Texas Co. v. Pitman
| Decision Date | 25 October 1945 |
| Docket Number | 30934. |
| Citation | 35 S.E.2d 671,73 Ga.App. 128 |
| Parties | TEXAS CO. v. PITMAN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. One whose activities are confined to the movement of goods which have already been produced for interstate commerce is not engaged in the production of goods for interstate commerce.
2. An employee engaged in the building or maintaining or repairing of receptacles or the handling of goods to be stored therein which goods have come to rest, are engaged in intrastate commerce and not interstate commerce within the provisions of the Fair Labor Standards Act of 1938, and are not covered by the provisions of the Act.
J. L Pitman, hereinafter called the employee, brought suit against the Texas Company, hereinafter called the employer, to recover wages due under the United States Fair Labor Standards Act of 1938, 29 U.S. C.A. § 201 et seq. The defendant employer filed demurrers. The demurrers were overruled. It is to this judgment that the employer assigns error here.
Pleadings The allegations of the petition setting forth in detail the kind of work performed by the employee are contained in paragraph 3 of the petition, which we here quote:
'Your petitioner shows that in his employment and work for the defendant during the periods of time alleged in this suit, he worked in the states of Georgia, South Carolina, Florida and Alabama, and the nature of the work actually done by him was repairing, rebuilding and installing gasoline storage tanks where gasoline was shipped into said states by railroad cars and tank boats, and repaired, rebuilt and installed pumps, pipe lines and equipment in connection therewith as a part of said storage and distribution stations; that when gasoline was received by railroad shipment or by tank boats at their respective storage tank or distribution station where it was stored, and from said tanks was delivered to the retailer for the purpose of sale and consumption by the consumer.
'3(a). The tanks, pumps and pipes used in said storage tanks and distribution stations were purchased by the defendant and shipped into said respective states and received at said destination by your petitioner for the defendant on the flat cars in which it was transported into said state and by him unloaded from the flat cars and installed, rebuilt where necessary, and repairs made thereon were necessary for the purpose of continuing the transportation of said gasoline to the retailer and by him to the Consumer.
'3(b). That on or about May 10, 1941, your petitioner dismantled a distribution station for the defendant in Wauchula, Florida, consisting of two eighteen thousand gallon gasoline tanks, together with such pumps and pipes and facilities in connection therewith, and loaded said gasoline tanks on freight cars for transportation by rail, one of said tanks going to Augusta, Georgia, and the other to Albany, Georgia, and your petitioner followed said shipments and in Augusta, Georgia, and Albany, Georgia, reinstalled said tanks, including such pumps, pipe lines as were necessary for them to be connected to tank cars containing gasoline which were shipped by railroad cars out of the State of Georgia to Augusta and Albany, Georgia, and when said installations were completed, the gasoline in said railroad tank cars was pumped into said storage tanks where it could be kept until removed from the storage tanks into trucks for the purpose of being delivered to customers and the ultimate consumer; that the receipt and storage of gasoline in these storage tanks was made constantly, and at some of the storage tanks daily, and gasoline was removed from said storage tanks to the retailer and consumer daily.
'3(c). That in repairing storage tanks and distribution centers, your petitioner built and repaired fences which were built around the plant for the protection of said respective storage tanks, and he replaced worn out floors, roofs, made enlargements to said plants, painting the same, and in making these repairs your petitioner would order lumber, gates, paints by requisition directed to the defendant in Atlanta, Georgia, and these supplies would be shipped from one state to the other and delivered to your petitioner in whatever state and at which ever station they were required, and your petitioner would receive the same and use them in building, repairing, replacing and enlarging said respective storage stations for the defendant; that your petitioner traveled from one station to another and from state to the other whenever directed by the defendant to do so, and made such installations and repairs as were desired at each respective station; that iron gates were shipped from purchasers in Georgia to the defendant's stations in South Carolina, and your petitioner received the same in South Carolina for the defendant and installed said gates as a part of the defendant's bulk receiving stations in South Carolina.
'3(d). That your petitioner was required by the defendant to travel from one state to the other and to carry his tools with him so that when he arrived at a plant owned by the defendant in another state that he would be ready to go to work.
'3(e). That the tanks, pumps and pipes installed in building a bulk station and in repairing the same would be purchased by the defendant in one state and shipped to the various states and stations where needed, and your petitioner would install the same at their destination; that your petitioner does not have an itemized list of each of said items used by him during the time that he was employed by the defendant as alleged herein, but said defendant does have a list thereof and personal knowledge of each and every item purchased as used by this defendant in the various states in which your petitioner worked for the defendant.
'3(f). That each of the bulk stations were used for the purpose of reception, storage and distribution of gasoline which had been produced, refined and transported by the defendant in interstate commerce from the several states into the states in which your petitioner worked.
The essential grounds of the demurrers are:
'1. Defendant demurs generally to plaintiff's petition as amended on the ground that it sets forth no cause of action.
'2. Defendant demurs to each and every paragraph of said amendment of January 6th, 1945, except paragraphs 1 and 2, on the ground that said amendment constitutes a conglomerate mass, and is vague and indefinite, and the petition as amended is vague and indefinite in the plaintiff fails to allege the places at which he worked during each and every week, for which he makes claim; the various kinds of work performed by plaintiff at each place during each week; and the amount of time spent by plaintiff at each kind of work at each place during each week; and said allegations are necessary in order that it may appear what part of the work done by plaintiff was interstate and what part intrastate commerce; and in order that the court may determine as to each and every week involved whether plaintiff was as to that week engaged in interstate commerce to the extent that he may be entitled to recover under the Fair Labor Standards Act.
Provisions of the Act:
29 U.S. C.A. § 202 deals with the subject matter. This concerns the employer and the employee 'engaged in commerce or in the production of goods for commerce'--interstate commerce.
29 U.S C.A. § 203(b, d, e, g, i, j, k) reads: ...
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