Barrineau v. Carolina Milling Co., 651.

• Decision Date: 16 October 1942
• Docket Number: No. 651.,651.
• Citation: 52 F. Supp. 197
• Court: U.S. District Court — District of South Carolina
• Parties: BARRINEAU v. CAROLINA MILLING CO.

52 F. Supp. 197

BARRINEAU v. CAROLINA MILLING CO.

No. 651.

District Court, E. D. South Carolina.

October 16, 1942.

Joe P. Lane and Herbert M. Britt, both of Dillon, S. C., and Julian L. Johnson, of Columbia, S. C., for plaintiff.

W. C. Moore, of Dillon, S. C., for defendant.

WARING, District Judge.

The plaintiff in the above entitled cause was formerly an employee of the defendant, Carolina Milling Company, which is a corporation organized under the laws of the State of South Carolina, with office and place of business at Dillon, S. C. During the times referred to in this suit the defendant company was engaged in the manufacture and sale of fertilizer and fertilizer materials and also purchased wheat and sold and exchanged flour and also operated cotton gins. In addition to the three main lines of business above set forth the Company had side lines consisting of handling and distribution of molasses, the purchase and sale of corn and of seed wheat, and dealing in and selling insect poisons for plant protection. The Company's place of business was in the town of Dillon where it had a general office for the management of all of its business. The various manufacturing and distribution businesses were in separate buildings, all, however, located near each other and near the one central business office.

The plaintiff was an employee of the defendant over a considerable period of time being engaged from time to time as occasion demanded in connection with the various activities of the defendant company. It is admitted that his wages were less than those required under the Fair Labor Standards Act of June 25, 1938, 52 Stat. 1060, et seq., 29 U.S.C.A. § 201, et seq., but it is denied that the Act was applicable to him.

This suit was brought for the recovery of wages claimed to be due by reason of the failure to pay minimum wages fixed by the aforesaid Act and failure to pay over time. The defendant answered and denied that its business was such as to bring it within the terms of the Act, in that the business in which it was engaged was not such as to warrant it being declared to be engaged in producing goods to be shipped in interstate commerce. The defendant also set up as a counterclaim that the plaintiff was indebted to it by reason of his having issued receipts for goods never received by the defendant.

By order dated April 29, 1942, the cause was referred to A. L. Hardee, Esquire, a member of the bar of Florence, S. C., as Special Referee, to take testimony and report his findings of fact and conclusions of law. A number of references were held and testimony taken and the referee filed his report on July 13, 1942, wherein he made a finding that the plaintiff was entitled to be paid additional wages under the terms of the Fair Labor Standards Act amounting to $580.19. In addition to that, under the terms of the Act, 29 U.S. C.A. § 216, Subdivision (b), the plaintiff was held to be entitled to an equal amount as liquidated damages. Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 62 S. Ct. 1216, 86 L.Ed. 1682, decided June 8, 1942; Calaf v. Gonzalez, 1 Cir., 127 F.2d 934.

The Referee found that the defendant was entitled to offset against the above allowances certain amounts, which the plaintiff owed to defendant by reason of his having issued receipts for goods not received by his employer. The amount of the offset was found to be $235.63. The Referee found that the whole of this amount should not be applied against wages, but only such portion as accrued during the period when such additional wages came due. The net result of the Referee's report was to find that there was due to plaintiff the sum of $955.06 as wages and liquidated damages, from which there should be deducted an offset of $132.97, making a total amount due the plaintiff for himself of $822.09. The Referee in addition recommended an allowance of $100 for plaintiff's attorneys' fees, so that the total amount recommended by him to be recovered from the defendant is $922.09.

I have read the Referee's report in detail and also all the testimony taken before him and now on file in this court. The defendant has filed its objections to this report, most of which objections are directed to the findings of the Referee that the defendant was covered by the terms of the Fair Labor Standards Act, whereas it claimed to be exempt for the following reasons: (1) That it was not engaged in interstate commerce in all of its activities; (2) that these activities were entirely separate and were seasonal in their nature; (3) that certain of these activities were within the exemptions of Section 213(a) (10), of the Act; (4) that even if the defendant was engaged in any interstate commerce activities it could only have been the fertilizer mixing business and the cotton ginning business and that any wage payments to be made in these businesses should be calculated under Section 207, and particularly 207(c) of the Act. It is also claimed that the Referee erred in his allowance of only a part of the defendant's counterclaim, whereas the entire amount should have been allowed and also that such allowance should be offset against the wages before the liquidated damages were assessed.

The attorneys representing the respective parties appeared before me on September 19th 1942, and the case was fully argued. At their request I allowed them until October 1st to file briefs, which they have done. After due consideration of all of the foregoing, I have reached the conclusion that the Referee's findings with one exception are correct both as to fact and law. The Referee has made a very capable, careful and clear report and I deem it unnecessary to review the same in any extended or elaborate opinion since my views coincide so fully with the findings of the Referee that such an opinion would be almost a rewriting of his report, the changes being of form and not of substance.

The only phase of the case on which I have had some difficulty is as to the proper manner of allowing the offset. The defendant has argued with much earnestness that the amounts due by the plaintiff to the defendant should be offset against the wages earned and before the double wage allowed as liquidated damages became due. The plaintiff claims that the double wages became due immediately upon failure to pay the minimum wages or over time required by the Act. I have not been able to find any case wherein this exact question has been passed on by any other court and counsel admit that they likewise have not found anything directly in point. The nearest case to the point in issue, which I have seen, is Clour v. Jones, decided by the ...