Before SPARKS, Chief Judge, and KERNER, Circuit Judge and BRIGGLE, District Judge.
This is an appeal from a Judgment of the District Court in favor of the defending-employer on the claim of appellant for $865.80 unpaid overtime compensation plus an equal sum for liquidated damages based upon Section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b).
The case was tried by the Court without a jury, and at the conclusion of appellant's evidence, and without any evidence being offered by appellee, the Court found among other facts the following:
"That appellant was employed in interstate commerce by the appellee as a working foreman in a freight car repair and building yard from about December 8, 1942 to August 7, 1943.
"That during the period from December 8, 1942 to August 7, 1943, the plaintiff's sole duty consisted of the management of defendant's South Chicago plant, the establishment in which he was employed, and a customarily recognized department of defendant's business.
"That plaintiff customarily and regularly Directed the work of from 25 to 30 employees at defendant's South Chicago plant.
"That plaintiff had the authority to hire and fire other employees and that plaintiff exercised such authority by hiring, during the period of his employment, at least two employees and firing at least two employees.
"That plaintiff customarily and regularly exercised discretionary powers in the management of defendant's South Chicago plant.
"That plaintiff was in sole charge of defendant's South Chicago plant, an independent and physically separated branch establishment, and in any even plaintiff's hours of work of the same nature as that performed by non-exempt employees did not exceed 20% of the number of hours worked in the workweek by the non-exempt employees under his direction."
Appellant contends that at close of plaintiff's case his evidence should have been taken in its aspect most favorable to him, together with all reasonable inferences and, thus construed, that the evidence does not support the above findings of the Court. His view is that the Court should have limited its consideration of the evidence to the narrow limits applicable to the consideration of the evidence in a jury case upon a motion by the defendant for a directed verdict at the close of the plaintiff's case.
Appellee takes the position, in which we concur, that under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., upon a motion to dismiss at the close of the plaintiff's case, the trial court determines the facts without being thus limited and must weigh and evaluate the evidence.
In this case the trial court was the trier of the facts, and in considering the evidence was not bound to view it in a light most favorable to the plaintiff, with all attendant favorable presumptions, but was bound to take an unbiased view of all the evidence, direct and circumstantial, and accord it such weight as he believed it entitled to receive. Rule 41(b), Federal Rules Civil Procedure, supra; Gary Theatre Co. v. Columbia Pictures Corporation, 7 Cir., 1941, 120 F.2d 891, 892; Young v. United States, 9 Cir., 1940, 111 F.2d 823, 825; Bach v. Friden Calculating Mach. Co., 6 Cir., 1945, 148 F.2d 407, 411.
A study of the record discloses that there was ample basis in the evidence, with a single exception, for the findings of the Court. That exception relates to the Court's finding that plaintiff's hours of work of the same nature as non-exempt employees did not exceed 20% of the number of hours worked by such non-exempt employees. We find nothing to contradict, discredit or impeach the plaintiff's testimony that he worked in excess of 20% of his employed time on tasks of the same nature as those performed by non-exempt employees under his supervision. The evidence shows plaintiff to have been a hard working, courageous employee, never afraid to turn his hand to a menial task when the best interest of his employer seemed to demand it. This, however, is not a controlling fact in our case because plaintiff was in sole charge of an independent branch of defendant's business. With this single exception, the findings of fact were supported by the evidence and may not be ...