obligated to reinstate the discharged employees. The recovery of the wages lost during said period of discharge was purely incidental to the equitable relief, which in the first instance was demanded. I believe, therefore, that the decision of the Supreme Court of the United States in the proceeding before the National Labor Relations Board is distinguishable from the facts which are presented in the question now before this Court.
Section 7 of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1 et seq., 15 note, provides a remedy not dissimilar in nature to that proceeding by Section 16(b) of the Fair Labor Standards Act. There a right of action is given to any person who is injured in his business or property by reason of anything forbidden in the Anti-Trust Laws 'And shall recover three fold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee'.
A long line of decisions hold that a suit in equity does not lie under this section; that an action thereunder is an action at law as to which the parties are entitled to a jury trial by virtue of the Seventh Amendment to the Constitution. Moore et al. v. Backus et al., 7 Cir., 78 F.2d 571, 101 A.L.R. 379, Certiorari Denied 296 U.S. 640, 56 S. Ct. 173, 80 L. Ed. 455; Hansen Packing Co. v. Swift & Co., D.C., 27 F.Supp. 364; Farmers Co-op. Oil Co. v. Socony-Vacuum Co., Inc., D.C., 43 F.Supp. 735.
It is of the essence, in determining whether or not a jury trial should be granted, to make inquiry as to what the plaintiffs' bill of complaint seeks and whether it is, in its nature, either equitable or legal. This is true for the right to a jury trial would depend upon the facts stated in the complaint. I think a fair examination of the pleadings will disclose that the only relief claimed is for a money judgment, together with liquidated damages and attorneys' fees, as provided by the Act. There is no equitable relief asked for in any way whatsoever.
If the issues tendered by the pleadings are purely legal, the parties are entitled to a jury trial as of right under Rule 38(a) and demanded under Rule 38(a) and (b). Hargrove v. American Cent. Ins. Co., 10 Cir., 125 F.2d 225; Schoenthal v. Irving Trust Co., 287 U.S. 92, 95, 53 S. Ct. 50, 77 L. Ed. 185.
Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.S.C.following section 723c, abolishes any distinction between law and equity. Conn v. Kohlemann, D.C., 2 F.R.D. 514.
The distinction between law and equity, abolished by the new rules, is in procedure and not one between remedies, and a distinction still remains between jury actions and nonjury actions. This remains in the same manner as existed before the adoption of the new rules what was an action at law before their adoption under the provisions of the Seventh Amendment still remains a jury action. Morre's Federal Practice, Vol. 3, p. 3004, et seq.; Bellavance v. Plastic-Craft Novelty Co. et al., D.C., 30 F.Supp. 37.
The right of a jury trial in civil cases at common law is the basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment to the United States Constitution. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute should be jealously guarded by the courts.
Thus, to determine the validity of the plaintiffs' demand for a jury trial, inquiry must be made into the status of the case had it arisen when the formal distinctions between an action at law and a suit in equity still existed. It has been often said that the trial by jury is a fundamental guarantee of the rights and liberty of the people, and subsequently every reasonable presumption should be indulged in against its waiver.
The guarantee under the Seventh Amendment applies only to suits of such character as may be maintainable under common law at the time the amendment was adopted, and under the Sixth Amendment only those proceedings technically criminal in character. Farmers' Livestock Commission Co. et al. v. United States et al., D.C., 54 F.2d 375, 378; Capital Traction Co. v. Hof, 174 U.S. 1, 19 S. Ct. 580, 43 L. Ed. 873; United States v. Zucker, 161 U.S. 475, 16 S. Ct. 641, 40 L. Ed. 777; Trial by Jury, 45 Yale Law Journal 1022; 20 Texas Law Review, 427.
The determination of the mode of trial, whether by jury or otherwise, must be pursuant to and in accordance with established principles of common law, and inquiry must be made into the nature of the cause of action and appropriate remedy as they existed under common law. If the cause of action is legal in nature and formerly remedial in a court of law, the right of trial by jury cannot be denied; but, if the cause of action is equitable in nature and formerly remedial in a court of equity, trial by jury should not be allowed. Berman v. Automobile Insurance Co. of Hartford, Conn., D.C., 2 F.R.D. 94.
No problem is presented in assimilating the computation of overtime for employees under contract on a fixed weekly wage whether the wages are fixed on an hourly or weekly wage. Overnight Motor Transportation Co., Inc. v. Missel, 316 U.S. 572, 579, 580, 62 S. Ct. 1216, 86 L. Ed. 1682.
As a result thereof, the mathematical calculations can be had through the means of a pre-trial conference or through invoking other applicable remedies provided by the Federal Rules of Civil Procedure. As a result thereof, no confusion or unnecessary burden would rest on the part of the jury. O'Malley et al. v. Chrysler Corporation, 7 Cir., 160 F.2d 35.
The questions for adjudication in an action under the Fair Labor Standards Act are:
a. That each of the plaintiffs was employed by the defendant.
b. That each of the plaintiffs was engaged in the production of goods for commerce.
c. That the labor or services rendered was concerned in the process or occupation necessary to the production of goods for commerce.
d. That each of the plaintiffs has not received compensation for overtime as provided by the Act. Ashenford v. Yukon & Sons, 237 Mo.App. 1241, 172 S.W.2d 881; Burke et al. v. Mesta Machine Co., D.C.W.D. Pa., 5 F.R.D. 134; Warren Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S. Ct. 125, 87 L. Ed. 83.
The reference to the court in Section 216 of the Fair Labor Standards Act that 'The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow reasonable attorney's fees to be paid by the defendant, and costs of the action,' I believe includes and means the court and jury, if the case is tried before a jury. Acme Lumber Co., Inc. v. Shaw, 243 Ala. 421, 10 So.2d 285; Ashenford v. Yukon & Sons, 237 Mo.App. 1241, 172 S.W.2d 881.
The Court is, therefore, authorized, after verdict of the jury, to make an order allowing attorneys' fees pursuant to motion therefor and after hearing evidence on such motion. Edwards v. South Side Auto Parts Co., Mo. App., 180 S.W.2d 1015.
These cases disclose nothing more than a money judgment which is sought against each of the defendants based upon the provisions of the Fair Labor Standards Act. No equitable relief is sought. Notwithstanding that its virtue is now hidden behind the camouflage of a 'Civil action'; still there it stands in the strength and dignity of pure logic, an action in assumpsit, on contract, at law.
Although neither the Fair Labor Standards Act nor any other law of the United States grants a right to a trial by jury, since this is a claim for money damages, I believe that under the provisions of the Seventh Amendment to the Constitution, the right to a trial by jury should not be denied, there being no claim for equitable relief in any respect in this proceeding.
Therefore, the motion to remove the above entitled cases from the jury trial list is refused.