Eddings v. Southern Dairies

• Decision Date: 12 January 1942
• Docket Number: Civil Action No. 595.
• Citation: 42 F. Supp. 664
• Court: U.S. District Court — District of South Carolina
• Parties: EDDINGS v. SOUTHERN DIARIES.

42 F. Supp. 664

EDDINGS v. SOUTHERN DIARIES.

Civil Action No. 595.

District Court, E. D. South Carolina, Columbia Division.

January 12, 1942.

W. K. Charles, of Greenwood, S. C., for plaintiff.

John J. Carmody, of Washington, D. C., and Heyward Brockinton, of Columbia, S. C., for defendant.

George A. Downing, Regional Atty., United States Department of Labor, Wage and Hour Division, of Atlanta, Ga., amicus curiae.

WYCHE, District Judge.

This action was brought by plaintiff individually and on behalf of certain other employees named in the body of the complaint, against the defendant for unpaid minimum wages and unpaid overtime compensation, and for an additional equal amount as liquidated damages under the Fair Labor Standards Act of 1938, Pub.No. 718, 75th Congress, 52 Stat. 1060, 29 U.S.C. A. § 201 et seq.

The matter before me is a motion by the defendant to dismiss on the ground, among others, that the provisions of Sections 6 and 7 of the Act do not apply to all employees of the defendant, but cover only such as are engaged in interstate commerce, or in the production of goods for interstate commerce, and that the complaint fails to disclose that the plaintiff, and those whom he claims to represent, were, as a matter of law, so engaged during the period covered by the complaint.

While the complaint in this cause alleges in general terms that the plaintiff, and those for whom he sues, are engaged in interstate commerce and in the production of goods for interstate commerce, the allegations so alleging must be taken in connection with the other allegations of the complaint where plaintiff attempts to particularize the duties of the employees involved in this controversy, and to state in what manner they are engaged in interstate commerce and in the production of goods for interstate commerce¹ so that the complaint should read as follows: That the plaintiff and those for whom he sues are engaged in interstate commerce and in the production of goods for interstate commerce in that defendant is a corporation organized and existing under and by virtue of the laws of the State of Delaware, doing business within the State of South Carolina, and having offices and agents for the transaction of its business at Columbia, South Carolina, and at all times hereinafter mentioned, operated out of Columbia in the County of Richland and State aforesaid, a wholesale distributing plant for the distribution of frozen foods, consisting of fruits, vegetables, meats, chickens, and fish, which when thawed have the same flavor as fresh foods; also ice cream mix, a base for making ice cream, and including specialties such as pop-cicles, sandwiches, fountain syrups, concentrated fruits, and fountain supplies, all of which are shipped to the defendant's warehouse from points out of the State of South Carolina. Substantially all of the goods manufactured and distributed by the defendant during the times hereinafter mentioned have been sold, offered for transportation, transported, shipped and delivered from the defendant's plants at Charlotte, North Carolina, and Washington, D. C., to its distributing plant at Columbia, South Carolina. During the work-weeks beginning October 24, 1938, to date, defendant has employed at its Columbia, South Carolina, warehouses approximately ten men and women in the distribution of said sundaes, fruits, meats, etc. The goods distributed by such employees during such period have been sold, offered for transportation, transported, shipped and delivered from defendant's factories and warehouses at Charlotte, North Carolina, and Washington, D. C., to its distributing plant in Columbia, South Carolina. In such business defendant, from October 24, 1938, the effective date of such Fair Labor Standards Act, to April 4, 1941, has employed plaintiff as a shipping clerk, whose duties, among other things, were to place orders for ice cream, sundaes, fruits, meats, etc., to be shipped from Charlotte, North Carolina, and Washington, D. C., to take and keep a complete inventory of all goods on hand and in transit, to keep all books and records of the said office, collect all moneys due it, receive orders from salesmen, deliver to truck drivers, and take their receipts for goods to be delivered and sold, and to do such other things as may be incidental to said employment.

The complaint reveals the process by which the goods are introduced into the State of South Carolina. It alleges that the duties of the plaintiff (an employee of the Columbia distributing plant) include, among other things, "the placing of orders for ice cream, sundaes, fruits, meats, etc., to be shipped from Charlotte, North Carolina and Washington, D. C.," and as necessary and incidental thereto "the taking and keeping of a complete inventory of all goods on hand and in transit". It discloses that the defendant is engaged at Charlotte, North Carolina, and at Washington, D. C., in the manufacture for interstate commerce of frozen foods, such as fruits, vegetables, meats, chickens and fish, and of ice cream mix, fountain syrups, concentrated fruits, etc.; and that it is engaged at Columbia, South Carolina, in the distribution at wholesale of such products, all of which are shipped to it there in interstate commerce from its said extrastate plants, and that the employees in whose behalf plaintiff also brings this action are employed in handling and selling goods at and from the Columbia plant within the State of South Carolina. It is not alleged that the goods are thereafter shipped from South Carolina across State lines, and it is not contended that orders are solicited in South Carolina, and the goods then shipped from without the State direct to the customer, or to an agent for delivery to the customer in fulfillment of specific orders.²

I will consider the case of the plaintiff first. The Fair Labor Standards Act, 29 U. S.C.A. § 203(b), defines "commerce" as follows: "`Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof." In Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 189, 6 L.Ed. 23, the Supreme Court said: "Commerce, undoubtedly, is traffic, but it is something more — it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all of its branches. * * * The word `among' means intermingled with. A thing which is among others, is intermingled with them. Commerce among the states, cannot stop at the external boundary line of each state, but may be introduced into the interior." Later, the Supreme Court reaffirmed this doctrine in Welton v. State of Missouri, 91 U.S. 275, at page 280, 23 L.Ed. 347: "Commerce is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale, and exchange of commodities * * *."

The scope of the term "engaged in commerce," as used in the Fair Labor Standards Act, even if not regarded as co-extensive with the utmost limits of the commerce power of Congress, in my opinion does comprehend transactions of the character of the duties performed by the plaintiff. Even under traditional concepts, the ordering of goods from one state to be transported or introduced into another state has uniformly been considered a part of interstate commerce. Transportation from one state to another has always been considered a standard example of interstate commerce. The placing of orders for goods, which are in another State for the purpose of introducing them into the State from which the order is placed, is interstate commerce. In this case the orders which constitute the first step in the introduction of the goods into the State, are transmitted directly by the plaintiff from Columbia, South Carolina, to the defendant's extrastate factory at Charlotte, North Carolina, or at Washington, D. C., for shipments to be made to defendant's warehouse at Columbia, South Carolina, to be later sold to the public. The fact that the orders placed by the plaintiff may not have been in fulfillment of a sale or a purchase is not material, the orders were for the purpose of having the goods transported, that is, introduced from a foreign State into the State of South Carolina, from which the orders emanated, and when plaintiff placed the orders for the commodities to be shipped from Charlotte, North Carolina, and Washington, D. C. to Columbia, South Carolina, and kept a record of all such goods in transit from such places to Columbia, South Carolina, he was engaged in interstate commerce as contemplated by the Fair Labor Standards Act of 1938.

At the argument, and in supporting briefs, plaintiff's counsel contended that even though the goods are received from Washington, D. C., and Charlotte, North Carolina, stored in defendant's warehouse and sold and delivered to dealers or distributors wholly within the State of South Carolina, nevertheless the "flow" in interstate commerce is continued, and the employees handling or selling said goods in South Carolina are covered by the Act.

On the other hand, the defendant's position is that when the goods are received in South Carolina and stored in its warehouse, and sold locally, that interstate commerce has ended.

The scope of the power of Congress to regulate wages and hours and the scope of the Act as written are quite different. That Congress intended to legislate only for those employees who were themselves engaged in commerce, and not merely in occupations which affect commerce is best shown by the legislative history of the Act.

Senate Bill 2475, introduced in the Senate on May 24, 1937, declared it unlawful "for any person to employ under any substandard labor condition any employee engaged in interstate commerce" or in the production of goods intended for transportation, in violation of provisions of the bill. Thus worded, the bill was adopted by the Senate and...