Skidmore v. John J. Casale, Inc.

• Decision Date: 28 April 1947
• Docket Number: Docket 20465.,No. 167,167
• Citation: 160 F.2d 527
• Parties: SKIDMORE et al. v. JOHN J. CASALE, Inc. MOONEY et al. v. JOHN J. CASALE, Inc.
• Court: U.S. Court of Appeals — Second Circuit

160 F.2d 527 (1947)

SKIDMORE et al. v. JOHN J. CASALE, Inc. MOONEY et al. v. JOHN J. CASALE, Inc.

No. 167, Docket 20465.

Circuit Court of Appeals, Second Circuit.

March 6, 1947.

Writ of Certiorari Denied April 28, 1947.

Before LEARNED HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.

Writ of Certiorari Denied April 28, 1947. See 67 S.Ct. 1205.

The defendant, John J. Casale, Inc., is engaged in the business of leasing motor-trucks for haulage to business concerns in and about New York City. Rentals for the trucks include the cost of maintaining and repairing them, and storing them, when not in use, in garages owned and operated by the defendant. Plaintiffs, with the exception of Olton, who worked as a porter in one of the garages (and Johnson, who was non-suited below and who has not appealed), performed various duties requisite to the maintaining and repairing of the trucks at the seven garages owned by the defendant. They may be categorized as maintenance men, mechanics and mechanics' helpers. Customarily, the trucks were driven by the employees of the lessees. It was assumed for the purpose of this case that defendant is not a carrier of any kind.

The district court found that defendant's trucks were used by a number of its customers in haulage of commodities in interstate or foreign commerce, to a substantial extent both in terms of mileage and dollar amount and quantity of such goods. It found that this use was regular and recurrent and not sporadic. A pretrial stipulation covering two (subsequently extended to include three) of defendant's garages stated that 15 to 25% of the use of trucks serviced and kept at these garages was use in interstate commerce; evidence was produced at the trial in support of that stipulation. As to three of the garages not covered by the stipulation, the trial judge was satisfied that the evidence presented warranted a finding that the overall interstate use of defendant's trucks proceeding from those garages was substantial. He made no specific finding as to the percentage of use in interstate commerce, but pointed out that a 1941 investigation by defendant's officers had indicated that the amount of interstate use of its trucks was approximately 23%. The evidence as to the trucks housed in the seventh garage, located at 107th Street was extremely meagre. However, there was testimony concerning at least one of the trucks kept there, that leased by the Dannemiller Coffee Company; it appears that it was used at fairly regular intervals to make pickups of coffee at piers, and at times to deliver shipments to railway and steamship terminals for shipment in interstate commerce. This amounted to 10% more or less of its overall use by the Dannemiller Company. Despite this testimony, the trial judge found that no evidence had been offered concerning the trucks housed in the 107th Street garage, and dismissed the complaint as to plaintiff, Dodson, who worked there.

No evidence was introduced to show any division of labor as between trucks used in interstate commerce and those not so used. Nor was there any analysis made of the amount of time that each man spent on trucks used in interstate shipments. The trial judge found that each of the trucks was returned regularly to its garage and was serviced daily by defendant's employees at that garage. Some of the work necessary to keep the trucks in condition was done each night, the rest regularly and recurrently. "The work on the trucks used in interstate commerce was not sporadic. It was constant and steady."

The trial judge concluded that all the plaintiffs, with the exception of Olton, Johnson and Dodson, were engaged in interstate commerce within the meaning of the Fair Labor Standards Act, and entered judgment accordingly for unpaid overtime compensation and liquidated damages in the amount of $18,630.40. Plaintiff Jordan's recovery was limited to exclude the period during which he was employed at the 107th Street garage. Plaintiffs were also awarded an additional sum of $7,000 as a reasonable attorney's fee in the action. In awarding the attorney's fee, the district court did not take into consideration a contract between the plaintiffs and their attorneys, which provided that the attorneys should be paid one-third of any recovery plus any attorney's fee that should be awarded.

The defendant Casale has appealed generally from plaintiffs' recoveries. Cross-appeals have been taken by plaintiffs Olton and Dodson from the non-suit as to each of them, by Jordan in so far as his recovery was limited, and by all plaintiffs from the judgment fixing the attorney's fees at $7,000. The opinion of the district court is reported in 66 F.Supp. 282.

H. R. Korey, of New York City (Emanuel Tacker, of New York City, of counsel), for appellees.

Charles E. Cotterill, of New York City (Irwin D. Davidson, of New York City, of counsel), for appellant.

FRANK, Circuit Judge.

1. The first question is whether the court below was correct in its conclusion that the successful plaintiffs in this action were engaged in interstate commerce within the meaning of the Fair Labor Standards Act. Section 7 of the Act, 29 U.S.C.A. § 207, provides that overtime compensation must be given by an employer to "any of his employees who is engaged in commerce or in the production of goods for commerce." As it is conceded that the plaintiff-employees are not engaged in the production of goods, we limit our inquiry to the scope of the words "engaged in commerce." Defendant argues that its employees could not reasonably be said to be engaged in commerce, since defendant itself is not. To answer this contention we must review the recent Supreme Court cases dealing with the matter. In Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656, the employer, a private corporation, owned and operated a tollbridge, located wholly within the State of Florida, which accommodated a substantial amount of interstate traffic. The employees in question maintained and operated the bridge. The court found that their work on an "instrumentality of interstate commerce" was so closely related to the interstate movement that they were "employed in commerce." It went on to say (318 U.S. p. 132, 63 S.Ct. 494, 499), that it was immaterial whether or not the corporation itself might be said to be engaged in commerce, since the nature of the employees' activities, not that of the employer, is the determinative factor. See also Walling v. Jacksonville Paper Co., 317 U.S. 564, 571, 63 S.Ct. 332, 87 L.Ed. 460; Pedersen v. J. F. Fitzgerald Construction Co., 318 U.S. 740, 742, 63 S.Ct. 558, 87 L.Ed. 1119; McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538. The recent decision in Boutell v. Walling, 327 U.S. 463, 66 S.Ct. 631, is most closely analogous to the instant case. The employees of the Boutell Service Company were employed at a large garage where they were engaged in the servicing of transportation equipment used exclusively in interstate commerce. The only essential distinction between the Boutell case and the instant case is the amount of work done on vehicles travelling in interstate commerce. But in Walling v. Jacksonville Paper Co. it was said (317 U. S. at pages 571, 572, 63 S.Ct. 337), "If a substantial¹ part of an employee's activities related to goods whose movement in the channels of interstate commerce was established by the test we have described, he is covered by the Act." It follows, we think, that the distinction between "all" and a "substantial amount" is of no importance, and that therefore the holding in the Boutell case that the employees were "engaged in commerce," though their employer was not so engaged, is decisive here.

This does not mean that all the employees at the defendant's garages are within the protection of the Act. In the Boutell case there was no question as to the amount of work done on vehicles used in interstate commerce; here it is apparent that not all the work done was work on trucks used interstate. The language quoted above from Walling v. Jacksonville Paper Co. seems to us to require that a substantial amount of the work of each employee must be related to interstate commerce. In Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, it was held that the shipment of one-tenth of 1% of the output of a...