Super-Cold Southwest Co. v. McBride, 9944.

• Decision Date: 15 January 1942
• Docket Number: No. 9944.,9944.
• Citation: 124 F.2d 90
• Parties: SUPER-COLD SOUTHWEST CO. v. McBRIDE.
• Court: U.S. Court of Appeals — Fifth Circuit

124 F.2d 90 (1941)

SUPER-COLD SOUTHWEST CO. v. McBRIDE.

No. 9944.

Circuit Court of Appeals, Fifth Circuit.

December 1, 1941.

Rehearing Denied January 15, 1942.

William Lipscomb and George E. Seay, both of Dallas, Tex., for appellant.

Curtis E. Hill and Robert W. Hancock, both of Dallas, Tex., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was under Section 16 of the Fair Labor Standards Act of 1938,¹ to recover time and a half for overtime. The claim was that from October 24, 1938, to March 1, 1940, plaintiff's regular hourly rate of pay was forty-one and two-thirds cents per hour, and that in that period he worked a total of approximately 1,136 overtime hours, for which he was due sixty-two and one-half cents per hour. The defenses were: (1) a general denial; (2) that plaintiff was not engaged in commerce or in the production of goods for commerce; (3) that defendant is a retail and service establishment, the greater part of whose servicing and selling is in intrastate commerce, and therefore it is expressly exempted under Section 213, (a) (2), of 29 U.S.C.A., section 13(a) (2) of the act.

Tried to the court without a jury, the evidence showed that defendant buys mechanical refrigerators from the Super-Cold Corporation of Los Angeles, California, and brings them into Texas for sale, distribution and service, from its place of business in Dallas, to customers located almost entirely in the State of Texas, with a few in Oklahoma and Louisiana, and that it was therefore engaged in part in interstate and in part in intrastate commerce. It showed too: that McBride was employed under an oral contract, to help unload the refrigerators from the cars and place them in plaintiff's place of business, to install such units of mechanical refrigerators as were sold, and to service them after they had been sold and installed; and that while his duties carried him on occasions to the State of Oklahoma, most of his work was done in the State of Texas. In the agreement for paying McBride $25 a week, nothing was said about overtime work and particularly there was no agreement that the $25 a week he was paid should include pay for overtime. Plaintiff showed that he did do overtime work and that some of it was in interstate commerce, but he did not show that all of it was. Indeed he left it very uncertain as to how much was in and how much was not in such commerce. In addition as to most of the Sunday overtime claimed he not only failed to show that it was in interstate commerce but also failed completely to show how much of such work he did, his proof showing not that he worked on that day but merely that he was "on call".

Upon its defense, that it is a retail and service establishment doing the greater part of its servicing or selling in intrastate commerce, defendant showed merely that the greater part of its sales were in individual units and all its servicing was for the units sold and on this fact alone it rested its case for exemption.

The district judge found: that defendant was in commerce; that it was not exempt under the act as a retail or service establishment; that plaintiff's agreed pay was not to cover overtime; and that he was entitled to recover for all the time he claimed, including Sunday time "on call". He gave plaintiff judgment for $1,232.31 as unpaid overtime compensation, an additional amount of $1,232.31 as liquidated damages, and $250 as attorney's fees.

Appellant complaining of the judgment as erroneous and asking its reversal, does not contend here that it was not engaged in interstate...