Agnew v. Johnson

• Decision Date: 06 December 1943
• Docket Number: No. 38600.,38600.
• Citation: 176 S.W.2d 489
• Parties: BILLY O. AGNEW, and BILLY O. AGNEW, as Agent and Representative of HENRY NORTON, WILLIAM HEINSON, ARTHUR SHAFFER, HARVEY G. CARNES, HERBERT WYMAN, ORVILLE SANNERS, OLIVE R. SANNERS v. J.A. JOHNSON, doing business as JOHNSON EVERYTHING STORE, Appellant.
• Court: Missouri Supreme Court

176 S.W.2d 489

BILLY O. AGNEW, and BILLY O. AGNEW, as Agent and Representative of HENRY NORTON, WILLIAM HEINSON, ARTHUR SHAFFER, HARVEY G. CARNES, HERBERT WYMAN, ORVILLE SANNERS, OLIVE R. SANNERS v. J.A. JOHNSON, doing business as JOHNSON EVERYTHING STORE, Appellant.

No. 38600.

Supreme Court of Missouri.

Division Two, December 6, 1943.

Motions for Rehearing and to Transfer to Banc Overruled, January 3, 1944.

Appeal from Jackson Circuit Court. — Hon. Marion D. Waltner, Judge.

AFFIRMED.

O.H. Swearingen for appellant; Ira B. McLaughlin of counsel.

(1) The Fair Labor Standards Act is not applicable to the employees whose activities merely affect commerce. Overstreet v. North Shore Corp., 318 U.S. 125; Walling v. Jacksonville Paper Co., 317 U.S. 564; Super-Cold Southwest Co. v. McBride, 124 Fed. (2d) 90; Petway v. Dobson, 46 Fed. Supp. 114. (2) Plaintiff failed to show that he or any of the claimants kept a record of the time they worked for defendant. Fair Labor Standards Act, Title 29, U.S.C.A. (3) Plaintiffs failed to prove that defendant was engaged in interstate commerce or that they were employed in interstate commerce or the production of goods for interstate commerce. Jewell Tea Co. v. Williams, 118 Fed. (2d) 202; Warren-Bradshaw Distilling Co. v. Hall, 63 S. Ct. 125, 87 L. Ed. 99; Ansel Higgins v. Carr Brothers Co., 87 L. Ed. 398; Jones v. Springfield, Mo., Packing Co., 45 Fed. Sup. 997; Super-Cold Southwest Co. v. McBride, 124 Fed. (2d) 90; Silgaro v. Port Compress Co., 45 Fed. Supp. 88; Snavely v. Shugart, 45 Fed. Supp. 722; Samuels v. Houston, 46 Fed. Supp. 364; Chapman v. Home Ice Co., 43 Fed. Supp. 424. (4) Plaintiff's evidence showed that all goods, wares and merchandise bought or handled by defendant came to rest in his place of business, and that handling of such merchandise was purely of intrastate character. Samuels v. Houston, 46 Fed. Supp. 364; Fleming v. Goldblatt, 39 Fed. Supp. 701; Chapman v. Home Ice Company, 43 Fed. Supp. 424; Walling v. Mutual Wholesale Food & Supply Co., 48 Fed. Supp. 609. (5) Claimants showed that they were engaged in selling goods at retail in intrastate commerce, and claimed that certain transactions by them were in interstate commerce, but failed to show how much time was spent in either interstate commerce or intrastate commerce, and for that reason will not be allowed to recover. Super-Cold Southwest Co. v. McBride, 124 Fed. (2d) 90; White Motor Co. v. Littleton, 124 Fed. (2d) 92; Jewell Tea Co. v. Williams, 202 Fed. (2d) 202; Snavely et al. v. Schugart, 45 Fed. Supp. 722; Silgaro v. Port Compress Co., 45 Fed. Supp. 88; Jones v. Springfield, Mo., Pkg. Co., 45 Fed. Supp. 997; Owin v. Liquid Carbonic Corp., 42 Fed. Supp. 774; Johnson v. Great Natl. Life Ins. Co., 166 S.W. (2d) 935; Fair Labor Standards Act, 1938, Sec. 213 (a) (2). (6) The application of the Fair Labor Standards Act depends upon the character and activities of the employee and not upon the nature of the employer's business. Warren-Bradshaw Distilling Co. v. Hall, 317 U.S. 88; Kirschbaum v. Walling, 316 U.S. 517; Petway v. Dobson, 46 Fed. Supp. 114; Shanks v. Delaware, L. & W. Ry., 239 U.S. 556; Pedersen v. Delaware, L. & W. Ry., 229 U.S. 146; Walling v. Jacksonville, 317 U.S. 564; Foster v. National Biscuit Co., 31 Fed. Supp. 552. (7) It is the character rather than the size of an activity which is the controlling feature. Davis v. Goodman Rubber Co., 133 Fed. (2d) 52; Snavely v. Schugart, 6 Labor Cases 63,451, Sec. 61,165. (8) Employees must establish that they were engaged in commerce or production of goods for commerce in order to recover even though employer was engaged in interstate commerce. Jones v. Springfield, Mo., Pkg. Co., 45 Fed. Supp. 997; Swift & Co. v. Wilkerson, 124 Fed. (2d) 176; Jax Beer Co. v. Redfern, 124 Fed. (2d) 172; Samuels v. Houston, 46 Fed. Supp. 364. (9) Retail sale. The word "retail" is not defined by the Act. Given its common and ordinary acceptation when used in sales parlance, it means a sale in a small quantity or direct to the consumer. 37 Words and Phrases, p. 502. (10) Defendant sold and delivered all goods at his place of business. He neither maintained nor was he interested in any delivery or shipping service. The Fair Labor Standards Act of 1938 was not intended, for purposes of coverage, to apply to goods, merchandise and commodities after such goods, merchandise or commodities are in the hands of the ultimate consumer. Chapman v. Home Ice Co., 43 Fed. Supp. 424. (11) Fair Labor Standards Act may be applied to a separate department of the employer's business. Davis v. Goodman Lumber Co., 133 Fed. (2d) 52; Fleming v. Hawkeye Pearl Button Co., 113 Fed. (2d) 52; Fleming v. American Stove Co., 42 Fed. Supp. 511; Duncan v. Montgomery Ward & Co., 5 Labor Cases, Sec. 60,870. (12) It is the business that the employee is engaged in rather than the business of the employer that determines whether the employee is under the Act or not. Fleming, Admr., v. McGehee, 4 Labor Cases, sec. 60,164. (13) An occasional shipment does not bring employer under the Act. Gerdert v. Certified Poultry & Egg Co., 4 Labor Cases 60,719, 38 Fed. Supp. 964; Gilliger v. Goodyear Tire & Rubber Co., 4 Labor Cases 60,534. (14) The judgment is the result of bias and prejudice. (15) The judgment is excessive. Fair Labor Relations Act, 1938, sec. 213 (13) (14). (16) The Fair Labor Standards Act requires both employer and employee to keep a record of the time they work in interstate commerce. White Motor Co. v. Littleton, 124 Fed. (2d) 92; Missel v. Overnight Motor Transportation Co., 40 Fed. Supp. 174, 316 U.S. 572; Super-Cold Southwest Co. v. McBride, 124 Fed. (2d) 90. (17) The court erred in giving judgment for attorney fees. There is absolutely no testimony regarding the value of the attorneys' labor in the preparation and conduct of this case. (18) Claimant cannot recover for overtime where evidence is uncertain. Epps v. Weathers, 49 Fed. Supp. 2; Jax Beer Co. v. Redfern, 124 Fed. (2d) 175; Super-Cold Southwest Co. v. McBride, 124 Fed. (2d) 90; Prescription House v. Anderson, 42 Fed. Supp. 874; Klotz v. Ippolito, 40 Fed. Supp. 422.

Robert H. Miller and Thomas F. Wells for respondent; Julius C. Shapiro of counsel.

(1) In an action at law, where no findings of fact are requested or made, the trial court's judgment is conclusive if there is any substantial evidence, and the reviewing court does not consider the evidence de novo. Coleman v. Kansas City, 156 S.W. (2d) 644, 348 Mo. 916; Bixby v. Backus, 144 S.W. (2d) 112, 346 Mo. 955; Frazier v. Shantz R.E. & Inv. Co., 123 S.W. (2d) 124, 343 Mo. 861; Curry v. Crull, 116 S.W. (2d) 125, 342 Mo. 553; Stephens v. Fowlkes, 92 S.W. (2d) 617, 338 Mo. 527; Bell v. Barrett, 76 S.W. (2d) 394; St. Louis-S.F. Ry. Co. v. Dillard, 43 S.W. (2d) 1034, 328 Mo. 1154. (2) The Fair Labor Standards Act applies to employees engaged in interstate commerce and in the production of goods for interstate commerce. 29 U.S.C.A., secs. 202(a), 206(a), 207(a), 216(b), 203(g), 203(i), 206(j); Warren-Bradshaw Drilling Co. v. Hall, 87 L. Ed. 99, 317 U.S. 88; Lefevers v. General Export Iron & Metal Co., 36 Fed. Supp. 838; United States v. Darby, 312 U.S. 100, 85 L. Ed. 609; Hamlet Ice Co. v. Fleming, 127 Fed. (2d) 165, 87 L. Ed. 32; Kirschbaum v. Walling, 86 L. Ed. 1638, 316 U.S. 517; Fleming v. Jacksonville Paper Co., 128 Fed. (2d) 395, 87 L. Ed. 393; Walling v. Jacksonville Paper Co., 87 L. Ed. 393. (3) Where employees are engaged both in interstate commerce and in intrastate commerce in the same work-week, they must be paid under the Fair Labor Standards Act for the entire week. Walling v. Jacksonville Paper Co., 63 S. Ct. 332, 87 L. Ed. 393; Ashenford v. Yukon, 172 S.W. (2d) 881; Walling v. Peoples Packing Co., 132 Fed. (2d) 236, certiorari denied 87 L. Ed. 722, 63 S. Ct. 831; Fleming v. Jacksonville Paper Co., 128 Fed. (2d) 395. (4) Employees engaged in producing or selling goods which are expected to move in interstate commerce are covered by the Fair Labor Standards Act notwithstanding title to the goods passes from the employer to the buyer within the state where employer's business is located. Interpretative Bulletin No. 5, and other Bulletins; Timberlake v. Day & Zimmerman, 49 Fed. Supp. 28; Hamlet Ice Co. v. Fleming, 127 Fed. (2d) 165, certiorari denied 87 L. Ed. 32; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 87 L. Ed. 99, 63 S. Ct. 125; United States v. Darby, 312 U.S. 100, 87 L. Ed. 609, 61 S. Ct. 451; Gerdert v. Certified Poultry & Egg Co., 38 Fed. Supp. 964; Wood v. Central Sand & Gravel Co., 33 Fed. Supp. 40. (5) The provisions of Section 213(a) (2) of the Fair Labor Standards Act exempting employees of retail establishments is an affirmative defense and must be pleaded. Appellant did not so plead. In any event, such issue applies only when the greater part of the selling is in intrastate commerce. Here the record discloses the appellant's sales and business were principally identified with interstate commerce. 29 U.S.C.A., 213 (a) (1) (2); Walling v. Jacksonville Paper Co., 87 L. Ed. 393, 317 U.S. 564; Prewitt v. Witte, 26 S.W. (2d) 1020; Gregg Carthage & Storage Co. v. United States, 62 S. Ct. 932; McKelvey v. United States, 260 U.S. 353; Alton R. Co. v. United States, 315 U.S. 15; Bowie v. Gonzales, 117 Fed. (2d) 11; Fleming v. Hawkeye Button Co., 113 Fed. (2d) 52; Overnight Motor Transp. Co. v. Missel, 86 L. Ed. 1682, 316 U.S. 572; Fleming v. American Community Stores Co., 42 Fed. Supp. 511; Dennis v. Equitable Equipment Co., 7 So. (2d) 397; Semeria v. Wells-Fargo & Trust Co., 45 Fed. Supp. 128. (6) The award of a sum equal to the amount of minimum wages, and overtime wages found to be due, is mandatory upon the court. Overnight Motor Transp. Co. v. Missel, 86 L. Ed. 1682, 316 U.S. 572; St. John v. Brown, 38 Fed. Supp. 385; McGann v. Long's Baggage Transfer, 39 Fed. Supp. 742; Thompson v. Daugherty, 40 Fed. Supp. 279; Ashenford v. Yukon, 172 S.W. ...