KENNERLY, District Judge.
This is a suit by plaintiff, an employee, against defendants, his employers for wages, overtime compensation, damages, attorney's fees, etc., under the Fair Labor Standards Act of 1938, Sections 201 to 219, Title 29 U.S.C.A., and this is a partial hearing under Rule 42(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, of the case on the merits. Plaintiff affirms and defendants deny that the facts bring them within the scope of Sections 6 and 7 of the Act. Defendants say, however, that if they do, they are exempt under Section 13 of the Act. This, plaintiff denies.
(a) The main facts have been stipulated as follows:
"It is agreed and stipulated between the parties to the above entitled and numbered cause, acting herein by and through their respective attorneys thereunto duly authorized, as follows:
"Threlkeld Commissary Company (hereinafter called `defendant') is a partnership composed of M. C. Threlkeld, J. H. Threlkeld, and M. C. Threlkeld, Jr. Each of these individuals is a citizen and resident of the State of California. It is engaged in the business of providing meals for certain employees of railway companies commonly known as maintenance of way employees who perform work upon the right of way, lines, and tracks of railway companies. Defendant, by a contractual arrangement with Texas and New Orleans Railroad Company (hereinafter called `railroad company'), furnishes boarding service which is available to the railroad company's maintenance of way employees. The board paid by such employees varies in accordance with the type of gang with which they are working, the employees in the B. & B. gangs paying the highest board and the employees in track entra gangs paying the lowest board. Most of the maintenance of way employees of the railroad company board with the defendant but some do not. In addition to furnishing meals to such employees the defendant also furnishes bedding to the employees boarding with it. Employees boarding with the defendant sign wage deduction orders authorizing the railroad company to deduct from the wages of such employees the amount of board due by said employees and to pay the same over to defendant. Employees boarding with the defendant are not given credit for single meals missed (except when away on company business) but in all cases are given credit when three or more consecutive meals are missed after notice to the defendant.
"Meals served to the railroad employees above mentioned are prepared and served in a cook and dining car running on the railroad's rails and attached to a particular gang or outfit. Employees of the railroad other than those in the gang or outfit to which a particular cook and dining car is attached on occasions are served therein and such employees pay at a fixed price per meal. Each cook and dining car is in charge of a cook employed by the defendant whose duty it is to cook and serve meals in the dining car and to keep the kitchen and dining car clean and suitable for the serving of meals. He is also required to keep an account of the meals served. In case of emergency work done by the maintenance of way employees the cook is required to prepare and serve meals during such emergency and to follow the crew to the point of such emergency work. Plaintiff L. McLeod was employed by defendant as a cook during the period from July, 1939, to May, 1941, and performed the duties of a cook as hereinbefore stated. He worked exclusively at points on the lines of the railroad company within the state of Texas. The foreman employed by the railroad company in charge of each gang to which a dining and cooking car is attached acts on behalf of defendant to check the supplies and receipts of each car and for these services he receives free board or in lieu thereof a monthly cash consideration.
"Texas and New Orleans Railroad Company is a common carrier engaged in the interstate transportation of both goods and persons. Employees of the railroad in the gangs for which defendant furnishes board are engaged in the work of constructing and maintaining the right of way and railroad lines of the railroad company in proper condition for the interstate transportation of persons and property by said railroad company. The practice of railroad companies with respect to the furnishing of meals for maintenance of way employees varies — some railroads, as the Texas and New Orleans Railroad Company, make arrangements by contract for the furnishing of such meals or board by a commissary company, some railroads operate cook and dining cars for themselves for the benefit of such employees, some railroads furnish cook and dining cars to the employees who prepare and serve their own meals therein, and some railroads leave such employees entirely to their own devices for the procuring of their meals.
"Defendant, in addition to its operations in Texas on the lines of the Texas and New Orleans Railroad Company, has similar operations, under contracts with other railroads, in the states of Arizona, California, Colorado, Louisiana, Nevada, New Mexico, Oregon, and Utah.
"The parties agree that if the court determines that plaintiff is covered by the Fair Labor Standards Act of 1938 they will make a bona fide effort to stipulate the amount of damages, if any, due to plaintiff."
(b) A part of the evidence was heard before Honorable James V. Allred before his resignation. I quote from his memorandum of May 9, 1942:
"There was one matter which I regarded as immaterial, upon which I heard some evidence and made a finding from the bench. It was reported, as I recall.
"The question upon which I heard evidence was whether the defendants'...
