever for this tims. Straight time pay during the period in question was $2.37 per hour. The evidence relative to the interstate character of defendant’s trucking operations revealed that in the year 1958, defendart’s drivers did transport shipments ‘ of studs to various out-of-state destinations. It was conceded by the defendant, however,. that no out-of- 16 state deliveries were made. during 1959 cr 1960. The testimony pertaining to the defendant’s reason for dis- continuing these deliveries was somewhat conflicting. Elwood Welch, the secretary of defendant corporation, testified that there had-been no change of .company policy commencing in the year 1959, and that the defendant was at all times willing to sell and deliver its studs to both in-state and out-of-state buyers. ° Plaintiff Mulder testified; however, that there had been a definite change in delivery procedures subse- quent to 1958 and that the defendant henceforth ar- ranged to have its out-of-state buyers come to the Ridgewood Ranch and pick up the studs ordered in their own trucks. He also testified that the defendant did not have either an Interstate Commerce Commis- sion permit or Interstate Commerce Commission plates for its trucks. , | | In any event, all of the hauls made by defendant's drivers during the years 1959 and 1960 were between two points within the State of Califoriia. In the majority of cases, the drivers would pick up studs at the Ridgewood Ranch and deliver them to various traets under construction and. to retail or wholesale lumber dealers. Although the defendant introduced . evidence to the effect that certain of these wholesale , dealers ultimately shipped some of the defendant’s studs to outof-state retail buyers, there was no evi- dence.that such shiyments were part of any continuous out-of-state movement commencing at the Ridgewood Ranch. To-the contrary, plaintiff Mulder testified that the bills of lading or waybills showed the ultimate 17 “ destination of the loads delivered by defendant’s driv- -er’s to be the lumber yard,of the particular California wholesaler. Mr. Welch himself confirmed this testi- “mony, and stated that the defendant’s duties with re- gard to its studs ceased upon delivery to an in-state w':olesale customer, that the defendant did not under- iake to tell its wholesale customers what te do with the studs, and that any further shipment of the studs was -dictated by the wholésaler’s own requirements and. by orders which it might receive from its own out-of-state customers. In addition.to the intrastate shipments to tracts and to retail and wholesale lumber dealers, there was also evidence that the defi ndant’s drivers were occasionally required to haul studs, by way of private road, from the defendant’s stud mill to a railroad -siding also located on the Ridgewood Ranch, where the studs were- loaded on ears and shipped to various out-of-state des- ‘tinations. The-total distance from the mill to the sid- ing was some 114 to 2 miles. There was also evidence that sometime during 1959, defendant’s drivers delivered the component parts for a feed mill from the Miller Manufacturitig Company in Modesto, California, to the Ridgewood Ranch, and that certain of these parts had been manufactured in other states. The feed. mill machinery had been or-: dered by Welch & Welch, @ partnership, whose prin- cipal place-of business was also located at the Ridge- wood Ranch and whose members were identical with the shareholders of defendant corporation. Mr. Welch testified that the two companies frequently exchanged - 18 equipment -and labor. and that defendant corporation had provided the trucks and drivers to pick up and deliver the feed mill parts ordered by Welch & Welch. Mr. Thompson, the president and general mariager of the Miler: Manufatturing Company, testified that _ Weich & Welch had ordered the parts for the feed mill from his company, that certain of. the parts had. been manufactured by his company in Modesto and. other parts had been ordered from out-of-state manufactur- ers. Mr. Thompson also testified that’ certain of the parts manufactured outside the state had-been pur- chased by his company from dealers within the state, and-that other parts which had been ordered directly from out-of-state sources were stored by his company | ' for some five or six months before heing sold to a particular in-state customer. ‘Upon this evidence, th: trial court found that dur- ing the years 1959 and 1960, the defendant was subject to the provisions of the Fair Labor Standards. Aét and had employed plaintiffs as truck drivers; that at various’ times during these years,: plaintiffs had ‘worked in excess of 40 hours per week’; that although plaintiffs were entitled to Gnente mea for the | hours so worked, defendant paid them only straight time; that plaintiff Muider was entitled to unpaid vages In the amount of $2,220.90, plaintiff W oodall to Meio wages in the amount of $2,240.03, and plaintiff. Riddle: to unpaid wages in the amount of $1;885.77; that defendant's refusal to pay the amounts due had necessitated the bringing of the instant action and that $500 was a reasonable amount to allow each plaintiff 19 ¢ Sf -for attorney's fees; that plaintiffs nine det entitled to liquidated damages in the amount of their unpaid wages. The court also. found that pleintiff Riddle had worked 216 hours for whieh he received no pay what-. ever, that his wages s at that time were. $2.37 per hour, and that he was entitled to recover the sum of $511.92. Judgment was accordingly entered and det endant ap-— vealed therefrom.’ | Appellant first contends that its trucking oper: rtions were-exempt from the wage and hour provisions of the Fair Labor Standards Act by virtue of section 13, sub- (division (b)(1) of said act (29 U.S.C.A,, § 213(b) (1)), which provides in relevant part that ‘*The pro- visions of section 207 of this titfe shall not apply with | respect to any. employee with respect to whom the - Interstate Commerce Commission has power to estabe lish qualifications and maximum hours of ser Vice a sudnt to the previsions of section 304 of Title 49. Section 304, subdivision (a) ( 3) of Title 49 (49 U.S.C.A., § 304(a)(3)), provides that “It shall be the duty of the Commission . . . [t]o establish for private carriers of property by motor vehic le, if need therefor is found, reasonable. requirements to promote safety of ope ration, and to that end prescribe qualifications ° and maximum hours of service of employees, arid standards of equipment.’ Pursuant to section: 303, subdivision aed (49 ionic: § 303(a)(17)), ixihch Oe notice of appeal actually provided or ge **de- fendants Mends Wood Products, Ine., B.C. Weleh and oD. Welch, Jr.. hereby appeal . . from said judgment,’” the ia two individuals appear t hav e abandoned their appeal and have filed no briefs w ith this ourt. ; ro ns: ... [t]he term ‘private carrier of property by motor: . vehicle’ means any person ... 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.” Pursuant to section 303, sub- division (a)(13) (49 U.S.C_A., § 303(a)(13)), *. .. [t]he term ‘motor vehicle’ means any vehicle ... . used upon the highways in the transportation of passengers vr property ...’’ Seetion 303, subdivision (a) (12) (49 US.C.A., § 303(a)(12)), provides that **. . . [t]he term ‘highway’ means .the roads,. highways, streets, _and ways in any State.” ; ; The application of the exemption set forth in section 13, subdivision (b)(1) of the Fair Labor Standards - Act is determined solely by the existence of power to regulate in. the Interstate Commerce Commission and it is not necessary for the commission to hive exer- cised this power and actually established qualifications and maximum hours of service, (Levinson v. Spector Motor Co. (1947) 330 U. S. 649, 661.) | Appellant asserts that it clearly qualified as a *‘pri- b vate carrier of property by motor. vehicle’” subject to- the commission’s power to regulate because tne inter- state character of its operations was conclusively’ es- tablished by evidence that (1) appellant's trucks were driven to out-of-state destinations prior to 1959 and no change in company policy occurred in 1959; (2) ap- pellant’s trucks delivered studs to wholesale lumber ‘dealers who subsequently ‘“transhipped”’ these studs . ’ al to_ out-of-state destinations without’ reprocessing; (3) appellant’s trucks carried machinery from the Miller Manufacturing Company in Modesto tothe Ridgewood | Ranch, and certain’ of this: machinery was ordered from out-of-state manufacturers; and (4) appellant’s trucks carried studs ‘to railroad sidings, where such studs were loaded and ‘shipped to. out-of-state des- tinations. si | | Taking’ these contentions .in ordér, it is apparent that the testimiony pertaining to the presence or ab- sence of a change in company policy regarding out-of- state deliveries presentéd a question of fact for the ‘trial. court. Although .appellant’s secretary testified ‘suffice to render appellant a private that no such change oceurred, there Was evidence that . appellant had arranged to have its out-of-state buyers pick up their studs at appeilant’s mill at all times’ subsequent to 1958 and that appellant made no single out-of-state delivery- during 1959 and 1969. Under such circumstances, it clearly cannot be said that the. evidence was insufficient as a matter_6f law to support a finding that here kad been a change in company policy and that appellant had. deliberately discon- tinued its out-of-state deliveries afier 1258. ~The evidence that appellant: delivered -its products te California wholesalers, some wf. whom ultimately reshipped the products out of state, spmilarly does not 1 i care subject to - the regulatory powers of the’ Interstate Commerce Commission. Sine the evidence clearly indicated that appellant bad no further interest in its studs following sale and delivery to California wholesalers, it is appar- _ ent that appellant did not participate in any continu- ous movement of products into interstate commerce. In Daum v. Farmers Co-Operative Trucking Ass'n. (D. Minn. 1942) 46 F. Supp. 785, the court held that butter which was delivered to a distributing center and stored until such time as it could he transported to customers was not in iriterstate commerce until such — time as, it left the distributing cénter enroute to out- of-state customers. Although the butter was trans- ported to the, distributing center vith knowledge that it might eventually be shipped out of state, no further movement of the butter to. any particular person was contemplated aud ‘delivery was dependent upon ‘the. demands of customers. The court stated, ** Mere inten- tion. by the owner to place goods in interstate coin- meree, or the gathering of goods at a depot for that purpose, is not. sufficient. It must appear that the ‘goods have entered upon transpertation to another state before it can be said that they are in interstate commerce, (Pp. TS7-7Td5a, ) In the present case, the record Is ine oid of any evi- deyce that appellant’s studs were already destined for a particular out-of-state customer.at the ume they left the Ridgewood Ranch. The evidence establishes, to the contrary, that appe sl: int seld its studs only: to Califor- ~ Ila whole ssalers and: that it had no foreknowledge of the fact that certain of its studs might, ultimately be shipped ‘out of state. Appellant's delivery of feed mill parts to the Ridge- wood Ranch presents the converse situation. The evi- dence reveals that the machinery in question. was 23 ordered by We ch & Welch'from is Miller ‘Manufac- turing Company in Modesto, California. Although it is true that certain of these parts were ordered by the Miller - Manufacturing Company , from out-of-state sources, there is ho indication in the record that either. Welch & W ele: or appellant and its drivers were ‘aware of this fact. In addition, there was evidence to the effect that certain of the parts which had. been manufactured out of state Were, either obtained from California suppliers or were re tained i in the war chouse of the Miller Mannfacturing Company for se vera | months prior to their delivery to the Ridgewood - Ranch. Under such circumstances, we believe the trial court would be justified in conchiding that the parts in. _ question were No longer in interstate transit when they were picked up by appellant’s trucks. | Moreever, in our opinion an isolated incident of this natiire is not sufficient to render appellant and its e a s subject to the regulatory powers of the Interstate Commerce Commission. | The deliveries to the local railroad siding on the Ridgewood Ranch.appear to ‘fall direetly within the holding of Henry W. Robe rtson Contract Carrier Ap- plication { (1942) ) 34 L.C.C. Reports, Motor Carrier Cases, No. M.C96212. In. that case, the applic ae ‘sought a permit authorizing his operation in: inter- state or. foreign commerce as a contract carrer hy motor vehicle, The evidence revealed that-the appli- cant tranisperted zine and lead concentrates from the mine bins to cars at railroad siding rs, Where they were loaded and shi; oe tu ‘out-of-state poitits. The ship 24+ ments from the nines to the sidings covered distances of not. more than two miles .and were entirely intra-_ state and over private rights of way. These Shipments were made, however, with the intent to transport, the concentrates in ea contimuous Movement to out-of-state ‘destinations, The commission nevertheless held that the applicant was not subjeet to its regulatory powers. in so hGiding, the commission pointed out that Part HH of the Dnterstate Commerce Act, from which it derived its powers, defined ‘tmotor vehicle’? as ‘any vehicle . used upon the highways...’ (see 49 U.S.CLA., § 3053(a)(13)) and further defined “highway” as ‘the reads, highways, streets, and ways in any State’’ (see 49 US.C.A § 303(a)(12)). Since the applicant shipped his woods only over private rights of way, he did not qualify as a contract. carrier ‘hy motor ve- hicle’’ within the meaning of the act. In the instant case, appellant’s drivers similarly made practically all of their trips to the railroad siding entirely over a private road on-the Ridgewood ° Ranch, the only exceptian occurring when the load was of such an unusual size that it would not go through the underpass beneath Highway 101, at. which time, for a short distance, the trucks would traverse said highway. It is alse to be noted that. said highway traversed the Ridgewood Ranch, the owner of the fee to the area over which the state enjoyed an easement for the purpose of the highway use. Appellant strenuously argues that the trial court’s method. of computation fails to comply with the Fair « Labor Standards Act and demands 2 reversal of the 20 judgment on this ground alone. We have read the testimony and examined the exhibits offered on behatf — of plaintiffs, and we find no support for such conten- tion. The appellant ignores the fact that we are faced. here not with persons working a set five-day week w ith. an eight hours per day schedule of employment, but ‘rather truck drivers who worked a seven-day week with only an cecasional gpy off each month, if for- tunate, and whose pay was based on an hovrly -rate requiring the truck “to be moving, refueling, loading or unloading, the hours of pay necessarily varying with the distance from the plant to the place ef deliv- ery. The trial court's adoption of plaintiffs’ allowance of 80 or 88 hours for each pay pr rod Was more than fair to appellant, for we can re fadily see how by reason of breakdown ‘of the equipment or other delays a driver could, during a seven- -day week, only be en- titled to straight time well below 40 hours and yet im the following week be so continuously. occupied ‘that iis compensable time would run many hours beyond the straight time period of 40 hours, yet ander the computation here used would sacrifice overtime hours to make up the deficit below the 40 hours in the pre- vious week before setting the number of his compen. sable overtime hours. Such advantage enjoved by the appellant furnishes no valid ground for complaint. If appellant wished a more detailed method of computa- “tion, it had its oy portunity to develop the same, for it was from its records that the figures arrived | at by the trial court were deduced. Appellant next contends that the court erred in awarding respondents penalties In an amount equal to. in. 26 the wipaid overtime wages found to be*due them. Ap- pellant asserts that the record contains uncontroverted — évidengé that its failure to pav its employees time-and- -achalf for overtime was due to its good faith belief that it was not subject to the wage and maximum hour — provisions of the Fair Labor Standards Act. Under such cireumstances, appellant contends that the award of penaltjes must be reversed. Pursnant to section 207, subdivision (a)(1) of the Fair Labor Staridards Act (29 U.S.C.A., 6 207(a) (1)). tne employer shall employ any of his employees ... for a workweek Jonger than forty hours, unless such employee receives compensation for his employ- ment in excess of the hours above specified at a rate not Jess than one and one-half. times the regular rate at which he ts employed ary Section 216, subdivision () (29 ULS.C.A,, § 216(b) ) provides that ‘\Any employer who violates the pro- * visions of 2... section 207... shall be liable to the employee or employeés affected in the amount of .. . their unpaid overtime compensation... and in an additional equal amount as liqaidated damages.” Section 260 of the, Portal-To-Portal. Act (29 U.S. C.A., § 260), upon which appellant relies, provides that ‘fn any: action commenced prior te or on or after May 14, 1947 to recover... unpaid overtime | compensation, or liquidated damages, under the Fair Labor Standards Act of 1935, ax amended, if the employer shows to cue satisfaction of the court that the act or omission giving rise to such aetior was im geod faith and that he had reasonable ¢rounds for ‘believing that his act or omission was not a violation ‘ ts hand of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, awdrd no liquidated damages or award any amount thereof not to exceed the amount specified in section 216(b) of this title.”’ oa ; | In order to escape payment of liquidated damages, pursuant to the section above quoted, the employer ust sustain the plain and substantial burden of per- suading the court by proof that his failure to obey the Fair Labor Standards Act was both in good faith and * predicated upon such reasonable ground that it would be unfair to inpose upon him more than a compersa- tory judgment. (Wright v. Carrigg (C.A.S.C. 1960) 275 F. 2d 448.) ; In the present case, appellant has failed to direct this court’s attention to any testimony demonstrating that appellant had reasonable grounds for believing that it was not required to pay its employees the over- time compensation required under the Fair Labor Standards Act. Although appellant now asserts that it was.under the belief that its interstate activities rendered it subject to Part Li of the Interstate Corn- merce Act and thereby exempted it from the wage and maximum hour provisions of the Fair Labor Stand- ards Act, this contention is not borne out by the ree- ord. which reveals that appeiiant made no interstate truck shipments during the years 1959 and 1960, and that appellant never applied for or received an Inter- state Com nerce Commission permit or plates. The only testimony ‘bearing directly upon appellant's good faith belief thet it was exempt from the wage and maximum hour provisions of the Fair. Labor Stand- 28 ards Act consisted of Mr. Welch’s statement that he Niad always considered lumber ‘tan interstate article”’ regardless of where it was shipped or what was done with it. Under such cireumstances, it cannot be said that the court abused its discretion in awarding: re- spondents liquidated damages. Appellant’s next contention is that there is.no sup- port?in the evidence. for respondent Riddle’s award of #511.92 as compensation for the hours spent with his trick during breakdowns. We agree. An exarnination of the findings fails to reveal thé precise basis for this award, since the findings, as above noted, merely state that respondent Riddle had worked a specified number of hours and was entitled to recover wages therefor. The trial court’s memorandum opinion, however, indi- cates that this award was predicated upon an implied contract theory whereby appellant employer imphedly ugreed to pay bis employees for all time spent on its behalf. Since the Fair Labor Standards Act contains ho provisions specifically requiring the payment of it would appear that this implied contract theory constitutes the only basis, if any, upon which the award could be’ upheld. *9 ‘breakdown time, However. a thorough ‘review of the record fails to disclose any evidence of sueh an implied contract. Respondent Riddle testified that he had never dis- cussed payment for breakdown time with appellant; and that he had always: been par! only for actual driving time, for fuel time, and for loading and un- loading. He also stated that the trucks were equipped with clocks which recorded the hours during which the truck was in motion and which stopped when the truck - 29 was at rest. He stated that he.was always paid for the time recorded. on-the dise and for ‘any additional time ‘spent in fueling, loading and unloading; that he never asked appellant to pay him for his breakdown, time ; _and that he continued to work for appellant knowing -that he would receive no compensation for this time. In view of this evidence, there is no justification for the award of breakdown time to respondent Riddle. Civil Code, section 1620, states that **An express con- tract is one, the terms of which are stated in words.” Civil Code, section 1621, provides that ‘‘An implied contract is one, the existence and terms of which are manifested by conduct.”’ It is settled that hoth types of contract are identical in that they require a meeting of the minds or an agreement. (Desny v. Wilder (1956) 46 Cal. 2d 715, 735.) The true implied contract consists of obligations arising from a mutual agree- ment and intent. to promise where the agreement and promise have not been expressed in words. (Silva v. - Providence Hospital of Oakland (1939) 14 Cal. 2d 762, 773.) In the instant case, there is a complete absence. of. any evidence indicating that appellant aud respondent Riddle ever arrived at an agreen: nt that appellant ~~ would pay respondent Riddle for his breakdown time. To the contrary, the evidence is strongly indicative of an implied agreement that ne such compensation would be paid: Under such circumstances, the award - of $511.92 to réspondent Riddle may not be upheld. Appellant next contends that the trial eourt’ failed to make findings of fact on ajl material issues raised. — 30 by the pleadings and evidence. Appellant asserts, more specifically, that the triai court failed to ‘make any finding that appellant was not exempt from the over- -time provisions.of the Fair Labor Standards Act; that the court failed to find the number of hours worked by each respondent in excess of 40 hours per week; and that the court failed to find whether appellant acted in good faith in failing to pay respondents time- and-a-half for the ‘overtime hours worked. The findings that appellant was subject to the Fair Labor Standards Act during.the years 1959 and 1960 and that respondents were entitled to recover time- and-a-half pay and liquidated damages for the over- time hours worked negate by necessary inference ap- pellant’s claim that it was exempt from.the wage and hour provisions of the Fair Labor Standards Act. (Kux v. Cal-West Lumber Corp. (1958) 162 Cal. App. 2d 500, 50%; Petersen v. Murphy (1943) 59 Cal. App. 2d 528, 534.) Since the court found the total amount of overtime pay due each respondent and since such findings are statements of ultimate fact (Nisbet v. Rhinehart (1935) 2 Cal. 2d 477, 482), the court was not required to make additional findings relative to evidentiary matters such as the number of overtime hours worked by. each respondent. (People v. Hecker (1960) 179 Cal. App. 2d 823, 832; Gross v. Needham (1960) 184 Cal. App., 2d 446, 463.) A finding that ap- . pellant did not act in-geod faith when it failed to pay respondents the required overtime compensation would appear: unnecessary in view of the finding that re- sponderts were entitled to liquidated damages. (Kux vy. Cal-West Lutiber Corp., supra; Petersen v.. > « ' . 31 Murphy, supra. In any event, appellant did not plead the defense of good faith and offered no evidence pertaining thereto, Appellant’s final contention is that the findings of fact, conclusions of law and judgment are unsupported by the evidence in two respects: (b) that respondents failed to prove the amount of overtime pay to which . they were entitled, and (2) that the judgment Was made tu run against E. C. Welch and J. D: Welch, Jr..as wéll as against appellant. The first of these arguments is Without merit, since. as above noted, | respondents supported their wage claims by time cards covering their total periods of employment during 1959 and 1960 and by itemized camputations based upon those time cards. ; Appellant ’s second contention raises a more SeTIOUS | problems An examination of the pleadings and pretrial conference orée > fails to disclose that the action was . brought against any other defendant than appellant: Merido Wood Products, Inc. At the commencement of the trial, however, respondents’ attorney suggested a > stipulation to the effect that appellant Mendo Wood Products, Ine. was in the process of dissolution and that. Jeff Welch and Elwood Welch had agreed that any judgment which might be entered in. the action — would be binding on them.: Counsel for appellant stated that he had given counsel for respondents a written guarantee but that he had no authority to file it in the action, At a subsequent stage in the proceed- ings. the subject was again broached, and appellant's . counsel réiterated that there was a euarantee, that 32 respondents’ counsel had a copy, that it covered aiiy judgment that might be rendered in the within action, but went no further. On December 21, 1962, jud&ment in favor of re- spondents was entered. against appellant Mendo W ood Products, Iné. Notice of appeal from this judgment was filed on behalf.of Mendo Wood Products, Ine., BE. C. Welch and J. D. Weich, Jv. The latter two in- dividuals, as above: neted, took no further steps to perfect their appeal. On March 15, 1963, the court entered a new judgment in order to eliminate: an award of interest which had inadvertently been in- ‘din the original judgment. The amended judg- -moent ran against defendants **Mendo Wood Products, Inc., E. C. Welch, and J. D. Welch, Jr.” Although this judgment is Hot a part of the record in the in- stant appeal, it is this Juagment which appellant. Mendo Wood Products, Ine. now attacks on the ground that it was errorieously made to run against the Welches. It is settled that an appellant may not on his appeal urge errors which affect only his co- se parties who do not appeal, and that such errors can be reviewed only at the instance of the parties affected thereby. (Estate of Nepogodin (1955) 134 Cal. App. 24 161, 173; Broadway Fed. ete. Loan Assoc, v. How- “ard (1955) 133 Cal. App. 2d 382, 400.) Since the Welches ‘chose to abandon their appeal, ‘their rights cammot be asserted by appellant Mendo Wood Prod- ucts, Ine. as a ground for reversal. e Responde nts’ motion to dismiss this appeal, on the evound that it was taken from a judgment which is ‘ ; 33 : nonappealable by virtue of having been superseded by a new and different judgment, is denied. In the present case, it is clear t@ us that the trial judge: never intended the judgment to inelude an award of interest. It was by inadvertence that the judge signed this judgment, prepared by respond- ents’ counsel, which awarded interést. Upon being brought to-the court’s attention, respondénts immedi- ately conceded the error and the matter was correctéd. It is settled that where the amendment merely cor.’ rects a clerical error and does not involve the exercise of judicial discretion, the original judgment remains effective and unimpaired and the amendment does not operate as a new judgment from which a new appeal may be taken. (O’Connor v. Skelton (1961) 195 Cal. App: 24 612, 614-615; MeConville v. Superior Court (1926) 78 Cal. App. 203,°207; George v. Bekins Van & Storage Co. (1948) 83 Cal. App. 2d 478, 480-481.) For the reasons above stated, the Judgment is miodt- fied by reducing the amount of damages awarded re- spondent Riddle from $4,783.46 to. $4,271.54. and as so modified, the judgement is affirmed. Shoemaker, P. J. We coneur: Agee, J. i &) Taylor, J. | Filed March 17, 1964. Lawrence R. Elkington. Clerk- . - o In the District Court of Appeal State of California | First Appellate District Drvision Two 1 Civil No@21,307 - Albert Mulder, Robert B. Riddle, and | Arthur O. Woodall, Plaintiffs and Respondents, | Mendo Wood Products, | ‘tac. E. C. | Welch and J. D. Welch, Jr., | Defendants and Appellants. j By THE Cotnt The Petition for a Rehearing filed in the above en- titled cause is hereby denied. Dated, April 16, 1964 Shoemaker, P. J. Filed April 16, 1964. - Lawrence R. Elkington, Clerk.: 35 Order due’ May 15, 1964 In the Supreme Court of the State-of California In Bank “Albert Mulder, Robert B. Riddle. and | Arthur 0. “Woodall, , Plaintiffs and Respondents, | | , VS. . Mende Wood Products, Inc., E. C. | Welch and J. D. Welch; Jr., | Defendants and Appe llants. + ORDER DENYING: HEARING AFTER JUDGMENT BY DISTRICT COURT OF APPEAL 1st District, Division 2, Civil No. 21, 307, Appellant’s petition for hearing DENIED. | Schauer, J., is of the opinion that . the petition should be granted. a Gibson, Chief Justice File d May 13, 1964. Lawrence R.E Ikington, Clerk. I. WILLIAM I. SULLIVAN, Clerk of thie Su- preme Court of the State of California, do hereby cer- 36. ~ tify that the preceding is a true copy of an order of this Court, as shown by the records of my office. Witness my hand and the seal of the Court this 13 day of May, A.D. 1964. i ~ Wilham I. Sullivan, Clerk, ; By G. E. Bishel, ‘aes . ~ Deputy Clerk. Filed May 13, 1964, Wiiliam I. Sullivan, Clerk. ( ws. a. a Appendix B EacW of the following federal statutes have been re- ferred to.in the foregoing petition, Each is extensive, but only small portions are relevant th the matters presented m the petition. This: Appendix Bo eoutame such relevant provisions in exact quotation form. . no CONSTITUTION OF ‘THE UNITED STATES _ (As printed in United States Code, Annotated) Section 8 Clause 3, Regulation of Commerce ‘The Congress shall have Power * * * Toe regniate. Commerce * * * mene, the several] states, * * * . Amendment XIV, Citizenship: Privileges and bm- ‘munities; Due Process; Equal 1 Protection; 2 ne forcement. (As printed in United States: Code, anne- tated.) Section 1: * * * No State shall make or enforce anv law which shall abridge ‘the pri. jHleges or im- mnnities of citizens of ie “nited: States; ner shall any State de “prive any person of dite, Hherty.: or property, without due process of Taw: ner deny to any person within -?ts jurisdietion the equal, protection of the laws. UNITED STATES ‘CODE yi ithe 28 U BAN Judiciary and Jadiciat Proc dure, Seetion 1257, in pertinent part: . Final juden rents or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by ‘the Supreme, Court as follows: \ hn. ‘ 42 permit -averaging of hours over two or more weeks. Thus, 1f an. employee works 30 hours one week and 50 hours the next, he must receive overtime compensation for the ten (10) overtime hours, worked in the second week, even though the average number of hours worked in the two weeks is 40.! See. 785.0(a) The Fair Laber Standards Act * * * also provides that no such employee may be employed for more than 40 hours a week with-- out receiving at least time and one-half of his recular rate of pay for the overtime hours. The amount of money an employee should receive can- hot be determined without knowing the number. -of hours he has worked.” . yee, . a ‘Also contained im Tithe 29, Labor; Code of Federal Regula- tions. Seetion 778.2 (e) and (d>., “Also contained in Title 29 Code of Federal Resulations, See-. thon 7800) until that seetion was renumbered as 785.1 by 26 ‘Vederal Regulations 7752, August 18, 1961, and the language Slightly ehanged, but not in such manner as to affect this litigation. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0015%3A3. Public record. Not legal advice.