S.H. Robinson & Co., Inc. v. Larue

• Decision Date: 29 November 1941
• Parties: S. H. ROBINSON & CO., Inc., v. LARUE.
• Court: Tennessee Supreme Court

156 S.W.2d 432

178 Tenn. 197

S. H. ROBINSON & CO., Inc., v. LARUE.

Supreme Court of Tennessee.

November 29, 1941

Error to Circuit Court, Knox County; Hamilton S. Burnett, Judge.

Suit by Joe Larue against S. H. Robinson & Company, Incorporated, to recover back wages, penalties, and attorney's fees under the Fair Labor Standards Act of 1938. To review a judgment of the Court of Appeals, 156 S.W.2d 359, which affirmed a judgment for plaintiff, defendant brings error and plaintiff files a petition complaining of the reduction of the amount of judgment entered in the trial court.

Judgment affirmed and plaintiff's petition denied.

Jennings & O'Neil, of Knoxville, for plaintiff in error.

W. O Lowe, of Knoxville, for defendant in error.

McKINNEY Justice.

Joe Larue instituted this suit to recover back wages, penalties and attorney's fees under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.

The plant of plaintiff in error, located in Knoxville, covers a city block. It is engaged in purchasing, storing, and selling scrap iron, metal, copper, and aluminum. The trial court and the Court of Appeals, 156 S.W.2d 359, have concurred in finding that it is engaged in shipping these materials in interstate commerce, and we find evidence in the record to support that finding.

Defendant in error was employed by plaintiff in error from January 1 1940, to September 14, 1940, his duty being to watch these materials during the night hours as they were unloaded from trucks, while stored on the yard, and when loaded in freight cars for shipment before the cars were moved.

The primary question for consideration is whether a night watchman, with no other duties to perform, comes within the provisions of the Act. Subsection (j) of section 3 reads as follows: "For the purposes of this Act [chapter] an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State."

While in a technical sense a watchman does not produce goods, the trend of judicial decisions seems to be that such an employee comes within the spirit of the Act and renders a service so closely connected with interstate transportation as practically to be a part of it, particularly since the Act is remedial in character and must be given a liberal construction. Wood v. Central Sand & Gravel Co., D. C., 33 F.Supp. 40; Reeves v. Howard County Refining Co., D.C., 33 F.Supp. 90; Lefevers v. General Export Iron & Metal Co., D.C., 36 F.Supp. 838; and Hargrave v. Mid-Continent Petroleum Corp., D. C. E. D. Okl., ^[1] decided June 19, 1941.

The Supreme Court of North Carolina, Justice Seawell dissenting, in Hart v. Gregory, 220 N.C. 180, 16 S.E.2d 837, held that a watchman is not employed in an occupation necessary to the production of goods within the Fair Labor Standards Act.

In Rogers v. Glazer, D.C., 32 F.Supp. 990, Judge Otis was inclined to the view that a watchman was not included in the Act, but rested his decision primarily upon an exemption in the Act, section 13(a) (2), which provides that "any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce" is not entitled to the privileges of the Act.

We conclude, therefore, that the other courts were correct in awarding defendant in error a recovery herein, the result being that the petition of plaintiff in error will be dismissed.

The defendant in error has also filed a...