McComb v. Robertson, Civ. No. 907.
| Citation | 101 F. Supp. 1018 |
| Decision Date | 12 January 1952 |
| Docket Number | Civ. No. 907. |
| Parties | McCOMB v. ROBERTSON. |
| Court | U.S. District Court — Middle District of Tennessee |
Beverley R. Worrell, Regional Attorney, U. S. Department of Labor, Birmingham, Ala., David V. Manker and Marvin M. Tincher, Attys., Wage and Hour Division, U. S. Department of Labor, Nashville, Tenn., for plaintiff.
E. D. Jackson, of Nashville, Tenn., for defendant.
The cause was submitted upon the pleadings, evidence, exhibits, and argument of counsel for plaintiff and defendant, and, after due consideration thereof, the Court enters its Findings of Fact and Conclusions of Law, as follows:
Findings of Fact
1. Defendant Hugh W. Robertson resides in Nashville, Davidson County, Tennessee, where he is and for several years past has been sole owner and operator of a place of business operated under the name Robertson Tire Company and located at 1620 West End Avenue. At that place of business defendant is and at all times herein mentioned was engaged in the business of selling and distributing automobile and truck tires, tubes, accessories, gasoline and oil, and in recapping and vulcanizing automobile and truck tires.
2. By agreement of the parties prior to trial of the case, and for the purpose of shortening the time required for trial, evidence with respect to coverage and exemption issues was limited to the period July 1 through December 31, 1947, that being the last full half-year period preceding the filing of this action.
3. At all times covered by the complaint defendant employed approximately seventeen employees in and about his said place of business in Nashville.
4. Two of defendant's employees, Lowery and Hutcherson, were employed during the period under consideration, in defendant's recapping plant where they regularly engaged in recapping and vulcanizing automobile and truck tires. During every workweek these employees recapped and vulcanized tires, some of which were thereafter used for hauling cargoes of merchandise in transit between points in Tennessee and points outside Tennessee, and some of which were placed on vehicles used in the production of goods for shipment to points outside the State of Tennessee.
5. Some of the customers for whom defendant's recappers, Lowery and Hutcherson, performed recapping and vulcanizing of tires during the period, and the amounts paid for such work were as follows:
Recap Vulcanizing Total
Waverly Transfer Company $ 55.79 $ 13.07 $ 68.86
Centerville Transfer Company 195.02 25.31 220.33
Mt. Pleasant Transfer Company 74.64 20.10 94.74
Washington Manufacturing Company 102.02 11.13 113.15
W. G. Bush & Company 114.08 155.30 269.38
T. L. Herbert & Sons Company 446.66 587.46 1034.12
Southeastern Motor Truck Lines 165.48 165.48
Tennessee Biscuit Company 9.75 9.75
Hoover Motor Express Inc. 670.72 83.43 754.15
Nashville Gas & Heating Company 65.58 2.50 68.08
Cline & Bernheim 35.20 95.00 130.20
Cline & Doochin 41.53 41.53
C. B. Ragland & Company 1473.88 149.08 1622.96
Kentucky Recappers 11.00 11.00
__________ _________ ________
Total $3410.07 $1193.66 $4603.73
6. The uses to which the tires so recapped and vulcanized by defendant's recappers were put were as follows:
(a) Waverly Transfer Company was engaged in general hauling of freight between Nashville, Tennessee, and Waverly, Tennessee. 24.2 percent of its revenue during the period under consideration was derived from the hauling of goods in interstate commerce by interchange with other carriers. Tires recapped and vulcanized by defendant's recappers were used interchangeably by Waverly Transfer Company on motor equipment used in all its hauling.
(b) Mt. Pleasant Transfer Company was engaged in general hauling of freight between various points within the State of Tennessee. During the period under consideration approximately 3 to 4 percent of its total revenue was derived from the hauling of goods in interstate commerce through interchange with other carriers. In addition, this company hauled during the same period a substantial amount of materials each week between plants of Victor Chemical Company, which materials were used by the latter company in its production of goods for shipment outside the State of Tennessee. Tires recapped and vulcanized by defendant's recappers were used interchangeably on motor equipment operated by Mt. Pleasant Transfer Company in all its hauling.
(c) Centerville Transfer Company during the same period derived approximately 10 percent of its total revenue from the hauling of goods in interstate commerce through interchange with other carriers. In addition, this company hauled materials during the same period for Tennessee Products Company, which materials were used in the manufacture of goods which were shipped outside the State of Tennessee. Tires recapped and vulcanized by defendant's recappers were used interchangeably on motor equipment operated by Centerville Transfer Company in all types of its hauling.
(d) Washington Manufacturing Company is engaged at its plants in Tennessee and Kentucky in the manufacture of work clothes. 75 to 80 percent of its total production is shipped from Tennessee to other states. Tires recapped and vulcanized by defendant's recappers during the period under consideration were all used on motor equipment operated by Washington Manufacturing Company in interplant hauling. A substantial amount of such hauling was between the company's Nashville warehouse and its plants in Kentucky.
(e) W. G. Bush and Company was engaged during the period under consideration in production of bricks, approximately 14.7 percent of which were shipped to points outside the State of Tennessee. Tires recapped and vulcanized by defendant's recappers were used interchangeably on all the company's trucks both for local deliveries and for hauling bricks about the yards and to railroad cars for loading prior to their being shipped out of state.
(f) T. L. Herbert & Sons Company during the same period was engaged in the business of selling construction materials. It furnished such materials to the City of Nashville and to Davidson County for paving and repairing streets and roads, to contractors for the same uses and to Southern Bell Telephone Company for use in extending and enlarging the latter's building. T. L. Herbert & Sons also supplied a small amount of materials directly to dealers and construction firms in states other than Tennessee. Tires which were recapped and vulcanized by defendant's recappers were used on motor equipment engaged in all such types of hauling and delivering.
(g) Southeastern Motor Truck Lines, Inc., is an interstate carrier and during the period under consideration 85 percent of its business involved the hauling of goods in interstate commerce. Tires recapped and vulcanized by defendant's recappers were used on Southeastern's vehicles wherever needed in such hauling.
(h) Tennessee Biscuit Company sold approximately 40 percent of its total production outside the State of Tennessee during the period under consideration. Three of its 14 tractor-trailer combinations operating out of Nashville operated over routes which took them into Kentucky, Alabama and Mississippi each week. Tires recapped and vulcanized by defendant's recappers were used interchangeably by Tennessee Biscuit Company on all of its 14 vehicles including those which regularly hauled goods to points outside the State of Tennessee.
(i) Hoover Motor Express, Inc., is an interstate carrier, and approximately 66 percent of its business during the period under consideration involved the hauling of goods in interstate commerce. All the tires recapped and vulcanized for this company by defendant's recappers were used on vehicles which hauled interstate cargo.
(j) Nashville Gas and Heating Company is a public utility engaged in the distribution of natural gas to customers in Nashville and vicinity. The gas which it sells and distributes moves in a...
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