Petway v. Dobson, 150 Civil.

• Decision Date: 03 August 1942
• Docket Number: No. 150 Civil.,150 Civil.
• Parties: PETWAY v. DOBSON et al.
• Court: U.S. District Court — Middle District of Tennessee

46 F. Supp. 114

PETWAY v. DOBSON et al.

No. 150 Civil.

District Court, M. D. Tennessee, Nashville Division.

August 3, 1942.

Harry Nelson, Jr., Harry G. Nichol, and Lewis C. Payne, all of Nashville, Tenn., for plaintiff.

William P. Cooper, of Nashville, Tenn., for defendants.

DAVIES, District Judge.

This cause was further heard upon application of the defendant for additional and amended findings of fact and conclusions of law, and upon consideration thereof the Court having read the transcript of the evidence introduced at the trial of the cause, is of the opinion that it was in error in making the finding of fact that the plaintiff unloaded freight cars of shipments in interstate commerce, some of which contained basic materials which were made into fertilizer by defendants and shipped in interstate commerce, which fertilizer he helped load in the cars for interstate shipment.

The Court now finds that the true facts as disclosed by the record are that the plaintiff did unload freight cars of shipments in interstate commerce, some of which contained basic materials, or what is known as basic slag, that is used for fertilizer; however, the Court finds that these materials were not manufactured into fertilizer by defendants and afterwards shipped in interstate commerce and that the plaintiff did not help load any such materials or any other materials into cars for interstate shipment. The plaintiff also helped unload cars of wire fence shipped in interstate commerce but those only amounted to about four each year.

The Court further finds that the time spent by plaintiff in unloading freight cars containing basic slag and other interstate shipments required only a small part of his time and did not exceed twenty per cent of the number of hours worked in a work week by the employees of the defendant who were engaged in commerce as defined by the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.

Conclusions.

Upon the findings of fact as amended the Court is still of the opinion that the defendant is not a retail establishment such as to be entitled to the exemption provided for in Section 13(a) (2) of the Act; however, it appearing that the duties performed by the plaintiff in the main consisted of performing work immediately incidental to the making of retail sales, the greater part of which were in intrastate commerce, such as wrapping packages for customers, weighing out seeds in small lots, delivering bundles of retail purchases to...