Spaeth v. Washington University

• Decision Date: 02 July 1948
• Citation: 213 S.W.2d 276,240 Mo.App. 79
• Parties: Henry Spaeth, Respondent, v. The Washington University, a Corporation, Appellant
• Court: Missouri Court of Appeals

213 S.W.2d 276

240 Mo.App. 79

Henry Spaeth, Respondent, v. The Washington University, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis District

July 2, 1948

Appellant's Motion for Rehearing or Modification of Opinion, or for Transfer to Supreme Court of Missouri Overruled September 3, 1948. Opinion of Court Filed July 2 1948, Modified by the Court of its own Initiative September 3, 1948.

Appeal from the Circuit Court of the City of St. Louis, Hon. Charles B. Williams, Judge.

Reversed and remanded with directions.

Richard S. Bull for appellant.

(1) An outside watchman employed by the owner of premises leased to various tenants whose businesses involve interstate commerce transactions, but who do not manufacture, produce or process goods on the premises except to an insubstantial extent (less than two per cent of the rented areas being used for that purpose), is not covered by the provisions of the Fair Labor Standards Act. He is neither "engaged in commerce," in "the production of goods" for commerce, nor in an "occupation necessary to the production thereof." The trial court, therefore, erred in granting respondent's motion for new trial. Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C. A., Secs. 201-219; Kirschbaum v. Walling, Admr., 316 U.S. 517, 86 L.Ed 1638; 10 East 40th Street Building v. Callus, 325 U.S. 578, 89 L.Ed. 1806; Addison v. Commercial National Bank in Shreveport, 7 WH Cases 644; Johnson v. Dallas Downtown Development Co., 132 F.2d 287, cert. denied 318 U.S. 790, 87 L.Ed. 1156; Noonan v. Fruco Construction Co., 140 F.2d 633; Fountain v. St. Joseph Water Co. Mo., 180 S.W. 2d 28; Johnson v. Masonic Bldg. Co., 138 F.2d 817, cert. denied 321 U.S. 780, 88 L.Ed. 1072; Baldwin v. Emigrant Industrial Sav. Bank, 150 F.2d 524; Smith v. Linden Station, 191 S.W. 2d 833; Vryones v. Certosa Corp., 6 WH Cases 837. (2) The status of such a watchman, with respect to coverage by the Fair Labor Standards Act, is to be distinguished from that of custodial and maintenance employees of either (a) employers engaged directly in manufacturing or other interstate commerce activities, or (b) employers who own and rent to others premises used to a substantial degree for the manufacture of goods for commerce. Borden Company v. Borello, 325 U.S. 679, 89 L.Ed. 1865; Roland Electrical Co. v. Walling, 326 U.S. 657, 90 L.Ed. 383; Overstreet v. North Shore Corp., 318 U.S. 126, 87 L.Ed. 656; Walton v. Southern Package Corp., 320 U.S. 540, 88 L.Ed. 298; Walling v. Jacksonville Paper Co., 317 U.S. 564, 87 L.Ed. 460; Niehaus v. Joseph Greenspon's Sons Pipe Corp., 164 S.W. 2d 180; Ashenford v. L. Yukon & Sons Produce Co. Mo. App., 172 S.W. 2d 881; Scorfna v. International Tailoring Co., 5 WH Cases 785.

Thomas F. Manion and Irvin H. Gamble for respondent.

A night watchman, employed by an owner of a group of buildings whose tenants are engaged in interstate commerce or in the production of goods for commerce and are operating under the Fair Labor Standards Act of 1938, whose duties are in patrolling the properties of the owner, to punch clocks as he progressed through and around the buildings, warehouses and railroad tracks, protecting the buildings, warehouses and cars of merchandise from fire and theft is engaged "in commerce" and "in the production of goods for commerce," and was engaged in an occupation necessary in the production of goods for commerce. Kirchbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116. Niehaus v. Joseph Greenspon's Sons Pipe Corp., 164 S.W.2d 180. Ashenford v. L. Yukon & Sons Produce Company, 172 S.W.2d 881. Walton v. Southern Package Corp., 320 U.S. 540, 64 S.Ct. 320. Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C. A., Secs. 201-219. Walling v. Jacksonville Paper Co., 317 U.S. 332. Roland Electrical Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413. Borden Company v. Borella, 325 U.S. 679, 65 S.Ct. 1223. Mabee v. White Plains Pub. Co., 327 U.S. 178. Clyde v. Broderick, 144 Fed. (2d), l. c. 351. Slover v. Wathen, 140 F.2d 258. Walling v. Sonback et al., 132 F.2d 77. Martin v. Graham, 176 S.W.2d 842. Edwards v. Southside Auto Parts Co., 180 S.W.2d 1015.

OPINION

Wolfe, C.

This is an action brought under the Fair Labor Standards Act of 1938 for overtime wages alleged to be due the plaintiff by reason of his hours of employment as a watchman in and about the buildings and premises known as Cupples Station Property owned by the defendant. A jury having been waived the trial court, after hearing the cause, found in favor of the defendant and thereafter granted plaintiff a new trial. It is from the order granting a new trial that the defendant prosecutes this appeal.

There are no issues of fact presented since the parties filed an agreed statement at the trial as to most of the factual matters and the evidence that was presented appears without contradiction.

Defendant owned and maintained the property known as Cupples Station Property in the downtown area of the City of St. Louis, Missouri. This property consisted of several large buildings and railroad trackage facilities with loading platforms. The buildings were leased to various business concerns that were engaged respectively in jobbing and warehousing of paper and wooden products, wholesaling and warehousing of hardware, wholesaling and warehousing of groceries, and processing and sale of furs and general warehousing. Some of the tenants engaged in the processing or production of goods and these activities will be more fully detailed in consideration of the question raised by this appeal. The plaintiff was a watchman employed by the defendant and his duties were to patrol the property and watch over the buildings and the railroad cars, used in interstate commerce, and over trackage facilities. He guarded and protected the area against fire and theft. At times, in case of rain, he was obliged to move trucks loaded with freight into a sheltered area. It is admitted that if the Fair Labor Standards Act is applicable to the work that plaintiff was doing there is due him as wages $ 878.30.

The Fair Labor Standards Act of 1938, 52 U.S. Statutes 1060, 29 U.S.C. A., Secs. 201-219, states as its Finding and Declaration of Policy in Section 2(a):

"The Congress hereby finds that the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers (1) causes commerce and the channels and instrumentalities of commerce to be used to spread and perpetuate such labor conditions among the workers of the several States; (2) burdens commerce and the free flow of goods in commerce; (3) constitutes an unfair method of competition in commerce; (4) leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce; and (5) interferes with the orderly and fair marketing of goods in commerce."

It is provided in Section 3(j) that for the purpose of the Act an employee shall be deemed to have been engaged in the production of goods if engaged in "any process or occupation necessary to the production thereof,". The Act proceeds to set out a minimum wage scale and in Section 7(a) provides the maximum hours of work, with a further provision for the payment of one and one-half times the hourly scale for time worked in excess of the hours specified.

The only question raised here is whether the plaintiff comes under the benefits of this Act or is not covered by it. The first case reaching the United States Supreme Court which required a consideration of the scope of the Act was the case of Kirschbaum Co. v. Walling, 316 U.S. 517. In that case the workmen affected were maintenance employees, elevator operators and watchmen employed by the owner of a loft building in Philadelphia and a twenty-two story building located in a New York City manufacturing district. Practically all of the tenants in the building were engaged in the production of goods for interstate commerce. The court stated:

"The petitioners assert, however, that the building industry of which they are part is purely local in nature and that the Act does not apply where the employer is not himself engaged in an industry partaking of interstate commerce. But the provisions of the Act expressly make its application dependent upon the character of the employees' activities. And, in any event, to the extent that his employees are 'engaged in commerce or in the production of goods for commerce,' the employer is himself so engaged. Nor can we find in the Act, as do the petitioners, any requirement that employees must themselves participate in the physical process of the making of the goods before they can be regarded as engaged in their production. Such a construction erases the final clause of Section 3(j) which includes employees engaged 'in any process or occupation necessary to the production' and thereby does not limit the scope of the statute to the preceding clause which deals with employees 'in any other manner working on such goods.'"

About three years after this decision was handed down the court decided the case of Borden Co. v. Borella et al., 325 U.S. 679, which had to do with the same class of employees in a twenty-four story office building in New York City. The Borden Company, which owned the building, used seventeen of the floors for its own offices and rented the balance to tenants who were not engaged in the production of goods for commerce. The court held that while no goods were actually processed in the building the Act should be given effect as production was directed from the building.

These two cases were followed by a third United States Supreme Court case, 10 East...