Rachal v. Allen

• Decision Date: 08 August 1963
• Docket Number: No. 20171.,20171.
• Citation: 321 F.2d 449
• Parties: Hal F. RACHAL and Norman F. Hoffman, Individually and as Co-Partners, d/b/a West Texas Flying Service, and West Texas Flying Service, Inc., Appellants, v. Billy Joe ALLEN et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

321 F.2d 449 (1963)

Hal F. RACHAL and Norman F. Hoffman, Individually and as Co-Partners, d/b/a West Texas Flying Service, and West Texas Flying Service, Inc., Appellants, v. Billy Joe ALLEN et al., Appellees.

No. 20171.

United States Court of Appeals Fifth Circuit.

August 8, 1963.

Hal Rachal, Midland, Tex., pro se.

W. Edward Lee, Longview, Tex., for appellees.

Beate Bloch, Deputy Counsel, Dept. of Labor, Charles Donahue, Sol. of Labor, Bessie Margolin, Assoc. Sol., Earl Street, Regional Atty., Dept. of Labor, Washington, D. C., for W. Willard Wirtz, Secretary of Labor, U. S. Dept. of Labor, as amicus curiae.

Before HUTCHESON, BROWN and GEWIN, Circuit Judges.

HUTCHESON, Circuit Judge.

Plaintiffs' suit, brought to recover overtime wages, liquidated damages, and other relief under the Fair Labor Standards Act of 1938, was determined on a motion for summary judgment against the defendants, and they are here insisting that this is another of those all too numerous instances of the misuse of summary judgment procedure to cut a trial short; that here, as so often before, it has served only to prove that short-cutting of trials is not an end in itself but a means to an end, and that in the conduct of trials, as in other endeavors, it is quite often true that the longest way round is the shortest way through. Gray Tool Co. v. Humble Oil & Refining Co., 5 Cir., 186 F.2d 365.¹

This is the record. The City of Midland, Texas, leased to defendants, Hal F. Rachal and Norman F. Hoffman, dba West Texas Flying Service, certain gasoline storage equipment and other facilities at Midland Air Park (on the northern edge of the City of Midland) "for any purposes incident to the sales, service, storage of aircraft and aircraft parts; the licensing, inspection, leasing and renting of same, and the transportation of persons and cargo by air by charter party or otherwise; and any other activity or business involving or incident to aircraft and use thereof".

Another concurrent lease from the City of Midland to the defendants grants the non-exclusive right to sell aviation gasoline and oil at Midland Air Terminal Airport (west of the City of Midland).

Another lease from the City of Midland to defendants-appellants covered certain facilities at Midland Air Terminal Airport with the non-exclusive right in and on the demised premises to locate, maintain, and operate full aircraft servicing facilities, to sell aircraft, engines, accessories and parts, and to provide storage space for aircraft, a repair shop for the repairing and servicing of aircraft engines, instruments, propellers and accessories in connection with said business; the right to conduct such activities to apply to aircraft of other persons as well as aircraft belonging to lessee; the right to give flying instructions, to provide pilots for operating planes for others and to carry passengers and freight for hire.

Defendants-appellants were engaged in the business known as base aeronautics operators, gasoline and oils were sold and delivered into airplanes of all comers, regardless of point of origin or destination of the airplanes; they maintained shops in which repair work was done on customers' aircraft; they maintained hangars in which airplanes were stored for all comers on a daily or monthly basis; they made repairs to aircrafts and engines; sold and rented aircraft; sold airplane engine parts and accessories; furnished instructors who gave flight instructions; and conducted airplane charter trips of goods and passengers, both in local and interstate flight.

The business was highly competitive and appellants welcomed all incoming planes regardless of origin or destination; serviced aircraft carrying freight, whether on schedules or unscheduled trips; and did repair work on anybody's airplane that would come in and let them do it for him. Appellants also repaired aircraft communication equipment in their shops.

Appellants were also engaged in the business of selling airplanes for Mooney Aircraft and Mooney Sales Company. The planes they bought by contract with the manufacturer were normally brought to Midland and, in turn, delivered to the customer at Midland. Appellants furnished pilots for other airplane owners and made a charge for the pilot's services so furnished. Appellants shipped airplane parts to any other state they had orders from and purchased airplane parts from other states, and they did not turn down sales because the parts were to be sent to other states.

Among appellants' customers were numerous oil companies operating airplanes in interstate commerce. Appellants' customers included, among others, oil well drilling contractors, construction companies, other aviation companies, engineering companies, ranchers and farmers, crop dusters, radio companies, and trucking companies.

The period involved is from March 31, 1958, through March 30, 1960.

Appellees were in the employ of appellants during such period and were paid wages at a regular hourly rate for all time worked but were not paid the additional fifty percent rate for any hours in excess of forty hours worked in any week during the period involved.

It was stipulated that Edna Nicholson, who was bookkeeper for West Texas Flying Service and bookkeeper and treasurer for West Texas Flying Service, Inc., is qualified as an expert for the purpose of having an opinion of the aircraft industry and its conduct and operation, and that she would testify, if called upon to do so, that the type of operation, which is and has been conducted by all of the appellants in this case, is, and at all times has been, recognized as a retail or service establishment in the particular industry and that the sales of goods or services or of both during the period of time in question in this case were recognized as retail sales or services in the particular industry.

It was further stipulated that if additional witnesses were called upon by the appellants to testify as experts in the industry each and all of them would testify in like manner as the witness, Edna Nicholson, and would express the same conclusions with respect to the appellants' businesses being considered retail, or service establishments in the industry, and that would be true even though all of these additional witnesses were disinterested witnesses.

It was further stipulated that all of the establishments operated by each and all of the appellants will, for the purpose of this lawsuit, be considered as one establishment.

Based on this record and with appellants being given no opportunity whatsoever to introduce any evidence in their defense, appellees' motion for summary judgment was granted on the grounds that there is no issue of fact as to any material or controlling issue of law and that appellees are entitled to a judgment for full recovery in the amounts as alleged and prayed in their complaint against appellants as a matter of law.

Appellants, here on one specification of error:

"The trial court erred in granting appellees\' motion for summary judgment and in holding that there is no issue of fact as to any material or controlling issue of law."

urge upon us that appellants qualify for the exemption provided for in Sec. 13(a) (2) of the Fair Labor Standards Act of 1938, as amended on October 26, 1949, to read as follows:

"Any employee employed by any retail or service establishment, more than 50 percentum of which establishment\'s annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A `retail or service establishment\' shall mean an establishment 75 percentum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry."

Appellees and the Secretary of Labor, as amicus curiae, opposed the contention and argument of appellants with the claim that the business of "base aeronautics operators" is outside the scope of the Section 13(a) (2) exemption.

Pressing this contention upon us they argue that the business of base aeronautics operators does not fall within the concept of retail contemplated by Sec. 13(a) (2) and that the judgment was therefore correct.

In support of their respective contentions, both appellants and appellees rely upon Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815,² and each argues its contention with vigor and conviction.

We think it clear that the appellants have the right of it, especially in view of the provision in the amendment making it a question of fact as to whether an establishment is or is not "recognized as retail sales or services in the particular industry". The judgment was, therefore, wrong, and it must be reversed with directions to afford defendants a trial on the facts.

JOHN R. BROWN, Circuit Judge (dissenting).

I respectfully dissent.

The opinion implies that the Employer never got a trial. The record shows that he was fortunate to get what he got, he got what he asked for, and now he gets more than he is entitled to. Under no circumstance is this the situation of the Judge running summary judgment into the ground to avoid the travail of adjudicating facts. The Appellants, one of whom serves in the triple role of litigant, chief swearer, trial and appellate advocate, create an incorrect impression of what went on.

In the first place, the Employer-witness-lawyer paid no heed to the District Court at all. Judge Thomason's order of March 14, 1961, covering the pretrial hearing he thought he would like to try to hold on February 13, 1961, records the difficulty. After reciting that notice had been sent out a month earlier "directing that attorneys on both sides be present when the case is called for pretrial conference * * *," the order went on to describe the Court's helplessness. "Although this case is now on the call docket for the third consecutive session, the attorney for defendants has...