The record discloses that the defendant, employer of plaintiff, was operating a lumber mill and was engaged in the production of goods for commerce, under the Fair Labor Standards Act of 1938.
*182The court below charged the jury as follows (to which plaintiff excepted and assigned error): “Now, gentlemen, when you come to this issue and it is given to you and you retire to your room, I want to say to you that the burden of the issue is upon the plaintiff to satisfy you from the evidence and by its greater weight. The case has heretofore been to the Supreme Court of North Carolina and has been reported in the 218th volume at pages 184 and 193, both inclusive, and that when it went to the Supreme Court the first time our Supreme Court said on page 192 thereof: 'That feeding water to the boilers was necessary in the production of goods.’ Therefore it concerns you only to find as a fact, the burden of the issue being upon the plaintiff to so satisfy you from the evidence and by its greater weight as to whether or not Mr. Hart did actually, as a part of his employment, feed the water to the boilers during the evening, and the court charges you if you find from the evidence and by its greater weight that under the terms of the employment between the plaintiff and the defendant, the plaintiff, in addition to his duties as watchman, was required to keep water in the boilers, then it will be your duty to answer the first issue 'Yes.’ If you do not so find, gentlemen, it will be your duty to answer it 'No.’ ” The iury answered the issue “No.”
We think the charge correct under the opinion heretofore rendered in this case. We said, at p. 192 : “The present ease we think comes within the provisions of the Fair Labor Standards Act, as the duties of this night watchman were more than that ordinarily required of one so termed. The duty of plaintiff was to beep water in the boiler so that in the morning steam could easily be available. If the boilers were not kept filled up at night, they would have burned dry and that would have ruined them and made them unfit for use. It is clearly apparent that the man who attended to the boiler in the day was engaged in 'occupation necessary to the production thereof’ of goods. Why should not the man at night whose duty it was to keep the boiler fit for service in the production of goods receive the same benefit accorded men directly at work producing these goods ? His duties were more than a night watchman, he fed water to the boilers which were necessary in the production of goods.”
On the trial in the court below the evidence, pro and con, was conflicting. The jury has decided this question of fact for the defendant.
The plaintiff requested the court below to charge the jury: “If you find from the evidence and by its greater weight that plaintiff was employed by defendant as a watchman of his mill, then it would be your duty to answer the first issue 'Yes.’ ” This request was refused and in this we can see no error.
*183Tbe language of tbe Act to be construed, 29 U. S. 0. A., sec. 203 (j), being sec. 3 (j), of tbe Act, reads as follows: “For tbe purpose of this Act an employee shall be deemed to bave been engaged in tbe production of goods, if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to tbe production thereof in any State.” We think it would be doing violence to tbe language of the Act to give it such elasticity as contended by plaintiff, that an ordinary night watchman came under tbe provisions of tbe Act. Our former decision did not so bold. There is a sharp conflict of decisions over tbe question, but whatever may be our sympathies we can only construe tbe law as written. None of tbe exceptions and assignments of error made by plaintiff can be sustained.
Tbe Fair Labor Standards Act of 1938 on another aspect is fully and ably discussed in Crompton v. Baker, ante, 52.
For tbe reasons given, we see in tbe judgment of tbe court below
No error.