McComb v. Herlihy

• Citation: 161 F.2d 568
• Decision Date: 07 May 1947
• Docket Number: No. 5579.,5579.
• Parties: McCOMB v. HERLIHY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

161 F.2d 568 (1947)

McCOMB v. HERLIHY et al.

No. 5579.

Circuit Court of Appeals, Fourth Circuit.

May 7, 1947.

Frederick U. Reel, Atty., United States Department of Labor, of Washington, D. C. (William S. Tyson, Solicitor, and Bessie Margolin, Asst. Solicitor, both of Washington, D.C., George A. Downing, Regional Atty., of Atlanta, Ga., Morton Liftin and James F. O'Hare, Attys., United States Department of Labor, both of Washington, D. C., on the brief), for appellant.

John H. Nolen, of Spartanburg, S.C. (Odom, Bostick & Nolen, of Spartanburg, S.C., and P. L. Felder, Jr., of Orangeburg, S.C., on the brief), for appellees.

Before GRONER, Chief Justice, United States Court of Appeals for District of Columbia, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This suit was brought under Section 17 of the Fair Labor Standards Act, 29 U.S. C.A. § 217, to enjoin a partnership known as the Power Oil Company from violation of the provisions of the statute as to the wages and hours of employment of their employees and the keeping of records in regard thereto. The suit was dismissed by the District Judge on the ground that the employees affected were not engaged in interstate commerce or in the production of goods therefor. It was conceded that the requirements of the statute were not observed and that the employees were not engaged in the production of goods for commerce. The question was whether they were engaged in interstate commerce within the meaning of the Act.

The firm maintained an office and warehouse at Orangeburg, South Carolina, and was engaged in the purchase and wholesale distribution of gasoline, motor oil, fuel oil, tires, batteries and other automobile supplies. All of the sales and deliveries by the business were made in the State of South Carolina and the greater part of the merchandise was purchased in that state. But approximately twenty per cent. of the goods distributed by the firm, such as tires, batteries and motor oil, was purchased outside of South Carolina and shipped into the state by rail, truck or express. Goods shipped by railroad came in cars that were spotted on a spur track from which they were unloaded into the warehouse. Incoming truck and express shipments were unloaded at a platform at the warehouse. Employees of the business assisted in the ordering, keeping account of and paying for the goods purchased outside the state; and when these goods arrived at the warehouse, employees unloaded them, inventoried them, paid the express charges and performed the usual duties of receiving goods. All the employees worked interchangeably on all types of work in their departments, and no attempt was made to segregate the interstate from the intrastate activities. The goods purchased outside the state were not ordered or destined for special customers, and there was no continuous movement of particular goods from the producer outside the state to customers within the state.

There can be no doubt that one who buys and imports goods across state lines for sale and distribution within his state is engaged in interstate commerce; nor can it be doubted that the employees of such an importer who work at the buying and receiving of goods across state lines are engaged in such commerce. So much was expressly decided in Fleming v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395, 398, which in this respect was affirmed on certiorari to the Supreme Court in Walling v. Jacksonville Paper Co., 317 U.S. 564, 566, 63 S.Ct. 332, 87 L.Ed. 460. In that case, as in the pending case, the employees, who were held subject to the Act, were engaged in writing letters and performing other work in the purchase and receipt of out-of-state goods, or were engaged in unloading the goods from railroad cars and trucks upon arrival at the employer's warehouse and performed the other usual duties of receiving goods. The decision, however, was not confined to activities relating to the purchase and receipt of out-of-state goods, for it was found that a great part of the company's business consisted in the sale and delivery within the state of goods procured outside the state in conformity with prior orders or contracts or understandings with their customers; and it was held that such goods retained their interstate character until finally delivered to the customer, even though they came to a temporary pause in the company's warehouse, and that employees who handled them at any time before delivery to the customer were engaged in interstate commerce.

This latter feature has no counterpart in the pending case since the goods imported by the partnership were not intended for specific customers and the interstate movement came to an end when the goods...