Tagler v. FD Carpenter Coal Co., Civ. A. No. 3700.

• Decision Date: 10 March 1943
• Docket Number: Civ. A. No. 3700.
• Citation: 57 F. Supp. 314
• Parties: TAGLER et al. v. F. D. CARPENTER COAL CO.
• Court: U.S. District Court — Northern District of Illinois

57 F. Supp. 314

TAGLER et al. v. F. D. CARPENTER COAL CO.

Civ. A. No. 3700.

District Court, N. D. Illinois, E. D.

March 10, 1943.

Frank S. Righeimer, of Chicago, Ill., for plaintiffs.

Kirkland, Fleming, Green, Martin & Ellis, of Chicago, Ill., for defendants.

BARNES, District Judge.

The court has further considered this case in the light of the supplemental briefs of the parties and of the brief of the administrator as amicus curiæ, and is of the opinion: That the plaintiff, Ernest Montore, is engaged in interstate commerce within the meaning of the Fair Labor Standards Act; and that the plaintiffs, Charles Tagler and Lucille Crespegne, are not engaged in interstate commerce but, on the contrary, are engaged in intrastate commerce.

The court is further of the opinion that the defendant, F. D. Carpenter Coal Company, is a "retail establishment" within the meaning of Section 13(a) (2) of the Act, 29 U.S.C.A. § 213(a) (2), and that, accordingly, all of its employees are exempt from the provisions of the Act.

The complaint may be dismissed at plaintiffs' costs.

Counsel for defendant may, within a short day and on notice, present drafts of findings of fact, conclusions of law, and a judgment order giving effect to the views hereinabove expressed.

Findings of Fact, Conclusions of Law and Judgment.

This action having come on for trial before the court without a jury, and having been submitted for decision and judgment on the pleadings, an agreed statement of facts, and testimony of witnesses taken in open court, and the court, after hearing all the evidence adduced and the arguments of counsel and being fully advised in the premises, finds:

Findings of Fact.

1. That the plaintiffs herein are residents of the city of Chicago, State of Illinois, are employees of the defendant and have been employees of the defendant continuously since October 24, 1938;

2. That defendant is a corporation organized and existing under the laws of the State of Illinois and its place of business is and has been since October 24, 1938 located in the city of Chicago, State of Illinois;

3. That defendant is engaged in the purchase, handling and distribution of coal which it buys from mining companies located in the states of Virginia, West Virginia, Kentucky, Indiana and Illinois; that the defendant buys coal in large quantities from the mining companies located in the said states; that such coal is shipped by railroad to defendant's place of business in Chicago, Illinois; that 88 per cent of such coal thus shipped to defendant's said place of business is shipped from states other than the State of Illinois;

4. That the coal thus shipped into the yards of the defendant is unloaded at the yards of the defendant in Chicago, Illinois, in the following manner: (a) some of the coal is conveyed from the cars which transported it to the yards of the defendant, into hoppers from which the coal is loaded into trucks, and delivered to the customers of the defendant in Chicago; (b) some of the coal is taken off the cars which transported it to the yards of the defendant, by conveyors, and piled about the said yards and later loaded from said piles into trucks by which it is delivered to the said customers of the defendant; (c) some of the coal is unloaded from the railroad cars which transported it into the yards of the defendant onto conveyors which carry the coal directly to the defendant's trucks which deliver it to the customers of the defendant in Illinois; 13.72% of the coal shipped to defendant's yards from states other than Illinois is unloaded from the railroad cars that transported it into the yards of the defendant onto conveyors, which carry the coal directly to the defendant's trucks which deliver it to the customers of the defendant in Illinois;

5. That the unloading of said coal is handled in all instances by the employees of the defendant and by machinery owned by defendant;

6. That the coal which has been purchased out of state and delivered by railroad cars into the yards of the defendant in Illinois is thereafter delivered to customers of the defendant in Illinois; that these customers have in some instances placed their orders with the defendant before the defendant has purchased the coal which it will use to fill such orders from the mines of states outside of Illinois; that other purchases are made by the defendant from mines outside the state of Illinois in anticipation of the orders of customers in Illinois who purchase coal from defendant, and in substantially the same quantities each year, and the shipment of coal from mines outside the state of Illinois into the yards of the defendant in Illinois is made with the intent on the part of the defendant that part of the coal thus shipped into its yards will be delivered by the defendant to such customers;

7. That all coal purchased by the defendant from the mines is purchased in carload lots and no specific carload is ever purchased for any specific customer; that none of the coal is ever sent from the mine whether within or without the State of Illinois directly to customers of the defendant, and that none of the coal is ever marked or identified as being merchandise purchased by or for any particular customer but all of the coal handled or sold by the defendant is unloaded in its yards from the railroad cars before it is delivered to defendant's customers;

8. That all sales of coal made by defendant are made within the territorial limits of the city of Chicago and State of Illinois and no coal whatever is sold by the defendant outside of the said city of Chicago;

9. That during the period beginning October 24, 1938, and continuously up to the present time the defendant employed the plaintiff Charles Tagler to drive one of the trucks owned by the defendant and used by the defendant for the delivery from its yards to the premises of the defendant's customers in Chicago, Illinois, of coal which had been shipped as aforesaid into defendant's yards; during said period of employment the said Charles Tagler did deliver by truck to defendant's customers in Chicago, Illinois, coal shipped from out of the State into defendant's yards and loaded onto the said truck in the several manners heretofore set forth; among the deliveries of coal made by the said Charles Tagler during the said period of employment were deliveries of coal which had been shipped into defendant's yards by railroad from out-of-state and...