On appeal from a judgment of the Monmouth County Court of Common Pleas.
For the defendants-appellants, James A. Coolahan.
For the plaintiff-respondent, Heuser & Heuser.
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment entered in Monmouth County Court of Common Pleas in favor of the plaintiff and against the defendants after a trial before a jury. By his suit plaintiff sought to recover from defendants compensation for overtime services performed by him while in their employ. The defendants are corporations connected by stock ownership and apparently plaintiff was uncertain as to which was his employer. The judgment is against both defendants but no point is made of this.
The suit was under a federal statute known as the Fair Labor Standards Act, 29 U.S.C., PP 201-219 (Supp. 1939 as amended). The act provides for minimum wages and maximum hours in certain industries (of which defendants' was one) and under its terms plaintiff was entitled to compensation at the rate of time and one-half for all hours worked in excess of forty-four hours per week from the time the act became effective. Plaintiff sought such compensation from the effective date of the act, October 24th, 1938, to May 15th, 1939, when his employment by defendants ceased.
Plaintiff testified that his agreement of hiring called for compensation at the rate of sixty-eight cents an hour. Exhibit P-2 consists of the payroll records of the defendants from the week ending November 18th, 1938, to the end of the employment. For the first of the weeks shown thereon plaintiff is noted as having worked forty-four hours and to have received the wage of $30. Thereafter no hours of work are noted for plaintiff and his wage each week was $30. He testified that during the period in question he worked 1,067 hours of overtime.
The defendants contended that the plaintiff was not subject to the terms of the statute because he occupied an executive position and was therefore exempt. As to this a question of fact was presented which was submitted to the jury and
resolved in favor of the plaintiff. The jury returned a verdict for the plaintiff for the full sum sought, and from the resulting judgment defendants appeal.
There was a rule to show cause allowed, heard and discharged in which the grounds were that the verdict "was a result (1) of a compromise by the jury (2) that said verdict was contrary to law and contrary to the charge of the court." Exceptions were reserved.
The first three points argued in appellant's brief are (1) that plaintiff was an executive and not subject to the act, (2) that plaintiff did not sustain the burden of proof required to establish his claim, and (3) the verdict was the result of a compromise. A statement of these points demonstrates that they involve solely questions of fact determined by the jury and do not point out errors of law committed by the trial judge. The plaintiff's evidence made out a case for the jury and it is not now urged that there was error in the refusal to nonsuit. There was no motion for a directed verdict. Furthermore, it would seem that these three points, having to do with the sufficiency of the evidence, were ...