Enterprise Box Co. v. Fleming, No. 9909.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtFOSTER, HUTCHESON, and HOLMES, Circuit
Citation125 F.2d 897
Decision Date24 March 1942
Docket NumberNo. 9909.
PartiesENTERPRISE BOX CO. v. FLEMING.

125 F.2d 897 (1942)

ENTERPRISE BOX CO.
v.
FLEMING.

No. 9909.

Circuit Court of Appeals, Fifth Circuit.

February 26, 1942.

Rehearing Denied March 24, 1942.


125 F.2d 898

M. Caraballo and John G. Graham, both of Tampa, Fla., for appellant.

Irving J. Levy, Asst. Sol. in Charge of Litigation, U. S. Department of Labor, of Washington, D. C., and Geo. A. Downing, Regional Atty., U. S. Dept. of Labor, of Atlanta, Ga., for appellee.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

On the complaint of appellee, the court below entered a judgment enjoining the Enterprise Box Company from violating subsections (1), (2), and (5) of Section 15 (a) of the Fair Labor Standards Act.1 Appealing from that judgment, the appellant acknowledges that it did not comply with the requirements of the Act in respect to minimum wages or maximum hours or the manner of keeping its records; but it contends that these provisions are not applicable to it for the reason that it is not engaged in the production of goods for commerce within the meaning of the Act.

Appellant is a Florida concern engaged in the manufacture and sale of cigar boxes. All of its manufacturing is done within that state, and all of its sales are made to cigar manufacturers in Florida. The cigar manufacturers use the boxes as containers for the cigars, and sell and distribute the major portion of such cigars in interstate commerce. Appellant is familiar with the interstate character of the use to which its products are put. It denies, however, that it is engaged in the production of goods for commerce for three reasons: (1) Because it does not actually sell its product in interstate commerce, (2) because the purpose for which the boxes are used prevents them, by act of Congress, from again being used for that purpose, with the result that the economic value of the containers is thereby destroyed and the tobacco manufacturers become the ultimate consumers, and (3) since appellant's business practice in selling only to purchasers within Florida was found by the court to be not a subterfuge designed to escape the provisions of the Act, it could not be said to have violated Section 15 (a) (1) of the Act or to come within its coverage.

The Act defines the language "production of goods for commerce". The phrase is extremely comprehensive, and embraces working in any manner upon any article or subject of commerce, except goods already delivered to the ultimate consumer, or in any process or occupation necessary to the production thereof, for shipment among the several states or from one state to any place outside thereof. 29 U.S.C.A., Sec. 203(b), (i) and (j). So defined, there remains no doubt that the appellant falls within the scope of the clause

125 F.2d 899
if the cigar boxes were articles or subjects of commerce

As we understand it, appellant acknowledges that its products would be articles and subjects of commerce but for the fact that they were used by the purchasers thereof in Florida to encase cigars. The gravamen of its contention is that each box was manufactured for primary use as a container for cigars, and that, upon once being used for that purpose, it could not lawfully be so used again; that its economic value...

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31 practice notes
  • Hamlet Ice Co. v. Fleming, No. 4908.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 13, 1942
    ...to pipe lines within the state for transportation to points outside the state. See, also, Enterprise Box Co. v. Fleming, Adm'r, 5 Cir., 125 F.2d 897; Fleming v. Arsenal Bldg. Corp., 2 Cir., 125 F.2d 278, certiorari granted March 2, 1942, 62 S.Ct. 801, 86 L.Ed. ___. Cf. Jewel Tea Co. v. Will......
  • Schulte v. Gangi, No. 517
    • United States
    • United States Supreme Court
    • April 29, 1946
    ...9 Cir., 146 F.2d 29; St. John V. Brown, D.C., 38 F.Supp. 385, 388; Fleming v. Enterprise Box Co., D.C., 37 F.Supp. 331, affirmed 5 Cir., 125 F.2d 897; Bracey v. Luray, 4 Cir., 138 F.2d 8....
  • Mitchell v. Jaffe, No. 17164.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 2, 1958
    ...v. United States, 5 Cir., 1943, 133 F.2d 449; Fleming v. Enterprise Box Co., D.C.S.D.Fla., 1941, 37 F.Supp. 331, affirmed, 5 Cir., 1942, 125 F.2d 897, certiorari denied Enterprise Box Co. v. Holland, 1942, 316 U.S. 704, 62 S.Ct. 1312, 86 L.Ed. 1772; United States v. Darby, 1941, 312 U.S. 10......
  • Walling v. Armbruster, Civ. No. 345.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • August 10, 1943
    ...Act, unless exempted therefrom by Section 13(a) (2), U.S.C.A. Title 29, Section 213 (a) (2). See Enterprise Box Co. v. Fleming, 5 Cir., 125 F.2d 897; Warren-Bradshaw Drilling Co. v. Hall, Agent, et al., 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. (2) Were and are the defendants operating a service ......
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31 cases
  • Hamlet Ice Co. v. Fleming, No. 4908.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 13, 1942
    ...to pipe lines within the state for transportation to points outside the state. See, also, Enterprise Box Co. v. Fleming, Adm'r, 5 Cir., 125 F.2d 897; Fleming v. Arsenal Bldg. Corp., 2 Cir., 125 F.2d 278, certiorari granted March 2, 1942, 62 S.Ct. 801, 86 L.Ed. ___. Cf. Jewel Tea Co. v. Will......
  • Schulte v. Gangi, No. 517
    • United States
    • United States Supreme Court
    • April 29, 1946
    ...9 Cir., 146 F.2d 29; St. John V. Brown, D.C., 38 F.Supp. 385, 388; Fleming v. Enterprise Box Co., D.C., 37 F.Supp. 331, affirmed 5 Cir., 125 F.2d 897; Bracey v. Luray, 4 Cir., 138 F.2d 8....
  • Mitchell v. Jaffe, No. 17164.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 2, 1958
    ...v. United States, 5 Cir., 1943, 133 F.2d 449; Fleming v. Enterprise Box Co., D.C.S.D.Fla., 1941, 37 F.Supp. 331, affirmed, 5 Cir., 1942, 125 F.2d 897, certiorari denied Enterprise Box Co. v. Holland, 1942, 316 U.S. 704, 62 S.Ct. 1312, 86 L.Ed. 1772; United States v. Darby, 1941, 312 U.S. 10......
  • Walling v. Armbruster, Civ. No. 345.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • August 10, 1943
    ...Act, unless exempted therefrom by Section 13(a) (2), U.S.C.A. Title 29, Section 213 (a) (2). See Enterprise Box Co. v. Fleming, 5 Cir., 125 F.2d 897; Warren-Bradshaw Drilling Co. v. Hall, Agent, et al., 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. (2) Were and are the defendants operating a service ......
  • Request a trial to view additional results

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