Samuels v. Houston

• Decision Date: 30 June 1942
• Docket Number: No. 125.,125.
• Parties: SAMUELS v. HOUSTON.
• Court: U.S. District Court — Southern District of Georgia

46 F. Supp. 364

SAMUELS v. HOUSTON.

No. 125.

District Court, S. D. Georgia, Augusta Division.

June 30, 1942.

Roy V. Harris and Henry T. Chance, Jr., both of Augusta, Ga., for plaintiff.

Lee, Congdon & Fulcher and Wm. P. Congdon, all of Augusta, Ga., for defendant.

LOVETT, District Judge.

This is an employee's suit under sections 6 and 7 of the Fair Labor Standards Act of 1938¹ to recover the difference between the amounts paid and required, and for time and a half for overtime, with penalties, as prescribed by the Act. Jury trial is waived by the parties.

There is no issue as to the hours worked.² The defenses are, first, that neither the employee nor the employer for the time in question were engaged in commerce as defined by the Act, and, secondly, that the employer had a retail establishment the greater part of whose selling was in intrastate commerce, exempted by section 13³ from the provisions of sections 6 and 7 of the Act.

The plaintiff offered no evidence on the hearing, contenting himself with the defendant's answer to his allegations and a stipulation that the defendant not only sold but also manufactured ice, and some part of the output was sold to customers outside of the State of Georgia, where it was produced, and some part to trucks possibly moving in interstate commerce.

The uncontradicted evidence discloses, and I find as a fact, the defendant during the time in controversy owned and operated a plant in Augusta, Ga., for the manufacture of ice, having a daily capacity of fifty tons; the total output while plaintiff was employed was slightly more than five thousand tons, of which approximately eighty-five tons were sold and delivered at the ice plant to customers residing in South Carolina and about forty tons delivered at the plant to motor trucks which may have been engaged in interstate commerce, no record being made in that respect. Thus, it appears at the most only about 2½% of the ice produced could have moved beyond the State of production. The plaintiff was employed about one hundred and twenty days. Upon an average something like one ton a day out of a total capacity of fifty tons could have found its way into commerce of the character contemplated by the Act as bringing employer and employee within its terms. The defendant sold the greater part of its output at retail. During the year 1941, and within the period of plaintiff's employment, from time to time the defendant accumulated a reserve stock or supply of ice. From this supply, when there was an excess above the regular demand of the local customers in Augusta, occasionally ice was sold to customers in South Carolina or to trucks passing the plant. This type of business was not solicited by the defendant, and when no reserve stock was on hand it was refused. When the ice was manufactured it was not possible to foretell whether it would be consumed by local customers or would go into the reserve stock, as the local consumption varied with the state of the weather and from other causes.

The plaintiff was what is known as an "ice puller", his work being the pouring of water into the container in which it was frozen and when frozen pulling the ice from the container. He handled about one hundred and forty-five blocks per day, each block weighing three hundred pounds. The plaintiff has made no effort to point out what part of his work was intrastate and what part interstate; indeed, he could not do so as no one knew when the ice was made where it would go; and when made it became a part of a mass that could not later be identified or segregated. For aught that appears in the evidence no part of the ice which plaintiff helped to make during the three months and twenty days he worked for the defendant may have gone elsewhere than to the local customers in Augusta, Ga.

The ice sold by defendant to customers in South Carolina went to ice dealers or distributors there, and was sold at half the price received from the local trade⁴. This probably accounts for the fact that the defendant supplied these customers only when he had an excess of ice on hand which he could not sell at retail at home.

As pointed out by Mr. Justice Frankfurter in the Kirschbaum case⁵, there is no "dependable touchstone" to determine in all cases whether employees are "engaged in commerce or in the production of goods for commerce". The courts have not, and can not, set up a satisfactory formula that will always serve. Lines must be drawn for each case as it arises. Certain considerations, however, that are relevant in this case, and to me are helpful in saying that the line shall go here rather than there, have been stated. One of these considerations is simply this: Is a substantial part of the employee's work for the time in question in commerce or in producing goods for commerce, remembering at the same time the statutory definition of "commerce" contained in the Act? "The percentage of the employer's business intrastate as compared with that interstate proves little. * * * It is the employment of the particular employee and not the business of the employer, which is to be regarded. Yet the two are closely related, because the employee's work cannot be in commerce unless the employer's business is to that extent in commerce. On the other hand, the employer may be largely engaged in commerce, but the particular employee engaged in some other work, may not be. * * * If a substantial part of his work is in commerce or in producing goods for commerce, he must be dealt with according to the Act". Fleming v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395, 397. See, also, Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172; Swift & Co. v. Wilkerson, 5 Cir., 124 F.2d 176. "The provisions of the Act expressly make its application dependent upon the character of the employees' activities". Kirschbaum case, supra.

The plaintiff here admittedly "pulled" ice a little less than four months for the defendant at its ice plant. But what became of the ice? Was it sold locally, within the state, or did some substantial part of it move in commerce beyond the State of Georgia where produced? The record is silent. True, some eighty-five tons certainly, and perhaps forty tons more, of ice were sold by the defendant and moved beyond the state while plaintiff worked for him, but when that ice was produced we do not know. It was shown to have been sold from the accumulated reserve stock, but when that stock accumulated or was manufactured — whether before or during the time the plaintiff worked at the ice plant — we are left to...