Martin v. Bouldin Fruit Co.

• Decision Date: 10 June 1947
• Docket Number: 31212.
• Citation: 181 P.2d 995,198 Okla. 654,12 Lab.Cas. P 63,1947 OK 187
• Parties: MARTIN et al. v. BOULDIN FRUIT CO. et al.
• Court: Oklahoma Supreme Court

181 P.2d 995

198 Okla. 654, 12 Lab.Cas. P 63,832, 1947 OK 187

MARTIN et al. v. BOULDIN FRUIT CO. et al.

No. 31212.

Supreme Court of Oklahoma

June 10, 1947

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

Action by Farril B. Martin and another against Bouldin Fruit Company and another to recover compensation under the Fair Labor Standards Act. From an order sustaining a demurrer of named defendant, named plaintiff appeals.

Affirmed.

Syllabus by the Court.

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.

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

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

ARNOLD Justice.

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.

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 33¢ per hour, and overtime pay would be at the rate of 50¢ 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.

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.

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 4:00 o'clock; that from 4:00 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 12:00 o'clock noon he drove the truck making deliveries, and from about 1:00 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.

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.

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 is broken, Bouldin would inspect the car to see whether he would accept it or not, wouldn't he? A. Yes, sir.

'Q. Then if he accepted it, and not until he did accept it, would he undertake to unload it, isn't that true? A. Yes, sir.

'Q. Now, these cars were then delivered to Bouldin for unloading after he had accepted them that was always true, wasn't it? A. Yes, sir.'

It is disclosed by the record in this case that the shipments of fruit and vegetables received by defendant were not for the purpose of filling orders previously placed by local customers for specific goods or quantities thereof but that such shipments, when received, constituted defendant's wholesale stock in trade from which he filled orders as they came in. As a matter of fact, as testified to by plaintiff, these carload shipments were never spotted for unloading at defendant's warehouse until after the seals on the car had been broken, the contents inspected and the shipments accepted by defendant.

After title to the various shipments had become vested in defendant by inspection and acceptance of the contents of the cars and after delivery had been accomplished by the spotting of the opened cars on the warehouse siding, the defendant used the cars as adjuncts to its warehouse during the free time granted for unloading before demurrage attached. The activities of plaintiff and the other employees of defendant in unloading the shipments, previously accepted by and delivered to defendant, were merely steps taken in the preparation of the merchandise for local distribution to retail dealers when orders should be received and accepted therefor. A situation similar to this, so far as the application of legal principles is concerned, was considered by the Supreme Court of California in the case of McDaniels, et al. v. Clavin, 22 Cal.2d 61, 136 P.2d 559, 560. In that case the wholesaler was engaged in the poultry business and when he had inspected and accepted a shipment of poultry the same was placed in cold storage to await the needs of his business. The plaintiff in that case was a general employee, just as was the plaintiff in the case at bar, and his claim for overtime compensation was based on his activities in transferring this poultry from the cold storage plant to the place of business of his employer where it was prepared for local distribution. In denying the applicability of the Fair Labor Standards Act to the claim of plaintiff in that case the California court said:

'The evidence shows that defendant used the cold-storage warehouse as an adjunct to his plant, and that the poultry was left there until taken to meet the needs of local customers. Plaintiff's activity in taking the poultry from the warehouse was simply a step in the local distribution of the poultry and is not covered by the act.'

This court in the case of Brooks Packing Co. v. Willis, 192 Okl. 538, 137 P.2d 923, 924, considered a claim somewhat similar to the claim of plaintiff in the instant case, the facts therein making applicable the rule of construction applied in this case.

In the third paragraph of the syllabus this court used the following language:

'Defendant, operator of a wholesale establishment, purchased certain commodities outside of the state for sale to retail trade within the state. In an action by plaintiff, employee of defendant, to recover the minimum wages fixed by the Fair Labor Standards Act, supra, it was shown that plaintiff's duties consisted of packing said commodities and shipping the same to the retail trade, but there was no showing that said goods had not acquired a fixed situs within the state and were not held for local disposition or use. Held, that plaintiff failed to sustain the burden of proof that he was engaged in interstate commerce within the meaning of the Act, or in the production of goods for interstate commerce.'

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