Musteen v. Johnson, No. 12222.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSTONE, SANBORN, and RIDDICK, Circuit
Citation133 F.2d 106
Decision Date05 February 1943
Docket NumberNo. 12222.
PartiesMUSTEEN et al. v. JOHNSON et al.

133 F.2d 106 (1943)

MUSTEEN et al.
v.
JOHNSON et al.

No. 12222.

Circuit Court of Appeals, Eighth Circuit.

February 5, 1943.


Warner W. Gardner, Sol., U. S. Department of Labor, and Mortimer B. Wolf, Asst. Sol., U. S. Department of Labor, both of Washington, D. C., Llewellyn B. Duke, Regional Atty., U. S. Department of Labor, of Dallas, Tex., and Irwin S. Mason, Atty., U. S. Department of Labor, of Washington, D. C., for Administrator of Wage and Hour Division, U. S. Department of Labor, amicus curiae.

Before STONE, SANBORN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from a judgment dismissing the complaint of the plaintiffs (appellants) in an action brought by them, under § 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 1069, 29 U.S. C.A. § 216(b), to recover unpaid overtime compensation alleged to be due them from the defendants (appellees) by virtue of § 7 of the Act, 52 Stat. 1063, 29 U.S.C.A. § 207, together with an equal amount as liquidated damages. The question for decision is whether the District Court was justified in dismissing the complaint.

The only brief filed is that of the Administrator of the Wage and Hour Division,

133 F.2d 107
United States Department of Labor, as amicus curiae. With leave of the Court, the plaintiffs have submitted the case upon this brief. The defendants have submitted nothing by way of argument, either oral or written

In substance, the complaint alleges that at all times which are material, the defendants, who are citizens of Benton County, Arkansas, were engaged in business as wholesale dealers and distributors of petroleum products which they "caused to be used, transported, and handled in commerce in the States of Oklahoma and Arkansas, and between said states"; that the plaintiffs "were employees of the defendants engaged in commerce and rendered services on behalf of the defendants in connection with the said activities of the defendants while said defendants were so selling, using, transporting, distributing, and handling the said products"; that "the principal service rendered by the plaintiff L. J. Musteen was in operating a truck of the defendants from Benton County in the State of Arkansas to Pawnee and Payne Counties in the State of Oklahoma, and in transporting for the defendants by means of said truck gasoline, oil, and petroleum products" from points in Oklahoma to points in Arkansas; that "the service rendered by the plaintiff Jess C. Tarr was in operating a truck and transporting and making deliveries of said commodities entirely within the State of Arkansas in wholesale quantities to customers of the defendants"; that the "plaintiff Tarr did not operate a truck or haul said property defendants' products across state lines"; that the defendants, by virtue of § 7 of the Fair Labor Standards Act of 1938, are indebted to the plaintiff Musteen for overtime worked by him from October 23, 1939, to August 30, 1941, and are similarly indebted to the plaintiff Tarr for overtime worked by him from July 29, 1940, to May 31, 1941.

The defendants moved to dismiss the complaint on the general ground that it fails to state a claim upon which relief can be granted,1 and upon the specific ground "that it is alleged in the complaint that plaintiffs were employed by defendants to transport petroleum products by motor trucks for the defendants, while engaged as private carriers in interstate commerce from points in the State of Oklahoma to points...

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35 practice notes
  • Liken v. Shaffer, Civil Action No. 62.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • January 26, 1946
    ...to any relief under any state of facts which could be proved in support of the claims asserted by him. Musteen v. Johnson, 8 Cir., 1943, 133 F.2d 106; Cool v. International Shoe Co., 8 Cir., 1944, 142 F.2d 318. While the 8th Circuit Court of Appeals in Leimer v. State Mutual Life Assurance ......
  • Walling v. McKay, Civ. No. 155.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • December 16, 1946
    ...F.2d 616, and the Act must be given a liberal construction in accordance with its obvious intent and purpose. Musteen v. Johnson, 8 Cir., 133 F.2d 106. A court should assume that all employees engaged in interstate commerce, so far as reasonably possible, should be made subject to the provi......
  • Rhodes v. Meyer, Civ. No. 01682.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • December 10, 1963
    ...Farmers' Protective Union, Inc. v. Great Atlantic and Pacific Tea Company of America (8 Cir.) 131 F.2d 419; Musteen v. Johnson (8 Cir.) 133 F.2d 106; Publicity Building Realty Corporation v. Hannegan (8 Cir.) 139 F.2d 583; Cool v. International Shoe Company (8 Cir.) 142 F.2d 318; Dennis v. ......
  • Rhodes v. Van Steenberg, Civ. No. 01784.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • December 16, 1963
    ...Louisiana Farmers' Protective Union, Inc. v. Great Atlantic and Pacific Tea Company (8 Cir.) 131 F.2d 419; Musteen v. Johnson (8 Cir.) 133 F.2d 106; Publicity Building Realty Corporation v. Hannegan (8 Cir.) 139 F.2d 583; Cool v. International Shoe Company (8 Cir.) 142 F.2d 318; Dennis v. V......
  • Request a trial to view additional results
35 cases
  • Liken v. Shaffer, Civil Action No. 62.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • January 26, 1946
    ...to any relief under any state of facts which could be proved in support of the claims asserted by him. Musteen v. Johnson, 8 Cir., 1943, 133 F.2d 106; Cool v. International Shoe Co., 8 Cir., 1944, 142 F.2d 318. While the 8th Circuit Court of Appeals in Leimer v. State Mutual Life Assurance ......
  • Walling v. McKay, Civ. No. 155.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • December 16, 1946
    ...F.2d 616, and the Act must be given a liberal construction in accordance with its obvious intent and purpose. Musteen v. Johnson, 8 Cir., 133 F.2d 106. A court should assume that all employees engaged in interstate commerce, so far as reasonably possible, should be made subject to the provi......
  • Rhodes v. Meyer, Civ. No. 01682.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • December 10, 1963
    ...Farmers' Protective Union, Inc. v. Great Atlantic and Pacific Tea Company of America (8 Cir.) 131 F.2d 419; Musteen v. Johnson (8 Cir.) 133 F.2d 106; Publicity Building Realty Corporation v. Hannegan (8 Cir.) 139 F.2d 583; Cool v. International Shoe Company (8 Cir.) 142 F.2d 318; Dennis v. ......
  • Rhodes v. Van Steenberg, Civ. No. 01784.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • December 16, 1963
    ...Louisiana Farmers' Protective Union, Inc. v. Great Atlantic and Pacific Tea Company (8 Cir.) 131 F.2d 419; Musteen v. Johnson (8 Cir.) 133 F.2d 106; Publicity Building Realty Corporation v. Hannegan (8 Cir.) 139 F.2d 583; Cool v. International Shoe Company (8 Cir.) 142 F.2d 318; Dennis v. V......
  • Request a trial to view additional results

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