Skinner v. United States Steel Corporation

• Citation: 233 F.2d 762
• Decision Date: 15 May 1956
• Docket Number: No. 15761.,15761.
• Parties: I. M. SKINNER, an individual, d/b/a Skinner Electrical and Home Supply Company, Appellant, v. UNITED STATES STEEL CORPORATION, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

233 F.2d 762 (1956)

I. M. SKINNER, an individual, d/b/a Skinner Electrical and Home Supply Company, Appellant, v. UNITED STATES STEEL CORPORATION, Appellee.

No. 15761.

United States Court of Appeals Fifth Circuit.

May 15, 1956.

Grover S. McLeod, George E. Trawick, Birmingham, Ala., for appellant.

D. K. McKamy, Birmingham, Ala., C. V. Stelzenmuller, Birmingham, Ala., Burr, McKamy, Moore & Thomas, Birmingham, Ala., of counsel, for appellee.

Before BORAH, TUTTLE, and JONES, Circuit Judges.

JONES, Circuit Judge.

The appellant, I. M. Skinner, who was the plaintiff in the District Court, operates a retail hardware and appliance store in Fairfield, Alabama, in the Birmingham urban area. The appellee, United States Steel Corporation, which was the sole defendant below, is a large enterprise engaged primarily in the manufacture, sale and distribution of iron and steel and the products and byproducts of these metals. Its business is conducted through divisions, one of which is its Tennessee Coal & Iron Division, and through this division the defendant operates mines, steel mills and other works in the Birmingham area, having a large number of employees on its payroll. The defendant owns all of the stock of Union Supply Company, a corporation, which operates a retail store in the trade area served by and in competition with the plaintiff. The defendant, upon written requests of employees, made payroll deductions from wages and paid the sums so deducted to Union Supply Company in payment for employee purchases.

The plaintiff, after some repleading, had before the court a complaint in six counts. In his complaint the plaintiff asserted that the defendant had discriminated against the plaintiff and in favor of his competitor, Union Supply Company, by furnishing the competitor the service of withholding from the wages of defendant's employees the price of goods purchased from the competitor, Union Supply Company, and refusing such service to the plaintiff, which, alleged the plaintiff, violated Section 2(e) of the Robinson-Patman Act, 15 U.S. C.A. § 13(e). The complaint, as amended, also charged a conspiracy between the defendant and Union Supply Company to discriminate in favor of Union Supply Company and against the plaintiff in violation of Sections 2(a) and 2 (e) of the Robinson-Patman Act.

The appellee made direct sales to Union Supply Company. It made no sales to appellant. The appellant had purchased from wholesalers some merchandise manufactured by appellee of which only a very small portion had ever moved in interstate commerce. The appellee contends, perhaps correctly, that the only item produced by it and acquired by appellant during the applicable period, which ever moved in interstate commerce, was 1 Dozen Mrs. McGregor's Nails, billed by a wholesaler to appellant at an invoice price of .85¢ The appellee filed a motion for summary judgment, affidavits and counter-affidavits were filed, and the appellant's deposition was taken. The court entered a summary judgment for the appellee. From the judgment this appeal is taken. Section 2(a) of the Act is confined to discriminations in price, and no facts are here shown that could be made the basis of invoking its provisions. Section 2(e) of the Act provides:

"It shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms." 15 U.S.C.A. § 13(e).

It will be noted that the quoted subsection of the statute omits the words, "engaged in commerce," which follow the word "person" in subsections (a), (c), (d) and (f) of this section of the Act. But, as was said by the Court of Appeals of the Eighth Circuit:

"Reading the subsections of section 2 as a whole and also with the criminal provisions of section 3, and viewing the Robinson-Patman Act in its unity and in its interrelation to the Clayton Act, we do not see how any possible doubt can exist that Congress intended that subsection (e), equally with the other subsections of section 2, should apply only to those engaged in interstate commerce, and that the omission of the limitative expression `engaged in commerce\' from the language of subsection (e) was patently inadvertent, but that the words by sound implication are inherent in its general and sectional context." Elizabeth Arden Sales Corporation v. Gus Blass Co., 1945, 150 F.2d 988, 992.

The commodities involved which were or might have been in interstate commerce were slight in volume, approaching perhaps the de minimis level. In determining whether transactions are in interstate commerce under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., it has been said that the de minimis rule applies. Hunter v. Madison Avenue Corporation, 6 Cir., 1949, 174 F.2d 164. It is likewise applicable where the Robinson-Patman Act is invoked. We think it needless here to sift the facts shown by the record to ascertain whether there was substantial quantity of goods sold in interstate commerce in the sale of which there was or might have been competition between Union Supply Company and the plaintiff. Nor do we find it necessary to make any holding as to whether there need be any substantial lessening of competition or any tendency toward a monopoly as an element of a violation of Section 2(e) of the Act as is required under Section 2(a).

The Federal Trade Commission has held that a buyer of a manufacturer's goods from a wholesaler qualifies the buyer as a "purchaser" from the manufacturer within...