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

• Decision Date: 09 August 1941
• Citation: 156 S.W.2d 359,25 Tenn.App. 284
• Parties: S. H. ROBINSON & CO., Inc., v. LARUE.
• Court: Tennessee Court of Appeals

156 S.W.2d 359

25 Tenn.App. 284

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

Court of Appeals of Tennessee, Eastern Section.

August 9, 1941

Petition for Certiorari Denied by Supreme Court November 29, 1941.

Appeal in Error from Circuit Court, Knox County; Hamilton Burnett Judge.

Action by Joe Larue against S. H. Robinson & Co., Inc., for a violation of the federal Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., to recover the minimum standard wage provided by the act for the number of hours worked weekly and in addition for overtime as provided in the act, and a penalty of double the amount found due plaintiff after crediting the amount paid. From a decree for the plaintiff the defendant appeals in error.

Decree modified, and, as modified, affirmed.

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

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

PORTRUM Judge.

The plaintiff below, Joe Larue, sues his former employer, S. H Robinson & Company, Incorporated, for a violation of the federal statute known as "Fair Labor Standards Act of 1938," 29 U.S.C.A. § 201 et seq., to recover the minimum standard wage provided by the act for the number of hours worked weekly and in addition for overtime, as provided in the act, and a penalty of double the amount found due him after crediting the amount paid him. The defense is that the employer was not engaged in interstate commerce, and the employee was not employed in interstate business, but he was employed in intrastate state business. That the act did not apply to him, and he had not put in the hours in excess of the minimum required by the act.

For employees engaged in interstate commerce, the act fixes the minimum hours per week at forty-two hours, and the minimum wage per hour at thirty cents; and for overtime work the wage is fixed at one and one-half times the minimum wage, or forty-five cents per hour. And an employer who violates these provisions by failing to conform to the law and pay the wages required for the time worked is penalized by allowing the employee to recover the amount due him under the standard, plus a penalty of 100 per cent. of the amount due, which is designated in the act as liquidated damages, together with attorney's fees and cost.

The plaintiff sought to recover in this action the sum of $1,792.55. He was employed as a night watchman guarding the place of business of the defendant and claims to have put in 13 1/2 hours per day, seven days per week, for a period of 37 weeks. The employer is engaged in the business of collecting, grading, and selling junked metal, consisting of iron scraps, aluminum, brass, and copper scraps, and he or it also maintains under a trade name similar in character a plumbing shop with the necessary supplies, et cetera. This is a local business operated under a separate license, and it is claimed that the employee was employed to guard and protect this plumbing business, and it is further claimed that the junk business was primarily a local and intrastate business and that it was only incidentally engaged in the interstate business.

The case was heard by the trial judge without the intervention of a jury, and the case is here to be heard de novo. The trial court held that the defendant was engaged in interstate commerce and its employees were entitled to the benefits of the act. And that a night watchman guarding its premises, protecting the product being shipped in interstate commerce, was performing an essential duty necessary to the operation of the interstate business, and was protected by the act.

This court concurs in the conclusion that the defendant's business was interstate. Its yards where the junk was deposited and graded in preparation for reshipment covered a city block, and the metal was shipped in carload lots. Some of the shipments were interstate and some were intrastate, but the character of the product collected and sold was such that its use was primarily for munitions of war, and the demand for the scrap was not local or state use, other than its preparation for munition purposes. In war times, as this is, scrap metal or iron, aluminum, brass and copper is a commodity intended to pass interstate and foreign commerce. He who deals extensively in it can neither hope for nor expect a local market, because, first, there is no local use for it and, second, the local market cannot outbid a foreign or national market.

This conclusion is supported by the defendant for it recognized its character of business and complied with the law in reference to its employees engaged in the assembly, grading and shipping of the commodity, and it carried upon its books, along with the other employees, the plaintiff's time as a night watchman, but it arbitrarily designated his time as six hours per day, and his wage at $12 per week, and as reflected by the books the company had complied with the wage and hour law in reference to the plaintiff. It attempts to explain this by stating that the officer representing the insurance company carrying its insurance had required it. If so, it was because the defendant was thought to be engaged in interstate commerce and the employee was entitled to the benefits of the act and his hours and wages should be reflected by the books.

It is next insisted that the plaintiff's duties did not pertain to interstate business but were local in character in that he was employed to and did guard the defendant's plumbing business solely, which is a local business. Prior to the plaintiff's employment the company had installed time or punch boxes over its yards which made it necessary for a watchman to cover a certain route regularly at a specified time and punch the clock which insured the watchman's patrolling the yards regularly. At the time of the employment, the company had abandoned these clocks and had constructed a fence seven to ten feet high and this protected the large quantity of scrap iron which was of small value locally. The purchase price of scrap metal does not reflect a sales value, and scrap metal being a commodity at this time in demand by a certain class of people who gather up abandoned metal here and there and large quantities of it could be thrown over the fence in the nighttime and carried away, and its value was sufficient to justify the company's maintaining a night watchman to guard it. The more valuable metal of the lot, brass and copper, was locked in a building on the premises, but if this building was unguarded it could be broken into and valuable quantities carried away, and this fact justified the company in maintaining a watchman. The defendant thought it necessary to guard...