Martin v. Bouldin Fruit Co., Case Number: 31212

• Court: Supreme Court of Oklahoma
• Citation: 1947 OK 187,198 Okla. 654,181 P.2d 995
• Docket Number: Case Number: 31212
• Parties: MARTIN v. BOULDIN FRUIT CO.
• Decision Date: 10 June 1947

1947 OK 187
181 P.2d 995
198 Okla. 654

MARTIN
v.
BOULDIN FRUIT CO.

Case Number: 31212

Supreme Court of Oklahoma

Decided: June 10, 1947

Syllabus

¶0 MASTER AND SERVANT - COMMERCE - Provisions of Federal Fair Labor Standards Act not applicable to employee of wholesaler of fruit and vegetables supplying only local retailers.

The provisions of the Federal Fair Labor Standards Act (29 U.S.C.A. §§ 201 to 219, inclusive) are not applicable to an employee of a wholesaler of fruit and vegetables, supplying only local retailers, which buys merchandise from dealers in other states delivered at its warehouse, coming to rest and becoming a part of the stock of the wholesaler, from which it is sold and delivered to the retail trade, much of it in the same condition in which received, where the wholesaler owns all its merchandise, makes its own deliveries and makes no sales on commission or on orders with shipment direct from the foreign dealer or producer to the retail purchaser.

Appeal from District Court, Oklahoma County; Albert C. Hunt, Judge.

Action by Farril B. Martin and another against the Bouldin Fruit Company and another. From an adverse judgment, named plaintiff appeals. Affirmed.

Paul L. Washington and Albert D. Lynn, both of Oklahoma City, for plaintiffs in error.

Cheek, Gibson, Savage & Benefield, James Alex Cheek, and John D. Cheek, all of Oklahoma City, for defendants in error.

ARNOLD, J.

¶1 This is an appeal from an order sustaining the demurrer of defendant in error, defendant below, to the evidence of plaintiff in error in an action wherein plaintiff sought to recover compensation for alleged overtime work performed by him under the provisions of the Fair Labor Standards Act of 1938. 29 U.S.C.A. § 201 et seq. One Alfred Canada was a party plaintiff but he does not appeal and is not a party plaintiff in error. Plaintiff commenced this action against the Bouldin Fruit Company, a corporation, and M.H. Stephens Produce Company, a corporation. The case was tried to the court without a jury and at the close of plaintiff's evidence defendants demurred separately to plaintiff's evidence. The demurrer of the Bouldin Fruit Company was sustained and plaintiff admitted in open court that the demurrer of that defendant was well taken.

¶2 Defendant was engaged in the operation of a wholesale fruit and vegetable business in Oklahoma City; plaintiff alleges that defendant maintained a warehouse where it received and stored its goods and merchandise, received both from intrastate and interstate shipments; that from October 24, 1938, to September 24, 1939, plaintiff was employed by said defendant; that his duties were loading and unloading all fruit and vegetables from railway cars and trucks, work in the warehouse, driving delivery trucks and the like; that plaintiff was employed in commerce and the production of goods for commerce within the meaning of the Fair Labor Standards Act of 1938; that during said period he was paid for a work week of 51 hours at a wage of $18.02 per week, which was in excess of the maximum weekly hours allowable under said act and that he was not paid one and one-half times the regular rate of pay for such excess hours; that his regular rate of pay was 33â?º per hour, and overtime pay would be at the rate of 50â?º per hour; that during said period plaintiff worked overtime a total of about 870 hours, which would amount to $452.78; that he was entitled to said sum and an additional equal amount as liquidated damages and a reasonable attorney's fee.

¶3 The evidence shows that defendant's business was that of selling at wholesale fruit and vegetables to retail dealers within the State of Oklahoma. There is no evidence that defendant ever sold or shipped any merchandise outside of the State of Oklahoma.

¶4 Plaintiff testified in substance that during the month of October, 1938, he was working as a warehouseman; that shortly thereafter he drove a delivery truck delivering orders to retail dealers in Oklahoma City and some nearby towns; that during the period involved he went to work every morning about 4 o'clock; that from 4 o'clock to about 6: 30 a. m. he worked in the warehouse putting up orders for the day's delivery, from about 6:30 a. m. until 12 o'clock noon he drove the truck making deliveries, and from about 1 o'clock p. m. until he quit work in the evening, 6 to 9 p. m., he "worked in the warehouse unloading cars and trucks and rearranging merchandise and whatever there was to do"; that defendant sometimes had three or four cars at a time at the warehouse to be unloaded; that occasionally he would help unload a car at other sidings; that defendant handled fruits and vegetables shipped in cars or trucks from all over the country and from several different states; that some produce was bought locally.

¶5 Plaintiff testified that he and his wife kept a record of the number of hours plaintiff worked every day. This record was introduced in evidence and plaintiff's wife testified that she made the entries correctly as directed by the plaintiff.

¶6 On cross-examination plaintiff was asked as to the manner in which carload shipments received by defendant were handled upon arrival. The questions and answers relating to this are as follows:

"Q. Now, when the seal was broken, Bouldin would inspect

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