Arrington v. Public Service Co. of North Carolina

CLARK, Judge. Those facts to which plaintiff does not except are presumed supported by the evidence. They provide some of the illuminating circumstances surrounding the issue to be decided. Those findings to which plaintiff does except are conclusive on appeal if there is. evidence to support them, just as would a verdict of the jury; and this is so even though the evidence might sustain findings to the contrary. Higgins v. Builders and Finance, Inc., 20 N.C. App. 1, 200 S.E. 2d 397 (1973). We do not deem it necessary to treat herein each contested finding of the trial court. Some of the evidence is conflicting, but summarily the evidence favorable to defendant shows, among other things, that plaintiff and other servicemen placed numbers ■ other than their own in the answering device; that plaintiff, while “on call”, did yard work around the house, cared for his horses and ran personal errands; and that the area manager instructed them to try to stay near a phone and if they left home to use back-up numbers or use alternate numbers. A careful consideration of all the evidence reveals that all of the findings of fact by the trial court are supported. Turning now to .the paintiff’s contention that the findings of fact do not support the conclusions of law, whether “on call” time is time waiting to be engaged or is time wherein the employee is engaged to wait is a question which must be resolved upon appropriate findings by the trial court. “This involves scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of, the working agreement by conduct, consideration of the nature of [636] the service and its relation to the waiting time, and all of the surrounding circumstances.” Skidmore v. Swift & Co., 323 U.S. 134, 137, 65 S.Ct. 161, 163, 89 L.Ed. 124, 128 (1944). The administrator under the Fair Labor Standards Act has ruled that “ [a] n employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.” 29 C.F.R. 785.17 (1971). For an application of the above principle, see Barker v. Georgia Power and Light Company, 5 C.C.H., Labor Cases, Par. 61,095 (M.D. Ga. 1942). In that case, the facts as found were very similar to those in the present case and the district court held that the public utility linemen, after regular working hours, were standing by waiting to go to work and were not on duty performing actual work for the utility. We find that the trial court carefully considered all of the pertinent circumstances and correctly concluded on findings of fact supported by the evidence that the plaintiff was waiting to be engaged and, therefore, was not entitled to compensation. Consequently, in the trial below, we find No error. Chief Judge Brock and Judge Britt concur.