UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT
June 21, 1947
THEREON F. ROGERS, PLAINTIFF-RESPONDENT,
FRANK SCHENKEL AND BERNARD SCHENKEL, CO-PARTNERS, DOING BUSINESS UNDER THE ASSUMED NAME OF GENERAL PLATING COMPANY, DEFENDANTS-APPELLANTS.
Before CHASE, CLARK and FRANK, Circuit Judges.
After a trial without a jury, the judge made and filed the following:
"Findings of Fact
"1. Plaintiff performed work in interstate commerce for the defendants between January 25th, 1944 and January 13th, 1945. His services were those of a helper in doing plating work. He was inexperienced and needed constant supervision by a plater in the performance of his work. During the first six months of his work he did even less than the usual helper customarily does.
"2. The arrangement was a most unusual one. Plaintiff and Frank Schenkel, one of the defendants, had been friends over a period of years. The plaintiff had a 4-F classification under the Selective Service Law. He was 38 years old in January 1944. He had been unemployed since about 1930, excepting a short period during the election campaign in 1938. He felt that it would be advisable to perform some service to further the war effort.
"3. The defendant, Frank Schenkel, was hard pressed for help. He sought the services of the defendant. No arrangement was made regarding compensation at any time during the period which plaintiff worked, nor since that time.
"4. The plaintiff customarily changed to his working clothes, not in the locker room with the employees, but in the office of the defendant, Frank Schenkel. He usually took his supper during working hours with Frank Schenkel and was driven home by Frank Schenkel each night from work.
"5. On several occasions during the work period the defendant Frank Schenkel, asked the plaintiff to turn in a weekly report of time worked, but the plaintiff on each occasion stated that his services were voluntary, and that he had no reason to want any wages and would not accept any wages in any form.
"6. The plaintiff lived with his mother and had independent means and did not rely on wages for his rupport. He intended that his services were to be rendered without compensation.
"7. The plaintiff kept an account of the time that he worked, but at no time until the last week of his employment, did he ever exhibit that account to the defendants, or to any one in their employ, nor did he inform them that he was keeping an account of his hours of work. The defendants kept no record of the hours worked.
"8.The plaintiff refused to be placed upon the defendant's payroll at various times because he did not wish to be listed as an employee. He at no time presented to the defendants his Social Security number.
"9. He was listed on the personnel registration roll prepared by official inspectors of election for the year 1944 as having no business connection and he personally signed the roll.
"10. The plaintiff worked 1631 hours. He worked no overtime. The reasonable value of his services was $.65 per hour or a total of $1060.15. He has been paid nothing on account.
"In view of the provisions of the Fair Labor Standards Act, I am constrained to make the following
"Conclusions of Law
"1. The plaintiff was an employee within the meaning of that term as used in The Fair Labor Standards Act because the defendants suffered or permitted him to perform work for them.
"2. The defendants have violated Section 206 of the Fair Labor Standards Act in that they have not paid to the plaintiff the wages provided for by Section 206, during the period the plaintiff was permitted by them to work.
"3. The fact that the plaintiff intended his service to be voluntary and to be rendered without compensation has no legal effect to counter-act the mandatory provisions of Section 206.
"4. The plaintiff is entitled to judgment in the amount of $1060.15, for his unpaid compensation and in addition thereto an equal amount as liquidated damages, pursuant to Section 216. In addition thereto as provided in Section 216 there is allowed the sum of $250, which is deemed to be a reasonable attorney's fee, together with costs."
The judge accordingly entered a judgment from which defendants appeal.
FRANK, C.J.: There is evidence, consisting in considerable part of oral testimony, which amply supports the judge's findings. But we cannot agree with his legal conclusions. Although they may have seemed to be justified when made, subsequent decisions of the Supreme Court compel reversal. See Walling v. Portland Terminal Co., 330 U.S. 148; Walling v. Nashville, Chattanooga & St. Louis Ry., 330 U.S. 158.*fn1