Colbeck v. Dairyland Creamery Co., 8665

• Decision Date: 12 January 1945
• Docket Number: 8665
• Citation: 70 S.D. 283,17 N.W.2d 262
• Parties: JOHN M. COLBECK, Appellant, v. DAIRYLAND CREAMERY CO., Respondent.
• Court: South Dakota Supreme Court

70 SD 283, 17 NW2d 262 (1945)

JOHN M. COLBECK,

Appellant,

v. DAIRYLAND CREAMERY CO.,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. John T. Medin, Judge

#8665—Reversed

Stordahl & May, Sioux Falls, SD

Attorney for Appellant.

Bailey, Voorhees, Woods & Fuller, Sioux Falls, SD

Attorney for Respondent.

Opinion Filed Jan 12, 1945; Rehearing Denied Mar 9, 1945

RUDOLPH, Judge.

Plaintiff, during the times here involved, was an employee of the defendant. The action is brought under the Fair Labor Standards Act of 1938, Ch. 676, 52 Stat. 1060, 29 USCA § 201 et seq., to recover payment for alleged overtime worked by plaintiff. Specifically the action is based upon Section 7(a) of the Act which provides:

“(a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce--

(1) for a workweek longer than forty-four hours during the first year from the effective date of this section,

(2) for a workweek longer than forty-two hours during the second year from such date, or

(3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”

The facts disclose that the defendant is engaged in the dairy and creamery business at Sioux Falls and a large part of its business consists of the manufacture and sale of ice cream. In the sale of its ice cream and other .products the defendant owns a large number of refrigeration cabinets which it has placed in the stores of its customers in the states of South Dakota, Minnesota, Iowa and Nebraska. The defendant also owns and maintains three trucks which are equipped with refrigeration units and which are used to deliver the ice cream and other frozen products to its customers located in the several states. The defendant maintains at Bonesteel, South Dakota, a refrigeration plant where it stores ice cream and other products for the purpose of later shipment in South Dakota and Nebraska. The plaintiff’s work is described in the evidence as that of a refrigerator service man. He serviced the refrigeration equipment located in the different stores in the various states and in the storage plant at Bonesteel. He also serviced and maintained the refrigeration equipment on the three trucks. He did not service or work upon any of the refrigeration equipment in defendant’s principal plant at Sioux Falls. Plaintiff checked the refrigeration equipment on the trucks every night while he was in Sioux Falls. Part of plaintiff’s work consisted of traveling over the territory and servicing the different units but he was in Sioux Falls every week and testified that the trucks were always checked and serviced at least twice each week. Plaintiff was not paid on an hourly basis, but on the basis of a flat monthly salary.

This monthly salary was substantially higher than the salary of another employee similarly engaged and the higher rate was paid to plaintiff to compensate him for overtime and for hours put in by him in excess of the number of hours considered the normal workweek. We believe this statement of facts sufficient for our present purpose. Other essential facts will be stated in connection with the discussion of the issues presented. The trial court determined that the Act was not applicable to plaintiff’s employment and dismissed the complaint. The plaintiff has appealed.

The first question presented is whether the plaintiff was engaged in interstate commerce or in the production of goods for commerce within the meaning of the Act. In so far as plaintiff’s work consisted of traversing state lines and servicing the equipment located in states other than South Dakota, and in so far as his work consisted of servicing the refrigeration equipment on the trucks used to transport the goods in interstate commerce, and in servicing the equipment at Bonesteel where goods intended to move in interstate commerce were stored, we hold that his work was within the coverage of the Act. A. B. Kirschbaum Co. v. Walling, 316 US 517, 62 SCt 1116, 86 LEd 1638; Walling v. Southern Package Corp., 320 US 540, 64 SCt 320. It appears, therefore, that plaintiff worked on interstate as well as intrastate business, and that no attempt was made to distinguish between the two in the payment of wages. In determining the applicability of the Act the work week is to be taken as the standard. If an employee during any work week is engaged in interstate commerce, he is entitled to the benefits of the Act, and this is so even if during that week the employee is also engaged in intrastate work. It might be that if the work covered by the Act during any work week was so small in amount as to fall under the rule of de minimus non curat lex the Act would not apply, but with this we are not concerned as the record discloses that plaintiff’s work within the coverage of the Act was substantial each week. Fleming v. Knox et al., D.C., 42 FSupp 948; Holland v. Amoskeag Mach. Co., 44 FSupp 884; Walling v. Mutual Wholesale Food & Supply Co. et al., D. C., 46 FSupp 939; Walling v. Jacksonville Paper Co., 317 US 564, 63 SCt 332, 87 LEd 460.

The Act by its terms exempts certain employees from its coverage. Respondent contends that appellant’s work as disclosed by the record was such that it placed appellant within certain of the exemptions contained in the Act. It is held very generally that these exemptions must be strictly construed against those claiming them. The Circuit Court of Appeals of the Eighth Circuit in the case of Helena Glendale Ferry Co. v. Walling, 132 F2d 616, 619, summarized the holdings as follows:

“That it was the intention of Congress to include within the protection of the Fair Labor Standards Act of 1938, every employee engaged in commerce or in production for commerce within the broad scope of those activities expressed in the Act, is no longer open to doubt. Fleming v. Hawkeye Pearl Button Co., 8 Cir. 113 F2d 52, 56; Bowie v. Gonzalez 1 Cir., 117 F. 2d 11, 16; Kirschbaum v. Walling, 316 US 517, 62 SCt 1116, 86 LEd 1638; Warren-Bradshaw Drilling Co. v. Hall, [317 US 88], 63 SCt 125, 87 LEd [837, decided November 9, 1942. The Act is remedial and must be given a liberal construction in accordance with its obvious intent and purpose. ‘We must assume that all employees in interstate commerce, so far as reasonably possible, should be made subject to the provisions of the Act.’ Fleming v. Hawkeye Pearl Button Co., supra ... . Those asserting in reference to any employee, an exemption under the Act, must establish the exemption as being both within the spirit and the letter of the statute. Bowie v. Gonzalez, supra. Since the statute is remedial, and by its terms includes every employer and every employee coming within the broad scope of its coverage, the section granting exemptions is to be construed strictly against those claiming them.”

Respondent contends that appellant falls within the exemption contained in Sec. 13(b) of the Act. This section, so far as material, provides:

“The provisions of section 7 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions. of section 204 of the Motor Carrier Act, 1935.”

Section 204(a) of the Motor Carrier Act provides, so far as material, that it shall be the duty of the Interstate Commerce Commission, “(3) To establish for private carriers of property by motor vehicle, if need therefor is found, reasonable requirements to promote safety of operation, and to that end prescribe qualifications and maximum hours of service of employees, ... .” 49 USCA § 304(a) (3).

The exemption contained in 13(b) is applicable to the employees over whom the Interstate Commerce Commission has jurisdiction without regard to whether that Commission has acted under the power conferred by Sec. 204(a) (3) of the Motor Carrier Act. Southland Gasoline Co. v. Bayley et al., 319 US 44, 63 SCt 917, 87 LEd 1244. However, the jurisdiction of the Interstate Commerce Commission is limited to employees whose employment directly affects safety of operation of motor vehicles regulated by the Act. United States of America v. American Trucking Associations, Inc., et al., 310 US 534, 60 SCt 1059, 84 LEd 1345; Anuchick v. Transamerican Freight Lines Inc., D. C., 46 FSupp 861.

The facts disclose that on two different occasions during a period of several years the refrigeration equipment on the trucks exploded. One of these explosions occurred while the equipment was being improperly serviced, and the other at a time when the truck was parked. There was also testimony that if the equipment exploded while the truck was being driven on the road it was perhaps possible for escaping gas to harm passing motorists, but no one testifying had ever heard of or known of an explosion happening while the trucks were being driven, and even if such explosion occurred the possibility of injury or harm to anyone on the highway was thought remote. Relying upon this testimony, respondent contends that while engaged in servicing the equipment on the trucks the appellant fell within the exception contained in Sec. 13(b), in that his work affected the safety of operation of the motor vehicle. Primarily the work of appellant in . servicing the trucks was directed toward the preservation of the frozen goods being transported. If his work in any manner affected safety of operation of the motor vehicle it was only incidental, and we are convinced too remote to fall within the exemption 13(b). In the case of Anuchick v. Transamerican Freight Lines, D. C., 46 FSupp 861, 864, the court was confronted with a...