Starrett v. Bruce

• Decision Date: 15 March 1968
• Docket Number: No. 9362.,9362.
• Citation: 391 F.2d 320
• Parties: Mose Garlin STARRETT, Appellant, v. Bobby BRUCE, doing business as Bruce Trucking Company, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

391 F.2d 320 (1968)

Mose Garlin STARRETT, Appellant, v. Bobby BRUCE, doing business as Bruce Trucking Company, Appellee.

No. 9362.

United States Court of Appeals Tenth Circuit.

March 15, 1968.

Jeff R. Laird, Sulphur, Okl., for appellant.

Phil S. Hurst, of Reed & Hurst, Sulphur, Okl., for appellee.

Robert E. Nagle, Attorney, United States Department of Labor, Washington, D. C. (Charles Donahue, Solicitor of Labor, Bessie Margolin, Associate Solicitor, Caruthers G. Berger, Attorney, Major J. Parmenter, Regional Attorney, on the brief), for W. Willard Wirtz, Secretary of Labor, amicus curiae.

Before WILBUR K. MILLER, Senior Circuit Judge,^* and BREITENSTEIN and SETH, Circuit Judges.

SETH, Circuit Judge.

The appellant, Mose Garlin Starrett, brought this action under section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. § 216(b)) to recover overtime compensation together with liquidated damages and attorney's fee. The case was submitted to the trial court on stipulated facts, it entered judgment for the defendant, and this appeal was taken.

The trial court held that appellant's hours were subject to regulation by the Interstate Commerce Commission and section 7 of the Fair Labor Standards Act does not apply. The appeal thus presents the question whether the Interstate Commerce Commission has the power, under section 204 of the Motor Carrier Act of 1935 to establish qualifications and maximum hours of service with respect to this appellant, thereby removing him from the coverage of the Fair Labor Standards Act.

During the period concerned in this suit, April 21, 1964, through February 28, 1965, appellee, Bruce Trucking Company, employed appellant Starrett as a truck driver engaged in the transportation and delivery of crushed rock from crusher plants located in Oklahoma to contractors at various points within Oklahoma for use in the building, maintenance, and repair of roadways for the carriage of persons and goods that move in interstate commerce. The parties stipulated that this constituted "production of goods for commerce" within the meaning of the Fair Labor Standards Act.

Appellee employed appellant for workweeks longer than forty hours paying him at a fixed rate per haul regardless of the number of hours worked in each week. Appellant worked less than or more than forty hours per week depending upon the number and length of hauls he made during any given week. The parties also stipulated that appellant was paid more than the minimum hourly rates prescribed by the Fair Labor Standards Act.

Appellee operated his business from June 1962 until the time of this suit as a common and contract motor carrier. He derived approximately two per cent of his revenues from interstate transportation during the total four years that he had operated as a carrier of road materials. During the period of the appellant's employment, however, appellee engaged in no interstate transportation. The facts further show that Bruce had never obtained nor sought a certificate of general exemption from compliance with the Motor Carrier Act of 1935. The parties agree however that appellee during the entire period of his operation held himself out as being available for interstate hauls, solicited interstate business, and would have handled any interstate shipments received. Also had there been any interstate trips, these trips would be shared indiscriminately by all of the drivers, including the appellant.

The Secretary of Labor as amicus curiae argues that during the period of appellant's employment, appellee was not actually a common carrier engaged in transportation in interstate or foreign commerce. He contends that the stipulated facts merely indicate in a generalized way that appellee was available to handle, and solicited, interstate shipments, but provided no indication of an actual public undertaking to furnish interstate service at uniform rates, within any particular interstate area, or under any other terms or conditions to which he might have been held by a shipper seeking his services. The argument of the Secretary is pointed to the fact that appellee had failed to qualify under the Interstate Commerce Commission's regulations, and that during the period of appellant's employment, appellee actually received no orders from interstate customers. Neither point however serves to dispose of the case.

Section 203(a) (14) of the Motor Carrier Act defines the term "common carrier by motor vehicle" as any person who holds himself out to the general public to engage in the transportation by motor vehicle in interstate commerce of property for compensation. The statutory definition of "common carrier by motor vehicle" stresses not what a person does but what he holds himself out to do. Interstate Commerce Commission v. AAA Con Drivers Exchange, Inc., 340 F.2d 820 (2d Cir. 1965). The parties agree that although during the period of appellant's employment, appellee derived...