Mitchell v. McCarty

• Decision Date: 09 January 1957
• Docket Number: No. 11822.,11822.
• Parties: James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Basil McCARTY, Morris McCarty and Mark McCarty, Defendants. Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

239 F.2d 721 (1957)

James P. MITCHELL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Basil McCARTY, Morris McCarty and Mark McCarty, Defendants. Appellees.

No. 11822.

United States Court of Appeals Seventh Circuit.

January 9, 1957.

Stuart Rothman, Sol. of Labor, Bessie Margolin, Asst. Sol., U. S. Dept. of Labor, Washington, D. C., Herman Grant, Atty., U. S. Dept. of Labor, Chicago, Ill., Sylvia S. Ellison, Lawrence P. Hochberg, Attys., U. S. Dept. of Labor, Washington, D. C., for appellant.

Elmon M. Williams, Neal & Williams, William H. Williamson, Indianapolis, Ind., for defendants-appellees.

Before DUFFY, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.

DUFFY, Chief Judge.

This action was brought by the Secretary of Labor under Section 217 of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., to restrain defendants from violating the child labor provisions of the Act. Plaintiff and Defendants each moved for summary judgment. The District Court granted Defendants' motion and judgment was entered dismissing the complaint.

The complaint alleges defendants are co-partners in the operation of a farm establishment and in the planting, cultivation, harvesting, production and sale of tomatoes; that since September 2, 1955, defendants employed 48 employees in the planting, cultivation, harvesting and production of tomatoes, substantially all of which were produced for commerce within the meaning of the act, and have been shipped, delivered and sold from defendants' establishment with knowledge that shipment, delivery and sale thereof in processed form to persons and firms in states other than Indiana was intended. The complaint charged defendants with the employment of oppressive child labor by employing certain named persons as tomato pickers who were then less than sixteen years of age. The complaint further charged failure by defendants to keep adequate records with respect to the employment of minors under the age of eighteen.

Defendants filed a motion to dismiss claiming the Fair Labor Standards Act exempts farming or agriculture from the scope of the Act. The District Court denied this motion. Shortly thereafter defendants moved for summary judgment dismissing the complaint, and alleged the provisions of Section 212 of the Fair Labor Standards Act relating to child labor did not apply to any employee employed in agriculture outside of school hours for the school district where such employee was living while he was so employed, and that the district wherein the children described in the complaint were living was closed for summer vacation and did not reopen until September 6, 1955.

Defendants' motion for summary judgment was accompanied by an affidavit of the defendants wherein it was asserted that during the tomato-picking season in the months of July, August and September, 1955, affiants employed itinerant employees to pick tomatoes. Defendants further asserted that Clayborn Hess had been employed by them from August 20, 1955 to October 13, 1955, and that Perrie Anderson had been employed from August 20, 1955 to September 29, 1955. The affidavit then set forth that defendants did not employ the minor children of said Hess and Anderson to pick tomatoes or do other work on their farm. The affidavit shows that the nearest district school and high school to the McCarty farm opened for classes on September 6, 1955.

Thereafter plaintiff filed a motion for summary judgment supported principally by the affidavit of John Solbeck who was an investigator employed by the Wage and Hour Division of the Department of Labor. This affidavit asserted that on September 8, 1955 he, with another investigator, made an inspection of the McCarty farm and questioned persons thereon including Basil McCarty and Morris McCarty. That on said date the McCartys employed approximately forty-eight employees in harvesting and production of tomatoes. Thereafter the affidavit set forth in detail that certain named children, ranging in age from seven to sixteen years, were employed in picking tomatoes on the McCarty farm. An illustration of such allegations is as follows: "Irene Jeanette Anderson, James Robert Anderson, Nellie Sue Anderson, James Hess, Jimmy Hess picked tomatoes on the aforesaid farm establishment between the hours of 8 A. M. and 11:15 A. M. and between the hours of 12:30 P. M. and 3:15 P. M. on Tuesday, September 6, Wednesday, September 7 and Thursday, September 8, 1955." The affidavit further set forth that Irene Jeanette Anderson was born on November 21, 1944, and that she attended the third grade in Chrisman Grade School, Chrisman, Illinois in May, 1955. That James Robert Anderson was born November 27, 1946, and attended the second grade in Chrisman Grade School, Chrisman, Illinois in May, 1955; that Nellie Sue Anderson was born June 23, 1948 and attended the first grade in Chrisman Grade School, Chrisman, Illinois in May, 1955; that James Hess was born August 11, 1941 and attended the fifth grade in Chrisman Grade School, Chrisman, Illinois in May, 1955, and that Jimmy Hess was born on June 30, 1944, and attended the fourth grade in Chrisman Grade School, Chrisman, Illinois in May, 1955.

The affidavit further asserted that on September 8, 1955, harvesting operations were performed by three separate crews of tomato pickers, and stated that six of said minors picked tomatoes with one such crew under the supervision of Morris McCarty, and that three of said minors picked tomatoes with the second crew which was under the supervision of Arnold Spears, a foreman in the employ of defendants; that no persons under sixteen years of age were found working with the third crew. The affidavit averred further that Basil McCarty and Morris McCarty were present in the field when the named minors were there picking tomatoes.

Defendants argue here that they do not deny or admit that minors were seen picking tomatoes on their farm on September 8, 1955, but they point out that in their affidavit they did say that they did not employ any...