Rauhoff v. Henry Gramling & Co.
| Citation | 42 F. Supp. 754 |
| Decision Date | 22 August 1941 |
| Docket Number | No. 402.,402. |
| Parties | RAUHOFF et al. v. HENRY GRAMLING & CO. |
| Court | U.S. District Court — Eastern District of Arkansas |
Fred A. Isgrig and Carl E. Langston, both of Little Rock, Ark., for plaintiff.
Jack Smallwood, of Russellville, Ark., for defendant.
For the purposes of jurisdiction the amendment to the complaint filed on June 9, 1941, may well be considered to state the jurisdictional allegations on which plaintiff and interveners reply in this cause, as follows: "The plaintiff, Talmadge Rauhoff, was employed by the defendant corporation on the 24th day of July, 1939; that his duties consisted of unloading flour, feed and other commodities from box cars on the track in Russellville, Arkansas, directly to trucks owned and operated by this defendant, and such goods were delivered without stop to the retailers of Pope County for the purpose of resale; that this plaintiff unloaded goods, wares and merchandise from transfer trucks directly onto trucks owned and operated by this defendant and such goods were transported without stop to the retail merchants in Pope County, for the purpose of resale; that this plaintiff went to the freight depot in the City of Russellville, and received drop shipments, taking them to the warehouse of the defendant, and such goods were then placed upon trucks owned and operated by this defendant and were transported without stop to the original purchaser; that this plaintiff unloaded goods, wares and merchandise from freight cars and freight trucks and placed them upon a platform alongside the defendant's warehouse, and these goods so handled by the plaintiff were later loaded by the plaintiff onto trucks owned and operated by the defendant and were transported without stop to retail merchants in Pope County for the purpose of resale, * * *."
In addition to this plaintiff asserts he took orders for goods from retail merchants who came into the warehouse and loaded the goods forthwith from cars onto trucks either of the retail merchant or for delivery to the retail merchant.
The defendant and its employees, the plaintiff and interveners here, were all engaged in commerce, but this is not sufficient to bring this case within the purview of the Fair Labor Standard Act of 1938, 29 U.S.C.A. § 201 et seq., for they must be engaged in interstate commerce as provided in the act.
Under the pleadings and the evidence in this case it is evident that in spite of plaintiff's allegations "such goods were transported without stop," these shipments came to rest and their interstate movement ceased upon delivery to the defendant at its place of business; with the possible exception of the so-called drop shipments.
Plaintiff's counsel in their able brief have cited a number of cases to support the view that it was a continuous movement from point of origin in the foreign state until delivery was effectuated at the place of business of the retail merchant, but the cases upon examination fail to bear out this contention, and all have distinguishing features from the case at bar.
In the case of Binderup v. Pathé Exchange, Inc., 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308, the manufacturers and producers of moving picture films sent them to an exchange, which they owned and operated in the foreign state, for distribution there by their agent. Certainly the fact that when the films reached the hands of their agent, a vice-principal, and were stored could not be said to come to rest so that interstate commerce had ceased, or the shipment had lost its interstate character. The acts of the agent or vice-principal in distributing the films were merely incidents in the interstate commerce the primary purpose of the principal being to get the films to the exhibitors, and the agent was merely one of the links in the chain carrying out this purpose. Here the purchaser of these goods, wares and merchandise was the defendant, in no wise the agent of the seller in the foreign state, but an independent entity. The defendant did not represent out of state producers in the marketing of their goods, but was the actual purchaser to whom delivery was completed.
In the case of Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229, the cattle, which was the subject of Interstate Commerce, moved into the stock yards consigned to commission men, agents and vice-principals of the shipper, for sale or reshipment. What has been said in the case of Binderup v. Pathé Exchange, Inc., sup...
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Walling v. Mutual Wholesale Food & Supply Co.
...and Fleming v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395. The "stream of commerce" test has been rejected in Rauhoff v. Henry Gramling & Co., D.C.Ark.1941, 42 F.Supp. 754; Moses v. McKesson & Robbins, Inc., D.C.Tex. 1942, 43 F.Supp. 528; Brown v. Bailey, 177 Tenn. 185, 147 S.W.2d 105; Is......
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