Hamlet Ice Co. v. Fleming, No. 4908.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtPARKER and SOPER, Circuit , and WARING
Citation127 F.2d 165
PartiesHAMLET ICE CO., Inc., v. FLEMING, Administrator of Wage and Hour Division, United States Department of Labor.
Docket NumberNo. 4908.
Decision Date13 April 1942

127 F.2d 165 (1942)

HAMLET ICE CO., Inc.,
v.
FLEMING, Administrator of Wage and Hour Division, United States Department of Labor.

No. 4908.

Circuit Court of Appeals, Fourth Circuit.

April 13, 1942.


127 F.2d 166

L. R. Varser, of Lumberton, N. C. (J. L. Emanuel, of Raleigh, N. C., Varser, McIntyre & Henry, of Lumberton, N. C., and Pou & Emanuel, of Raleigh, N. C., on the brief), for appellant.

Edward J. Fruchtman, of Washington, D. C., Atty., U. S. Department of Labor (Warner W. Gardner, Sol., and Mortimer B. Wolf, Asst. Sol., both of Washington, D. C., D. Lacy McBryde, Regional Atty., of Raleigh, N. C., and John J. Babe, of Washington, D. C., Atty., U. S. Department of Labor, on the brief), for appellee.

Before PARKER and SOPER, Circuit Judges, and WARING, District Judge.

SOPER, Circuit Judge.

At the suit of the Administrator of the Wage and Hour Division of the United States Department of Labor, the District Court found that the Hamlet Ice Company had failed in the course of its business to abide by the wage, hour and record keeping provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060, §§ 6, 7 and 11(c), 29 U.S.C.A. §§ 206, 207 and 211(c), and had violated the prohibitions of the Act which require conformity with these standards, §§ 15(a) (1), 15 (a) (2) and 15(a) (5), 29 U.S.C.A. §§ 215(a) (1), 215(a) (2) and 215 (a) (5). Sections 6 and 7 impose certain requirements upon employers as to the wages and hours of employees who are "engaged in commerce or in the production of goods for commerce", and Section 11 requires the keeping and preservation of records of employees so engaged. Sections 15(a) (1), 15(a) (2) and 15(a) (5) make it unlawful for any person to ship, deliver or sell in commerce, or to ship or deliver or sell, with knowledge that shipment or delivery or sale thereof in commerce is intended, any goods produced by persons in violation of the wage and hour provisions of the Act, or to violate any of the provisions in regard to the making and preservation

127 F.2d 167
of records. Upon the findings so made, the District Court entered an injunction enjoining the Ice Company from further violation of the Act, and the Ice Company appealed

The Ice Company admitted non-compliance with the Act, but contended that its activities did not come within the scope of the Act, since its employees were not persons "engaged in commerce or in the production of goods for commerce" to whom the wage and hour provisions of the Act apply. That contention presents the only question to be considered on this appeal.

The Ice Company manufactures substantial quantities of ice throughout the year at its plant at Hamlet, North Carolina, a divisional point on the Seaboard Air Line Railway, which is the only railroad through the town. The manufacturing plant and sales office of the Ice Company is two and a half miles north of the town in which it also maintains a station for local sales. The employees at the plant include persons who operate and maintain the ice producing machinery and who put ice into and withdraw it from storage. About 75 per cent of the output is sold to three interstate carriers by rail, that is, Fruit Growers' Express Company, Seaboard Air Line Railway Company and the Railway Express Agency. The rest of the ice is sold from the station in the town to persons who consume it in North Carolina. The employees at that station are not involved in this case.

Fruit Growers receives deliveries of ice almost daily, which amounted in the aggregate to about 41.5 per cent of the ice sold in the two year period from October 24, 1938 to October 24, 1940. Delivery is made in 300 pound blocks by means of a chute owned by Fruit Growers which extends across the railroad tracks from the Ice Company's platform to the loading platform of Fruit Growers, where the blocks are broken up into suitable sizes by Fruit Growers' employees and loaded by them into the bunkers of refrigerator cars spotted on tracks between the two plants. Delivery is completed by the Ice Company when the ice falls into the Fruit Growers' chute, and all of the handling of the ice thereafter is done by the latter's employees. The refrigerator cars are owned by Fruit Growers or by other refrigerator car lines, and the icing of the cars is done by Fruit Growers under a contract with the Seaboard Air Line. Fruit Growers has no contractual relation with the shippers or consignees of the perishable commodities transported in the cars, but serves only the Seaboard Air Line. The ice is consumed during the course of the transportation of the cars, 90 per cent of which move out of North Carolina and are next iced at points outside of the State.

Seaboard Air Line Railway Company is a common carrier of passengers and freight, moving in intrastate and interstate commerce. It maintains at Hamlet a passenger station, freight yard, repair shops and divisional and other offices. During the two year period the Ice Company delivered to it 25.38 per cent of the ice sold at the plant. The ice is delivered to the passenger station of the Seaboard at Hamlet in trucks operated by the Ice Company's employees. After delivery the ice is broken into suitable sizes by employees of the Railroad Company. Part of it is consumed locally but 90 per cent of it is used to ice foods and beverages in railway dining cars, Pullmans, coaches and mail cars. Practically all of these cars move to extrastate points and are next re-iced, if at all, in other states.

Railway Express Agency is a common carrier of express by rail in intrastate and interstate commerce. It carries on its business in connection with the Seaboard Air Line. It maintains and operates an office and place of business in the Seaboard passenger station at Hamlet. During the two year period 8.4 per cent of the Ice Company's total sales and deliveries were made to it. All the ice purchased by the Railway Express Agency from the Ice Company is delivered by the Ice Company at its plant, and transported in trucks of the Railway Express to its office at Hamlet. The ice is used by the Railway Express for the purpose of icing less than car load express shipments of perishable commodities in transit on express cars in passenger trains of the Seaboard. The Railway Express Agency breaks the blocks into suitable sizes for this purpose. Ninety per cent of all the cars iced by the Railway Express move out of North Carolina and are next iced at points outside of the state.

Hamlet is the main junction point for Seaboard and is its second largest icing station in the Carolinas. It is common knowledge in the community that the cars iced at Hamlet are for the most part through freights, moving between Florida and New York. The Ice Company has knowledge at the time the ice is produced that it will move in interstate commerce.

127 F.2d 168

The contention of the appellant upon this state of facts is that its activities are entirely outside the scope of the Act. Commerce is defined by § 3(b) of the Act to mean "trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof". The Ice Company does not ship outside the State of North Carolina any of the ice manufactured by it, but sells and delivers it all to common carriers within the state, and so it is said that there is no interstate commerce on its part. All of the ice goes into the hands of ultimate consumers within the state, and the only transportation in interstate commerce occurs while the ice is being used by them in the operation of the trains. This transportation, it is said, is beside the point because goods after their delivery into the actual...

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28 practice notes
  • Walling v. Haile Gold Mines, No. 5059.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 28, 1943
    ...we hold that the Act applies to goods which may never come in competition with goods in other States. Hamlet Ice Co. v. Fleming, 4 Cir., 127 F. 2d 165, cert. denied, 317 U.S. 634, 63 S.Ct. 29, 87 L.Ed. ___; Atlantic Co. v. Walling, 5 Cir., 131 F.2d 518. For the reasons assigned, we are of t......
  • EC Schroeder Co. v. Clifton, No. 3176
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 27, 1946
    ...Rucker v. First National Bank of Miami, supra. Our attention is directed to the so-called ice cases, Hamlet Ice Co. v. Fleming, 4 Cir., 127 F.2d 165, certiorari denied, 317 U.S. 634, 63 S.Ct. 29, 87 L.Ed. 511; Atlantic Co. v. Walling, 5 Cir., 131 F.2d 518; Chapman v. Home Ice Co., 6 Cir., 1......
  • Atlantic Co. v. Citizens Ice & Cold Storage Co., No. 12713.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 28, 1949
    ...330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234; That ice sales to truckers were in interstate commerce: Hamlet Ice Co. v. Fleming, 4 Cir., 127 F.2d 165; Fleming v. Atlantic Co., D.C., 40 F.Supp. 654; and Gordon v. Paducah Ice Mfg. Co., D.C., 41 F.Supp. And on the point that the smallness of the......
  • Brennan v. Apartment Communities Corporation, Civ. A. No. 4435.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • May 22, 1973
    ...v. United States Cartridge Co., 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017 (1950)." 291 F.Supp. at 519. In Hamlet Ice Co. v. Fleming, 127 F. 2d 165, at pp. 170, 171 (4th Cir.), cert. denied, 317 U.S. 634, 63 S.Ct. 29, 87 L. Ed. 511 (1942), the Court "It seems clear that the exclusion clause ......
  • Request a trial to view additional results
28 cases
  • Walling v. Haile Gold Mines, No. 5059.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 28, 1943
    ...we hold that the Act applies to goods which may never come in competition with goods in other States. Hamlet Ice Co. v. Fleming, 4 Cir., 127 F. 2d 165, cert. denied, 317 U.S. 634, 63 S.Ct. 29, 87 L.Ed. ___; Atlantic Co. v. Walling, 5 Cir., 131 F.2d 518. For the reasons assigned, we are of t......
  • EC Schroeder Co. v. Clifton, No. 3176
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 27, 1946
    ...Rucker v. First National Bank of Miami, supra. Our attention is directed to the so-called ice cases, Hamlet Ice Co. v. Fleming, 4 Cir., 127 F.2d 165, certiorari denied, 317 U.S. 634, 63 S.Ct. 29, 87 L.Ed. 511; Atlantic Co. v. Walling, 5 Cir., 131 F.2d 518; Chapman v. Home Ice Co., 6 Cir., 1......
  • Atlantic Co. v. Citizens Ice & Cold Storage Co., No. 12713.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 28, 1949
    ...330 U.S. 767, 67 S.Ct. 1026, 91 L.Ed. 1234; That ice sales to truckers were in interstate commerce: Hamlet Ice Co. v. Fleming, 4 Cir., 127 F.2d 165; Fleming v. Atlantic Co., D.C., 40 F.Supp. 654; and Gordon v. Paducah Ice Mfg. Co., D.C., 41 F.Supp. And on the point that the smallness of the......
  • Brennan v. Apartment Communities Corporation, Civ. A. No. 4435.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • May 22, 1973
    ...v. United States Cartridge Co., 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017 (1950)." 291 F.Supp. at 519. In Hamlet Ice Co. v. Fleming, 127 F. 2d 165, at pp. 170, 171 (4th Cir.), cert. denied, 317 U.S. 634, 63 S.Ct. 29, 87 L. Ed. 511 (1942), the Court "It seems clear that the exclusion clause ......
  • Request a trial to view additional results

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