Bowman v. Pace Co.

• Decision Date: 14 May 1941
• Docket Number: No. 9769.,9769.
• Citation: 119 F.2d 858
• Parties: BOWMAN v. PACE CO.
• Court: U.S. Court of Appeals — Fifth Circuit

119 F.2d 858 (1941)

BOWMAN v. PACE CO.

No. 9769.

Circuit Court of Appeals, Fifth Circuit.

May 14, 1941.

John M. Coe, of Pensacola, Fla., for appellant.

Wm. H. Watson and C. J. Brown, both of Pensacola, Fla., for appellee.

Before FOSTER, SIBLEY, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

Appellant R. M. Bowman sued to recover $1782 from appellee the Pace Company as additional wages and for overtime under the Fair Labor Standards Act, 29 U.S.C.A. § 216(b). A verdict was directed against him. The questions are whether there was evidence that he was an employee of the Pace Company, and was engaged in interstate commerce.

It appears that the Company did a large wholesale grocery business with headquarters in Pensacola, Florida, and a branch store in Alabama. By its own trucks it hauled goods from Pensacola to the Alabama branch store, and also delivered goods directly to customers in Alabama, about fifteen percent of its business being thus done across the State line. About ninety percent of its goods it obtained from other States, some of them being brought into Florida by its own trucks. The office and warehouse at Pensacola were not kept open at night or on Saturday afternoons, Sundays or holidays, and during those times it had prior to Oct. 1, 1938, kept a watchman on duty, paying him $12 per week. Exactly what he did does not appear.

Several years prior to Oct. 1, 1938, one Gene Forsyth, who had been Director of Public Safety at Pensacola and had also worked for the United States in connection with the Bureau of Internal Revenue and the Customs Service, started a business which he styled Gene Forsyth Detective Service, wherein he furnished watchman service to a number of plants and warehouses in Pensacola. He hired watchmen and personally made night rounds to see that his men were on duty. He solicited the business of the Pace Company and was at first refused, but on Oct. 1, 1938, obtained a written contract by which he agreed "to furnish a minimum of fifteen hours watchman service to the Pace Company's main office located at 203 E. Garden St., Pensacola, Florida, as long as satisfactory service is rendered. The Pace Company on their part agree to pay the Gene Forsyth Detective Service the sum of $58 per month." Forsyth was asked to retain the aged man who was then employed as watchman and did so for some months, but finally discharged him. He then, on application from Bowman, hired Bowman at $10 per week on March 15th, 1939. Bowman understood he was to do watching at the Pace Company's place, that he was being hired and would be paid by Forsyth, but was told that the Pace Company would instruct him just what to do. Forsyth did pay him each week as agreed. When Bowman got ill he went to Forsyth to be relieved from duty. At another time Forsyth wished to transfer him to another place. Bowman recognized that Forsyth had the right to do it, but argued him out of it, as Bowman had fixed himself a comfortable room with a radio on the Pace Company's premises. By the direction of the Pace Company Bowman, besides being present on the premises, kept a record of the arrival and departure of trucks while he was on duty; gave the drivers of those departing the clip of bills of the goods they carried, and received from those coming in their bills to be turned into the office in the morning. On some occasions, especially on Saturday afternoon, he had delivered pay envelopes and gotten receipts from such drivers and had taken charge of money brought in by them. He testified also that he was required to keep up with the lubricating of the trucks each two weeks, telephoning the persons who did the lubrication of the arrival of the trucks which needed it. The office representatives of Pace Company minimized these activities, denying that they had requested some, asserting that others were occasional and done for accommodation, and as incidental to the watchman's job. Forsyth testified he knew nothing about them and they were not required by his contract. Everyone testified that the contract of Oct. 1, 1938, was made in good faith without any discussion or thought of the Fair Standards of Labor Act, 29 U.S.C.A. § 201 et seq., which was to go into effect Oct. 24, 1938. The Pace Company gave effect to the Act as to all the men it hired.

The Act, Section 6, 29 U.S.C.A. § 206, requires: "Every employer shall pay to each of his employees who is engaged in commerce * * * wages at the following rates". Section 3, 29 U.S.C.A. § 203, states that "`employee' includes any individual employed by an employer," and that "`employ' includes to suffer or permit to work." The Pace Company was engaged in interstate commerce, and so were its trucks and truck drivers. If the Company employed Bowman to assist about the business of the trucks and drivers, he could be considered as himself engaged in commerce, under the analogy of the cases on the point decided under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. There is, however, a diversity of opinion as to whether an employee who is purely a watchman is engaged in the commerce whose instrumentalities he guards. See 45 U.S.C.A. § 51 and cases cited in notes 162, 167.

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