Smith v. Linden Station

• Decision Date: 15 November 1945
• Citation: Smith v. Linden Station, 191 S.W.2d 833, 28 Tenn.App. 522 (Tenn. App. 1945)
• Parties: SMITH v. LINDEN STATION et al.
• Court: Tennessee Court of Appeals

191 S.W.2d 833

28 Tenn.App. 522

SMITH v. LINDEN STATION et al.

Court of Appeals of Tennessee, Western Section.

November 15, 1945

Certiorari Denied by Supreme CourtJan. 11, 1946.

Appeal from Chancery Court, Shelby County; L. D. Bejach, Chancellor.

Suit by W. J. Smith against Linden Station and others for overtime pay, liquidated damages, and attorneys' fees under Fair Labor Standards Act of 1938.From a decree dismissing the bill, complainant appeals.

Affirmed.

Lindsey B. Phillips and W. H. Fisher, both of Memphis, for appellant.

W. Stuart McCloy and Lewis R. Donelson, III both of Memphis, for appellees.

KETCHUM Judge.

The complainant sues for overtime pay, liquidated damages and attorneys' fees alleged to be due him under the provisions of the Fair Labor Standards Act of 1938,29 U.S.C.A. § 201 et seq.The chancellor held that he did not come within the coverage of the Act and dismissed his bill and he has appealed.

The complainant was employed by the defendant Linden Station as a night watchman from October 15, 1940, to September 1, 1943 for twelve hours a day, seven days a week, at a salary of $100 per month, which was less than the minimum wage fixed for employees engaged in interstate commerce or in the production of goods for commerce within the meaning of said Act.The only question we have to determine on this appeal is whether the complainant was engaged in the production of goods within the meaning of the Act during the time of his employment by the defendant.

The Linden Station was the owner of eight stores fronting on the west side of Front Street in Memphis and running back west to a track of the Illinois Central Railroad.Two of these stores are north of Linden Avenue and six are south of Linden.It rented these stores to tenants who used them for warehouse or storage purposes.Some of these tenants were engaged to some extent in interstate commerce or the production of goods for interstate commerce as well as intrastate commerce, but there is no proof from which it can be determined what percentage of their business was in interstate commerce and what percentage was in intrastate commerce.

The only business of Linden Station was that of renting out its stores and collecting its rents.This is not engaging in commerce or in the production of goods for commerce.Robinson v. Mass. Mut. Life Ins. Co Tenn.Sup.,158 S.W.2d 441, 444.In that case it is said:

'Where the sole business of building owner was limited to the leasing of space in its building to tenants, the maintenance of its building in good order and condition and rendering to its tenants, many of whom were engaged in manufacture of goods for interstate commerce, the ordinary type of service customary in the operation of office building, the owner was not a 'manufacturing establishment' engaged in the 'production of goods for commerce', and therefore its employees were not entitled to protection of the Fair Labor Standards Act'.

The complainant's duties were to patrol the outside of the buildings, protect them from fire and theft, and 'pull' the ADT boxes once every hour during the night.He did not have access to the inside of the buildings and was not employed to render any service to the tenants of the defendant who occupied the buildings.He occasionaly attended to the loading out of night shipments on trucks for some of the tenants, but this was by way of accommodation to the tenants and was not at all within the scope of his employment by the defendant.

Appellant urges the controlling effect of the cases of Kirschbaum and Arsenal Building Corporation v. Walling,316 U.S. 517, 62 S.Ct. 1116, 1118, 86 L.Ed. 1638.These suits were brought by electricians, elevator operators, watchmen and porters in loft buildings, in one of which buildings the tenants manufactured and sold in commerce large quantities of men's clothing, and in the other large quantities of ladies' garments.The tenants were engaged in the production of goods to be transported in interstate commerce.In holding that the complainants were entitled to the benefits of the Act, the court speaking through Mr. Justice Frankfurter said:

'These employees perform the customary duties of persons charged with the effective maintenance of a loft building.The engineer and the fireman produce heat, hot water, and steam necessary...