and amount of work performed. * * *
'* * * Where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. * * *
'The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of § 11(c) of the Act. And even where the lack of accurate records grows out of a bona fide mistake as to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances. Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages. That rule applies only to situations where the fact of damage is itself uncertain. But here we are assuming that the employee has proved that he has performed work and has not been paid in accordance with the statute. The damage is therefore certain. The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. In such a case 'it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.' * * * It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages.' (Emphasis supplied.)
See also Foremost Dairies, Inc., v. Ivey, 5 Cir., 1953, 204 F.2d 186, 188; Handler v. Thrasher, 10 Cir.1951, 191 F.2d 120; Michigan Window Cleaning Co. v. Martino, 6 Cir., 1949, 173 F.2d 466, 468; Porter v. Poindexter, 10 Cir., 1947, 158 F.2d 759, 761; Murdick v. Cities Service Oil Co., 10 Cir., 1944, 145 F.2d 231; George Lawley & Son Corp. v. South, 1 Cir., 140 F.2d 339, 441, 151 A.L.R. 1081, certiorari denied, 1944, 322 U.S. 746, 64 S. Ct. 1156, 88 L. Ed. 1578; Joseph v. Ray, 10 Cir., 1943, 139 F.2d 409, 411-412; Sikes v. Williams Lumber Co., D.C.E.D.La.1954, 123 F.Supp. 853; Neal v. Braughton, D.C.W.D.Ark.1953, 111 F.Supp. 775; Rankin v. Jonathan Logan, Inc., D.C.D.N.J.1951, 98 F.Supp. 1, 3-4; Freeman v. Blake Co., D.C.Mass.1949, 84 F.Supp. 700; Cameron v. Chichagof Min. Co., D.C.Alaska 1948, 82 F.Supp. 665, 668-669; Bloch v. Bell, D.C.W.D.Ky.1945, 63 F.Supp. 863, 865-66, modified on other grounds, 6 Cir., 1946, 152 F.2d 962.
The statement prepared by plaintiff in this case constituted 'the most accurate basis possible under the circumstances' for the calculation of plaintiff's damages. Anderson v. Mt. Clemens Pottery Co., supra, 328 U.S. at page 688, 66 S. Ct. 1187. Of course, the Anderson opinion precludes this court's following the expressions of judicial attitudes inconsistent therewith which may appear in earlier cases, e.g. Mornford v. Andrews, supra; Jax Beer Co. v. Redfern, 5 Cir.1941, 124 F.2d 172, 175; Collins v. Burton-Dixie Corp., supra; Spier v. Gulf Coast Beverages, Inc., supra.
The proper determination of whether any given evidence is based upon estimation and recollection on the one hand, or upon speculation and conjecture on the other hand, depends primarily upon factual considerations including, in this case, the credibility of the plaintiff. The jury was properly instructed to make that determination with respect to the oral testimony of plaintiff and his witnesses and the statement prepared by plaintiff. This court may not ignore the mandate of the Anderson case by drawing fine distinctions as a matter of law between estimates and speculations.
Plaintiff's written statement constituted his present testimony as to his recollection, on an estimated basis, of the number of hours he worked during the period in question. It was presented in written form as a matter of convenience for the reason that no trier of the facts could be expected to grasp and retain the information included in the statement if it had been presented merely in oral testimony. To have superimposed the fallibility of the jurors' memories upon that of plaintiff's memory would have been to compound the conceded inaccuracies of plaintiff's exhibit. In the opinion of the court, the use made of plaintiff's statement was proper. See 32 C.J.S., Evidence, § 698.
For the foregoing reasons, defendant's motion for a new trial will be denied.
The court is satisfied from the evidence presented at the trial that defendant's failure to pay overtime wages to plaintiff was in good faith, that defendant had reasonable grounds for believing that its failure to pay such wages was not unlawful, and that no liquidated damages should be awarded. See 61 Stat. 89, § 11 (1947), 29 U.S.C.A. § 260.
An attorney's fee to be paid by defendant shall be allowed in the amount of $ 1,000. Fair Labor Standards Act of 1938, as amended, § 16(b), 29 U.S.C.A. § 216(b).
An appropriate order is entered.
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