Johnson v. Masonic Bldg. Co.

• Decision Date: 30 November 1943
• Docket Number: No. 10748.,10748.
• Citation: Johnson v. Masonic Bldg. Co., 138 F.2d 817 (5th Cir. 1943)
• Parties: JOHNSON et al. v. MASONIC BLDG. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

138 F.2d 817 (1943)

JOHNSON et al. v.MASONIC BLDG. CO.

No. 10748.

Circuit Court of Appeals, Fifth Circuit.

November 30, 1943.

Robert A. Persky, of Augusta, Ga., and Lucien H. Boggs, of Jacksonville, Fla., for appellants.

W. Inman Curry, of Augusta, Ga., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

The appellee owns a six-story office building in Augusta, Ga., the two upper floors of which are used for lodge purposes, and the remainder are rented out to numerous tenants for offices.Most of the tenants are professional or business men doing local business only.A few of the offices are used for executive offices of companies engaged in interstate business.Thus there were three railroad ticket agencies; and Merry Bros. Brick & Tile Company produces brick and tile for interstate shipment at its plant elsewhere in Augusta; and Southeastern Bituminous Company produces goods for commerce in a nearby plant.Appellee furnishes elevator and janitor service for all the floors, and heat in winter.Its employees engaged in such services sought to recover additional wages and overtime pay under the Fair Labor Standards Act,29 U.S.C.A. § 201 et seq.The court found that they were not engaged in commerce or in the production of goods for commerce, and not covered by the Act; and denied recovery.They appeal.

As the record stands after settlement thereof by the District Judge, there is no evidence that any goods are produced for commerce in the building itself.The building employees are not doing anything that is necessary to or even directly contributes to such production.The case is not like Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, where the building was devoted to the production of such goods.If the office men of Merry Bros. Brick & Tile Company, and Southeastern Bituminous Company can be said to be producers of goods, the appellants, employed by another employer with no especial reference to the business of any tenant, cannot be held to be so engaged because these tenants were producing goods elsewhere.

So as to commerce.The ticket agents of the railroads, and the office men of Merry Bros. Brick & Tile Company and Southeastern Bituminous Company who kept books, made invoices, collected accounts and the like touching their interstate shipments, were engaged in commerce.Fleming v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395.Affirmed Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. ___.But the servants in the building employed by another master and merely contributing to their comfort and...