Adams v. Long & Turner Const. Co., No. 20736.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtDew
Citation202 S.W.2d 112
PartiesARCHIBALD C. ADAMS, APPELLANT, v. JOHN C. LONG AND ROBERT W. LONG CO-PARTNERS DOING BUSINESS AS LONG CONSTRUCTION COMPANY, AND TURNER CONSTRUCTION COMPANY, A CORPORATION, JOINT CONTRACTING PARTIES, RESPONDENTS.
Decision Date03 March 1947
Docket NumberNo. 20736.
202 S.W.2d 112
ARCHIBALD C. ADAMS, APPELLANT,
v.
JOHN C. LONG AND ROBERT W. LONG CO-PARTNERS DOING BUSINESS AS LONG CONSTRUCTION COMPANY, AND TURNER CONSTRUCTION COMPANY, A CORPORATION, JOINT CONTRACTING PARTIES, RESPONDENTS.
No. 20736.
Kansas City Court of Appeals. Missouri.
Opinion delivered March 3, 1947.

[202 S.W.2d 113]

Appeal from Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.

AFFIRMED.

[202 S.W.2d 114]

E. Robert Klein, Terrell & Slaughter, Charles W. Hess and James W. Taylor for appellant.

(1) Plaintiff was engaged in interstate commerce and his services were so related to the transportation and movement of goods in commerce and were so essential thereto as to become a part thereof within the meaning of the Fair Labor Standards Act of 1938. Wage & Hour Manual, 1944, P. 87 (published by Bureau of National Affairs); Tagler v. F.D. Carpenter Coal Co., (D.C. Ill., 1943) 57 F. Supp. 314; Mid-Continent Petroleum Corporation v. Keen, (8 Cir., 1946) ... F. (2d)... ., 6 Wage & Hour Cases 338, affirming Keen v. Mid-Continent Petroleum Corporation, (D.C.N.D. Iowa) 63 F. Supp. 120; Barrick v. South Chicago Coal & Dock Co., (7 Cir., 1945) 149 F. (2d) 960; Brand v. McWilliams Dredging Co., (D.C.E.D.N.Y., 1946), 9 Wage Hour Reports 144; Clyde v. Broderick, (10 Cir., 1944) 144 F. (2d) 348; Crabb v. Welden Bros. et al., (D.C.S.D. Iowa, 1946) 65 F. Supp. 369; Cudahy Packing Co. v. Bazanos, (1946) 245 Ala. 73, 15 So. (2d) 720; Roland Electric Co. v. Walling, (1946)... . U.S... . ., 66 S. Ct. 413; Walling v. Consumers Co., (7 Cir., 1945) 149 F. (2d) 626; Walling v. Goldblatt Brothers, (7 Cir., 1942) 128 F. (2d) 778, cert. den. 318 U.S. 757, 63 S. Ct. 528; Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S. Ct. 332; Walling v. Paramount Richards Theatres, (D.C.E.D. La., 1945) 61 F. Supp. 290; West Kentucky Coal Co. v. Walling, (6 Cir., 1946) 153 F. (2d) 582; Fair Labor Standards Act of 1938, (52 Stat. 1060, 29 U.S.C.A. 201 et seq.). (2) Plaintiff was engaged in a process and occupation necessary to the subsequent production of goods for commerce and his services substantially affected such production, and plaintiff was therefore engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act of 1938. Warren-Bradshaw Drilling Company v. Hall, (1942) 317 U.S. 88, 63 S. Ct. 125; E.C. Schroeder Co. v. Clifton, (10 Cir., 1946) 153 F. (2d) 385; Clyde v. Broderick, (10 Cir., 1944) 144 F. (2d) 348; Bowie v. Gonzalez, (1 Cir., 1941) 117 F. (2d) 11; Culver v. Bell & Loffland, Inc., (9 Cir., 1945) 146 F. (2d) 29; Walling v. Amidon, (10 Cir., 1946) 153 F. (2d) 159; Wage & Hour Manual, 1944, p. 85 (published by Bureau of National Affairs); Fair Labor Standards Act of 1938, (52 Stat. 1060, 29 U.S.C.A. 201, et seq.). (3) Plaintiff is entitled to recover, as third party beneficiary under the contract between defendants and Defense Plant Corporation, for services performed on the seventh consecutive day of any work-week subsequent to October 1, 1942, the effective date of Executive Order 9240, it having been conceded by defendants that plaintiff's services were related to the prosecution of the war. Crabb v. Weldon Brothers, 65 F. Supp. 369; Crowe v. Knapp, (Mo.) 50 S.W. (2d) 995; Jenkins v. Collard, 145 U.S. 546, 12 S. Ct. 868; Givens v. Zerbst, 255 U.S. 11, 41 S. Ct. 227; Taylor v. Western Union Telegraph Co., 207 Mo. App. 145, 231 S.W. 78; Executive Order 9240, September 9, 1942. (4) The Judgment of the Trial Court should be reversed and the case remanded with directions to the Trial Court to enter judgment for plaintiff. Fair Labor Standards Act of 1938, 52 Stat. 1060 et seq.; 29 U.S.C.A. 201 et seq; Executive Order 9240, September 9, 1942; Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S. Ct. 494; Kirschbaum v. Walling, 316 U.S. 517, 62 S. Ct. 1116. McLeod v. Threlkeld, 319 U.S. 491, 63 S. Ct. 1248; U.S.C.A., Title 29, Secs. 206, 207, 208. (5) Respondents' Cases under "Engaged in Commerce" Distinguished. Noonan v. Fruco Construction Co., 140 F. (2d) 633; Brue et al. v. J. Rich Steers, Inc., 60 F. Supp. 668; Scott v. Ford, Bacon & Davis, Inc., 55 F. Supp. 982; Collins v. Ford, Bacon & Davis, Inc., 66 F. Supp. 424; Walling v. McCrady Construction Co., 156 F. (2d) 932; Joseph J.A. Kelly v. Ford, Bacon and Davis, Inc., No. 9211 (C.C.A. 3); Baloc et al. v. Foley Brothers, Inc., 11 Labor Cases (C.C.H. Labor Law Service) 63414 (D.C. Minn., 1946); Deal v. Leonard, 11 Labor Cases (C.C.H. Labor Law Service) 63407 (Ark. Sup., 1946); Walling v. Haile Gold Mines, 136 F. (2d) 104 (C.C.A. 4); Fox v. Summit King Mines, 143 F. (2d) 926 (C.C.A. 9); Clyde v. Broderick, 144 F. (2d) 348 (C.C.A. 10); Walling v. Patton Tulley, 134 F. (2d) 945 (C.C. A. 6); Umtun v. Day & Zimmerman, 16 N.W. (2d) 258 (S. Ct. Iowa); Timberlake v. Day & Zimmerman, 49 F. Supp. 28 (S.D. Iowa).

(6) Respondents' cases on "plaintiff not engaged in the production of goods for commerce" distinguished. Walling, Adm., v. McCrady Construction Co., 156 F. (2d) 932 (C.C.A. 3); Bravis v. Chicago, M. & St. P. Ry. Co., 217 Fed. 234; New York Central Railroad Co. v. Sarah White, 243 U.S. 188, 37 S. Ct. 247; Raymond v. Chicago, Milwaukee & St. Paul Ry. Co., 243 U.S. 43, 37 S. Ct. 268; Damon v. Ford, Bacon & Davis, Inc., 62 F. Supp. 446; Muldowney v. Seaberg Elevator Co., 39 F. Supp. 275; Dollar v. Caddo River Lumber Co., 43 F. Supp. 822; Barbe v. Cummins Construction Co., (D.C. Md.) 49 F. Supp. 168. (7) Appellant's claim under Executive Order 9240. Perkins et al. v. Lukins Steel Co., 310 U.S. 113, 60 S. Ct. 869; Steiner v. Pleasanton Constructors, 49 N.Y. Supp. (2d) 42; Crabb v. Weldon, 65 F. Supp. 369.

H.M. Langworthy, Clyde J. Linde and Robert B. Langworthy, for respondents. Langworthy, Matz and Linde, of counsel.

(1) Plaintiff, engaged as a clerk in the office of a field superintendent in the original construction of a war plant, was not engaged in commerce or in the production of goods for commerce within the meaning of the Fair Labor Standards Act. Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S. Ct. 494; Kirschbaum v. Walling, 316 U.S. 517, 62 S. Ct. 116; McLeod v. Threlkeld, 319 U.S. 491, 63 St. Ct. 1248; Pederson v. Delaware, L. & W.R. Co., 229 U.S. 146, 33 S. Ct. 648; Walling v. Consumers Co., 149 F. (2d) 626; Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S. Ct. 332; Brue et al. v. J. Rich Steers, Inc., 60 F. Supp. 668; Scott v. Ford, Bacon & Davis, Inc., 55 F. Supp. 982; Noonan v. Fruco Construction Co., 140 F. (2d) 663, affirming 50 F. Supp. 432; Collins v. Ford, Bacon & Davis, 66 F. Supp. 424; John J. Baloc et al. v. Foley Brothers, Inc., 11 Labor Cases (C.C.H. Labor Law Service) par. 63,414; Deal v. Leonard, 11 Labor Coses (C.C.H. Labor Law Service) par. 63,407; Damon v. Ford, Bacon & Davis, Inc., 62 F. Supp. 446; Muldowney v. Seaberg Elevator Co., 39 F. Supp. 275; Dollar v. Caddo River Lumber Co., 43 F. Supp. 822; Barbe v. Cummins Construction Co., 49 F. Supp. 168; Bravis v. Chicago, M. & St. P. Ry. Co., 217 F. 234; New York Central Railroad Co. v. Sarah White, 243 U.S. 188, 37 S. Ct. 247; Raymond v. Chicago, Milwaukee & St. Paul Ry. Co., 243 U.S. 43, 37 S. Ct. 268; 29 U.S.C.A., Sec. 201; 52 Stat. 1060.

(2) The court correctly held that the plaintiff was not entitled to recover a premium wage for doubletime compensation under Executive Order 9240. Perkins et al. v. Lukens Steel Co. et al., 310 U.S. 113, 60 S. Ct. 869; Steiner v. Pleasantville Constructors, 49 N.Y.S. (2d) 42 (New York Supreme Court, Appellate Term); Matejka v. General Bronze Corp., 9 C.C.H. Labor Cases, par. 62.632; Interpretative Bulletin No. 1, issued by the Secretary of Labor, released February 17, 1943; 40 U.S.C.A. Sec. 326; Executive Order 9240, following 40 U.S.C.A. Sec. 326; 50 U.S.C.A. Appen. 961, 965; Wartime Rules on Premium Wage Rates, by Bureau of National Affairs Washington; Edinger et al. v. Kratzer, 175 S.W. (2d) 807 (Mo.); Niehaus v. Madden et al., 155 S.W. (2d) 141 (Mo.).

DEW, J.


The plaintiff, appellant here, brought suit in two counts, in the first of which he sought to recover unpaid compensation, liquidated damages, and attorney's fee under the Fair Labor Standards Act of 1938, and in the second count to recover double time pay under Executive Order 9240, as amended, issued by the President of the United States, for work performed on the seventh days of his workweeks. Trial by jury was waived. Judgment was rendered for defendant on both counts, from which plaintiff has appealed.

This action grows out of services performed by plaintiff to the defendants, who were engaged in the original construction of a large war plant known as the Pratt & Whitney plant, located on the out-skirts of Kansas City. On July 6, 1942, defendants, as joint contractors, had entered into a cost-plus-fee contract for the original construction of this plant with the United Aircraft Corporation of Missouri (whose name was later changed to Pratt & Whitney Aircraft Corporation of Missouri), acting for and on behalf of the Defense Plant Corporation created under the Reconstruction Finance Corporation Act, and all the work performed thereunder related to the prosecution of the war. Wage schedules and classifications were thereupon agreed to and approved. Plaintiff's period of employment by the defendants dated from October 27, 1942 to May 1, 1943. The number of hours worked by the plaintiff and the dates thereof are not controverted.

The theory of plaintiff's Count 1 is that in the performance of his work he was, within the meaning of the Fair Labor Standards Act of 1938, engaged in interstate commerce, or that the same was so related to interstate commerce as to become a part thereof, or that he was engaged in a process or occupation necessary to the production of goods for commerce, or that his services substantially affected the production of goods for commerce.

The substance of Count 2 is that plaintiff is...

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4 practice notes
  • Hartmaier v. Long, No. 40983
    • United States
    • Missouri Supreme Court
    • March 12, 1951
    ...is pointed out by the Kansas City Court of Appeals in a case against Long-Turner, viz.: Adams v. Long, 239 Mo.App.[361 Mo. 1163] 1227, 202 S.W.2d 112, 123, and also by the author of Walling v. McCrady Const. Co., supra, in the later case of Kelly v. Ford, Bacon & Davis, Inc., 3 Cir., 162 F.......
  • Aubuchon v. Frazier, No. 5413.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • July 12, 1951
    ...Inc., D.C., 66 F.Supp. 424, 4251; Damon v. Ford Bacon & Davis, Inc., D.C.E.D.Pa., 62 F.Supp. 446, 448; Adams v. Long, 239 Mo.App. 1227, 202 S.W.2d 112, 123; Annotation, 8 A.L.R.2d On the effect of releasing a part of the building to the manufacturer (Pratt & Whitney) and the overlapping of ......
  • Estate of Harry A. Phillips v. Mutual Comm. Cas. Co., No. 20806.
    • United States
    • Court of Appeal of Missouri (US)
    • April 7, 1947
    ...otherwise when payment is made by one standing in the relationship of surety or guarantor. It is generally held that in equity when one 202 S.W.2d 112 standing in such relationship pays he is, at least as against the debtor primarily liable, subrogated to all the rights and remedies of the ......
  • Bumpus v. Remington Arms Co., No. 4537.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • March 27, 1948
    ...the time to examine this easily understood Executive Order. Judge Bland of the Kansas City Court of Appeals, in Adams v. Long, Mo.App., 202 S.W.2d 112, in an elaborate and an exhaustive opinion (loc. cit. 123) discussed the purpose of Executive Order 9240. The interpretation by Judge Bland ......
4 cases
  • Hartmaier v. Long, No. 40983
    • United States
    • Missouri Supreme Court
    • March 12, 1951
    ...is pointed out by the Kansas City Court of Appeals in a case against Long-Turner, viz.: Adams v. Long, 239 Mo.App.[361 Mo. 1163] 1227, 202 S.W.2d 112, 123, and also by the author of Walling v. McCrady Const. Co., supra, in the later case of Kelly v. Ford, Bacon & Davis, Inc., 3 Cir., 162 F.......
  • Aubuchon v. Frazier, No. 5413.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • July 12, 1951
    ...Inc., D.C., 66 F.Supp. 424, 4251; Damon v. Ford Bacon & Davis, Inc., D.C.E.D.Pa., 62 F.Supp. 446, 448; Adams v. Long, 239 Mo.App. 1227, 202 S.W.2d 112, 123; Annotation, 8 A.L.R.2d On the effect of releasing a part of the building to the manufacturer (Pratt & Whitney) and the overlapping of ......
  • Estate of Harry A. Phillips v. Mutual Comm. Cas. Co., No. 20806.
    • United States
    • Court of Appeal of Missouri (US)
    • April 7, 1947
    ...otherwise when payment is made by one standing in the relationship of surety or guarantor. It is generally held that in equity when one 202 S.W.2d 112 standing in such relationship pays he is, at least as against the debtor primarily liable, subrogated to all the rights and remedies of the ......
  • Bumpus v. Remington Arms Co., No. 4537.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • March 27, 1948
    ...the time to examine this easily understood Executive Order. Judge Bland of the Kansas City Court of Appeals, in Adams v. Long, Mo.App., 202 S.W.2d 112, in an elaborate and an exhaustive opinion (loc. cit. 123) discussed the purpose of Executive Order 9240. The interpretation by Judge Bland ......

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