Owin v. Liquid Carbonic Corporation, Civil Action No. 463.

• Decision Date: 19 December 1941
• Docket Number: Civil Action No. 463.
• Parties: OWIN v. LIQUID CARBONIC CORPORATION.
• Court: U.S. District Court — Southern District of Texas

42 F. Supp. 774

OWIN v. LIQUID CARBONIC CORPORATION.

Civil Action No. 463.

District Court, S. D. Texas, Houston Division.

December 19, 1941.

J. W. Cherry and G. W. Staton, both of Houston, Tex., for plaintiff.

Baker, Botts, Andrews & Wharton and J. C. Hutcheson, III, all of Houston, Tex., for defendant.

KENNERLY, District Judge.

This is a suit by Plaintiff against Defendant under the Fair Labor Standards Act of 1938, Sections 201 to 219, Title 29 U.S.C.A. Plaintiff alleges that he was an employee of Defendant from the effective date of the Act (October 24, 1938) to January 13, 1940, that during such time, the business of Defendant and the character of service performed by Plaintiff came within the scope of the Act, and that he worked more hours per week than permitted by such Act. He sues for pay for 1789 hours overtime, penalty, and attorney's fees.

Defendant denies and combats Plaintiff's claim, says that Plaintiff, as its employee, was exempt from the provisions of the Act under Section 13 thereof, Section 213, Title 29 U.S.C.A., in that Plaintiff was employed in a bona fide executive or administrative capacity, and also says that even if Defendant and Plaintiff were within the scope of the Act, the evidence shows that Plaintiff has, within the meaning of the Act, been paid in full for all the time he worked. Defendant also claims that that portion of Plaintiff's claim which accrued prior to February 21, 1939, two years prior to the filing of this suit (February 20, 1941), is barred by the Texas Two Year Statute of Limitation, which Statute Defendant pleads.

The facts are substantially as follows:

(a) Plaintiff was employed by Defendant for some time prior to the effective date of the Act (October 24, 1938). He was employed by Defendant from October 24, 1938, to January 13, 1940, and the hours he actually worked each week during such time are shown by records and are set forth in Exhibit "A" attached to Defendant's Amended Answer filed August 26, 1941. The time ranged from 64 to 80 hours per week.

(b) Prior to the effective date of the Act, Defendant paid Plaintiff a flat salary of $160 per month, and there was no change after the Act became effective. There was no agreement between Plaintiff and Defendant that any part of the $160 per month was for regular time under the Act or any part for overtime under the Act.

(c) Defendant is a corporation organized under the Laws of the State of Delaware, with one of its branch offices and plants located in the City of Houston, in this District and Division, where it was engaged in the intrastate manufacture and sale of carbonic gas and also in the intrastate sale of dry ice. Approximately two-thirds of its gross income came from the manufacture and sale of carbonic gas, and approximately one-third from the sale of dry ice. The total sales of dry ice were approximately 6,000 pounds per day, or 42,000 pounds per week. All the carbonic gas was manufactured and sold within the State of Texas. All of the dry ice was sold within the State of Texas, except about 300 or 400 pounds per week which was shipped to one customer (Borden Sales Company) in Lake Charles, Louisiana.

The dry ice which Defendant sold was manufactured by Defendant in Defendant's plants in Dallas, Texas, and Ada, Oklahoma, and shipped to Houston to Defendant by railroad and trucks.

(d) The parties have filed the following Stipulation:

"1. That the Defendant Liquid Carbonic Corp. had no facilities at its Houston plant to manufacture dry ice during the period at issue in this cause.

"2. That the Liquid Carbonic Corp. received two (2) to three (3) freight carloads per week of dry ice from its Ada, Oklahoma, plant during the summer months and about three (3) truckloads per week during the winter months during the period of this suit.

"3. That regular shipments of dry ice from Liquid Carbonic in Houston, Texas to the Borden Sales Co. in Lake Charles, La. averaged three (3) or four (4) times per week and about one hundred (100) pounds per shipment during the period of this suit."

(e) Defendant's principal office and place of business was in Chicago, Illinois, and its principal Texas office and place of business was in Dallas, Texas, where the officer of the Company who directed and had charge of Defendant's Texas business had his office. Defendant's business and work at Houston was divided into three Departments, i. e., an Engineering Department, in charge of an Engineer who reported direct to and worked under the direction of the Chicago office of Defendant, a Sales Department, in charge of a Manager thereof who reported direct to and worked under the direction of the Dallas office, and an Office and Bookkeeping Department, which reported direct to and worked under the direction of the Dallas office. Neither of these Departments in Houston had any control or supervision over the other, except that Stallings, the head of the Sales Department, seems to have been more closely in touch with Defendant's Officers outside of Houston than anyone else in Houston, and they seem to have depended upon him for suggestions,...