Searles v. Miller Dairy Products Co.

176 S.W.2d 257, 296 Ky. 150, 1943 Ky. LEXIS 116

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: December 10, 1943
• Status: Published

Opinion

Opinion op the Court by

Chief Justice Fulton—

Affirming.

This action was filed by appellant, Searles, a truck driver for a private carrier of property by motor vehicle, against the appellee, his employer, to recover overtime compensation alleged to be due under the Fair Labor Standards Act of 1938, 29 U.S.C.A. sec. 201 et seq. The trial court sustained a demurrer to the petition and dismissed it and the appeal is from that judgment.

Tbe sole question presented is whether employees of private carriers are within the Fair Labor Standards Act. It is insisted for the appellant that they are and chief reliance is placed on an interpretative bulletin of the Wage and Hour Division of the Department of Labor and on Bayley et al. v. Southland Gasoline Co., 8 Cir., 131 F. (2d) 412, so holding.

Since the briefs were filed the Supreme Court, in Southland Gasoline Co. v. Bayley, 317 U. S. 623, 63 S. Ct. 526, 87 L. Ed. —, has reversed the decision of the 8th Circuit and held that employees of such private carriers are not within the act. Since the decision construes a federal statute, it is binding on us.

Affirmed.