Fountain v. St. Joseph Water Co.
| Decision Date | 06 March 1944 |
| Docket Number | 38745 |
| Parties | William W. Fountain, W.E. Courter, Otis P. Ebrecht, Sidney P. Warford, Frank R. Mcdonald, Jr., Abe F. Malloy, Jacob F. Gerber, Harvey McNair, George G. Moore, B.E. Peabody, Ira O. Gunselman, Cam U. Powell, F.W. Nave, Orie D. McNair, George Wagner, Jacob R. Gerber, Neil S. Marsh, Herbert A. Taylor, Marion Fountain, Charles Lee, Bruce Boyd, Floyd F. McDonald, James R. Creal, and Levit M. Kent, Appellants, v. St. Joseph Water Co., a Corporation |
| Court | Missouri Supreme Court |
Rehearing Denied April 3, 1944. Motion to Transfer to Banc Overruled May 2, 1944.
Appeal from Buchanan Circuit Court; Hon. Emmett J. Crouse Judge.
Affirmed.
Kendall B. Randolph and John P. Randolph for appellants.
(1) The business of defendant is that of a public utility and is therefore not exempt as a "retail or service establishment" within the meaning of Sec. 213(a) (2) of U.S.C.A., Title 29, Chap. 8. Kirschbaum Co. v. Walling Adm., 62 S.Ct. 1116, 316 U.S. 517, 86 L.Ed. 1638, (See also opinion of C.C.A. which this decision affirmed); Schmidt v. Peoples Tel. Union of Maryville, 138 F.2d 13; Womack v. Consolidated Timber Co., 132 F.2d 101; Walling v. Peoples Packing Co., 132 F.2d 236; Strand v. Garden Valley Tel. Co., 51 F.Supp. 898; Brown v. Minngas Co., 51 F.Supp. 363. (2) The plaintiffs were, "engaged in commerce or in the production of goods for commerce," or in a "process or occupation necessary to the production thereof," within the meaning of the "Fair Labor Standards Act of 1938" and the judgment of the trial court should have been for plaintiffs. Secs. 207(a), 203(b), (i), (j), 216(b), U.S.C.A., Title 29, Chap. 8; Kirschbaum Co. v. Walling, Adm., 62 S.Ct. 1116, 316 U.S. 517, 86 L.Ed. 1638; Warren-Bradshaw Drilling Co. v. Hall, 63 S.Ct. 125, 87 L.Ed. 99; Overstreet v. North Shore Corp., 87 L.Ed. 423; Chapman v. Home Ice Co., 136 F.2d 353; Womach v. Consolidated Timber Co., supra; Walling v. Peoples Packing Co., supra; Holland v. Amoskeag Machine Co., 44 F.Supp. 884.
John H. Murdock, Jr., and Culver, Phillip, Kaufmann & Smith for respondent.
(1) The respondent is a retail or servicing establishment, the greater part of whose selling or servicing is in intrastate commerce and is therefore exempt from the act. Atlantic Ice & Coal Co. v. Maxwell, 188 S.E. 381; Borders v. Cline, 193 S.W. 826; Williams Bros. Mfg. Co. v. Naubuc Fire Dist., 104 A. 245; Trustees' Academy v. Bohler, 7 S.E. 633; Memphis Gas Light Co. v. State, 46 Tenn. 309; Wage & Hour Manual (1942 Ed.), p. 331. The exemption from the act depends upon the character of the defendant's business. Fleming v. A.B. Kirschbaum Co., 124 F.2d l.c. 570; White v. Jacobs Pharmacy Co., 47 F.Supp. 298. The defendant is a retail establishment. White Motor Co. v. Littleton, 124 F.2d 93; Great Atlantic & Pacific Tea Co. v. Cream of Wheat Co, 227 F. 47; Zeahring v. Brown Materials, Ltd., 48 F.Supp. 740; Womack v. Consolidated Timber Co., 132 F.2d 101; White v. Jacobs Pharmacy Co., 47 F.Supp. 298; Lunden v. Chattanooga Transp. Co., 6 W.H.R. 1067; Lonas v. Natl. Linen Service Co., 136 F.2d 433; Bartholome v. Baltimore Fire P. & D. Co., 48 F.Supp. 98. (2) Though the reason upon which the trial court based its judgment is erroneous, the judgment below must be affirmed if the record shows that the judgment is right. Dolan v. Louisville Water Co., 174 S.W.2d 425; State ex rel. Mulholland v. Smith, 141 Mo. 1. (3) Whether plaintiff is engaged in interstate commerce or in the production of goods for interstate commerce depends upon the character of the employee's activity and not upon the character of the business of the defendant. Kirschbaum v. Walling, 316 U.S. 517, 86 L.Ed. 1638; Fleming v. Jacksonville Paper Co., 128 F.2d 395; Jacksonville Paper Co. v. Fleming, 87 L.Ed. 395; McLeod v. Threlkeld, 87 L.Ed. 1154. (4) Where the work of the employee is partly interstate and partly intrastate, the burden is upon the employee to show what part of his work is in interstate commerce or in the production of goods for interstate commerce, and without such proof he cannot recover. Supergold Southwest Co. v. McBride, 124 F.2d 90; Jax Beer Co. v. Redfern, 124 F.2d 172; White Motor Co. v. Littleton, 124 F.2d 92; Camfield v. West Texas Utilities Co., 170 S.W.2d 552; Silgaro v. Port Compress Co., 45 F.Supp. 88; Snavely v. Shugart, 45 F.Supp. 722; Tucker v. Hitchcock, 44 F.Supp. l.c. 879; Corbett v. Schlumberger, 43 F.Supp. 605; Moses v. McKesson & Robbins, 43 F.Supp. 528; Holland v. Halle Gold Mines, 44 F.Supp. 641; Klotz v. Ippolito, 40 F.Supp. 422; Carter v. J.F. Prichard Co., W.H.R., p. 162, decided Feb. 15, 1943. (5) An employee is not engaged in the production of goods for commerce if his work has only the most tenuous relation thereto, and is not in any fitting sense necessary to the production; it is only where the work of the employee has such a close and immediate tie with the process of production and manufacture and is, therefore, so much an essential part of it that the employee may be regarded as engaged in an occupation necessary to the production of goods for commerce. Kirschbaum v. Walling, 316 U.S. 517, 86 L.Ed. 1638. The work of the plaintiffs did not bring them within the rule. Noonan v. Fruco Const. Co., 6 W.H.R. 1281, decided Dec. 13, 1943; Couch v. Ward, 168 S.W.2d 822; Trefs v. Foley Bros., Inc., 6 W.H.R. 921; Zehring v. Brown Materials, Ltd., W.H.R. 136; Cases, supra; Rucker v. First Natl. Bank, 6 W.H.R. 1114; Tate v. Empire Bldg. Co., 6 W.H.R. 571; certiorari denied; In re Liquidation N.Y.T. & Mtg. Co., W.H.R., 152, decided Feb. 13, 1943.
This is an action under the Fair Labor Standards Act of 1938 [U.S.C.A., Title 29, Chap. 8, Secs. 201-219] to recover overtime compensation, liquidated damages and attorney's fees. (Sec. 216.) The court found for defendant on the ground "that defendant is a retail or service establishment the greater part of whose selling or servicing is in intrastate commerce within the meaning of Sec. 13(a)(2)" of the Act [29 U.S.C.A. 213 (a) (2)]. Plaintiffs have appealed. Our jurisdiction is invoked because of the amount involved.
The parties agreed upon most of the facts but some evidence was offered by each. Plaintiffs claim that they are entitled to judgment as a matter of law under the facts. Defendant is incorporated under the laws of Missouri, furnishes and sells water only in the counties of Andrew and Buchanan and all of its plants, pipe lines and installations are located therein. Likewise, all of the work of its employees is performed in these counties. It takes water from the Missouri River, pumps it into settling basins where it is filtered, purified and sterilized. The water is then pumped into holding basins from which it flows by gravity into water mains to its customers, mainly in the City of St. Joseph. Defendant's mains are connected with the premises of each customer by a service pipe owned and installed by the owner of the premises. Defendant also furnishes standby fire pressure service, tests and repairs hydrants and valves, and inspects plumbing fixtures of customers. Defendant's rates and business are regulated by the Missouri Public Service Commission.
St. Joseph has about 75,000 inhabitants. It has industries engaged in producing goods for shipment in interstate commerce such as Swift & Co., Armour & Co., Quaker Oats Co., Goetz Brewing Co., Western Dairy and Ice Cream Co., Douglas Candy Co., and others engaged in bottling soft drinks, making vinegar, and manufacturing chemicals. There are also six railroads through the city to which defendant furnishes water. Some of this is used to fill boilers of locomotives and drinking water tanks and other tanks on cars. The city is about seven miles long and three miles wide. Most of defendant's pipe mileage is in the residential sections. During the period involved herein it had from 18,330 to 19,007 total customers. Domestic customers (single private homes) were from 14,535 to 15,106, paying an average of less than $ 1.50 per month. Commercial customers (including apartment and boarding houses, two or more family homes, churches, hospitals and hotels, as well as wholesale and retail commercial establishments) were from 3,446 to 3,520, paying an average of less than four dollars per month. Municipal customers (city and county) were 89 to 108, with an additional 120 to 123 fire service customers (not including municipal fire hydrants rented on a different basis) to service fire sprinkler heads, both public and private. Industrial customers were from 103 to 149 and other public utilities from 37 to 38. Industrial and other public utility users consumed 24.6% of the total volume of water and produced 12.4% of defendant's total revenue.
Industrial plants made various use of the water purchased. Swift & Co. had their own wells and about 86% of all water consumed was well water. They preferred to use city water in their canning, curing and processing departments, but "got along at times with entirely all well water." Defendant's water was also used for washing live stock for slaughter and other cleaning purposes. Goetz Brewing Co. used it as an ingredient of its beer as well as for drinking water and cleaning purposes. Quaker Oats Co. used it at one plant only for drinking and cleaning purposes and in another plant as an ingredient in manufactured food products. Bottling companies used it as an ingredient of carbonated beverages. It was used by another company as an ingredient of vinegar. It was likewise used by chemical and pharmacal companies in their products. It was also used to fill boilers in factories using steam power plants.
Plaintiffs' work ranged from repairing mains, hydrants, meters and valves, inspecting plumbing, checking and testing the...
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