Van Klaveren v. Killian-House Co.

• Citation: 210 F.2d 510
• Decision Date: 23 February 1954
• Docket Number: No. 14533.,14533.
• Parties: VAN KLAVEREN v. KILLIAN-HOUSE CO.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

210 F.2d 510 (1954)

VAN KLAVEREN v. KILLIAN-HOUSE CO.

No. 14533.

United States Court of Appeals Fifth Circuit.

February 23, 1954.

Tom H. King, San Antonio, Tex., Earl Street, Dallas, Tex., Stuart Rothman, Solicitor, Bessie Margolin, Chief of Appellate Litigation, David F. Babson, Jr., Attorney, United States Department of Labor, Washington, D. C., for appellant.

Lionel R. Fuller, San Antonio, Tex., Brewer, Matthews, Nowlin & Macfarlane, San Antonio, Tex., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.

BORAH, Circuit Judge.

This is an appeal from a judgment of the District Court dismissing the appellant's claim under Sections 7 and 16 of the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U.S. C.A. §§ 207, 216, for unpaid minimum and overtime wages, liquidated damages and attorney fees.

Appellant, Dick Van Klaveren, filed this employee's action against appellee Killian-House Company claiming that the total amount due him under the Act was $694.83 for the years 1949 and 1950 plus an equal sum as liquidated damages and the sum of $700.00 as a reasonable attorney's fee. The defendant denied the plaintiff's allegations, claimed among other things that plaintiff in performing his work was not engaged in interstate commerce within the meaning of the Act, and asserted good faith as against the demand for liquidated damages. A trial was had before the judge without a jury on stipulated facts and after the hearing below the court held in pertinent part that Van Klaveren was not engaged "in commerce" at the time of such work. This appeal followed.

The material facts may be briefly summarized as follows. Appellant was employed as a night watchman by appellee, a road construction contractor, for a period of approximately twenty and one-half weeks during 1949 and 1950. During this time appellee was engaged in construction work upon the San Antonio Expressway, a traffic artery, the construction of which has been and now is being prosecuted within the city limits of San Antonio, Texas, under contracts between the Texas State Highway Department and various contractors including appellee. The over-all integrated project involves (1) the construction of an entirely new Expressway over a right of way acquired by the condemnation of land previously occupied by buildings; and (2) the improvement of existing streets and highways to provide feeders into the Expressway. Appellee at various times and pursuant to four separate contracts constructed that part of the Expressway known as jobs or portions Nos. 1 and 2, and also did some work upon two feeder streets which led onto the Expressway, Herff Street and Culebra Avenue.

Appellant commenced working for appellee on December 10, 1949, at which time the Expressway job No. 1 had been completed¹ and appellee was working upon job No. 2 and the two feeder streets. Job No. 2 concerned that portion of the Expressway between the intersection of Marshall Street with the Expressway and the intersection of West Martin Street with the Expressway. Defendant's contract on Culebra Avenue called for the tearing up of the old pavement and the laying of new pavement approximately twice as wide as the old, as well as the installation of a new bridge over Alazan Creek, new drainage, new sidewalks, new gutter bottoms and new curbs, all of which defendant did in the performance of its contract. Defendant's contract on Herff Street called for the same specifications of construction (including a new bridge over Alazan Creek) as on the Culebra Avenue job, with the exception that the eastern half of old Herff Street was abandoned and supplanted by a new section for which a right of way had been obtained and from which buildings had to be removed to allow for the construction of that new section. Appellant worked on all of these jobs and on others, spending the weeks of April 1 and April 15, 1950, on the site of job No. 2; ten days between July 31 and August 16, 1950, on the site of the San Pedro Creek bridge job which was a part of the Herff Street job; and from December 10, 1949, to March 25, 1950, and from April 8 to April 15, 1950, a total of seventeen weeks, on the site of the Alazan Creek Bridge job, a part of the Culebra Avenue job. The Culebra Avenue job was completed on April 11, 1950. Thereafter and following the periods of appellant's employment the Expressway No. 2 job and the Herff Street job were completed on November 29, 1950, and May 23, 1951, respectively. At the time Herff Street was completed it was not and had not been used as a feeder street to the Expressway proper as the portion of the Expressway to which Herff Street is intended to feed traffic had not then been completed.

Throughout the period of appellant's employment it affirmatively appears that no traffic either local or interstate went over that portion of the Expressway covered by job No. 2 and Herff Street and Culebra Avenue were then merely city streets. As to their subsequent use it appears that Herff Street was not a designated numbered part of either the U. S. Highway or State Highway system at any time before or during the time of construction on it, nor is it such a part of either system at the present time. On January 1, 1951, Culebra Avenue was officially designated as a portion of State Highway No. 16 by the Texas State Highway Department and this highway was relocated on that date down certain named streets to Culebra Avenue, and thence down Culebra Avenue and onto the Expressway. The construction of the Expressway as an entirety has not been completed.² Upon its completion at some future date, in accordance with plans of the State Highway Department made prior to commencement of the project, U. S. Highway 81, northbound and southbound, U. S. Highway 87, Northwest, and U. S. Highway 90, East, will be re-routed from existing nearby routes to the Expressway. All of the above-mentioned highways are accessible to, and used regularly by interstate traffic. These facts are in all material respects identical with those which were considered and discussed in Martinez v. Killian-House Co.,...