Walker Oil Company v. Hudson Oil Company of Missouri

• Decision Date: 06 August 1969
• Docket Number: No. 27264.,27264.
• Citation: 414 F.2d 588
• Parties: WALKER OIL COMPANY, Inc., and Big S Oil Company, Appellants, v. HUDSON OIL COMPANY OF MISSOURI, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 588 (1969)

WALKER OIL COMPANY, Inc., and Big S Oil Company, Appellants, v. HUDSON OIL COMPANY OF MISSOURI, Inc., Appellee.

No. 27264.

United States Court of Appeals Fifth Circuit.

July 9, 1969.

Petition for Rehearing Denied and Rehearing Denied August 6, 1969.

Joe J. Harrell, Harrell, Caro, Middlebrooks & Wiltshire, Pensacola, Fla., for appellants.

Harry Kemker, Edward M. Waller, Jr., Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, Fla., for appellee.

Before JOHN R. BROWN, Chief Judge, DYER, Circuit Judge, and HUNTER, District Judge.

Petition for Rehearing Denied and Rehearing En Banc Denied August 6, 1969.

DYER, Circuit Judge:

The issue presented in this appeal by Walker Oil Company, Inc., and Big S Oil Company from a final summary judgment in favor of Hudson Oil Company of Missouri, Inc., is whether retail gasoline sales by two Hudson gasoline stations sixty miles apart and in different states are sales "in commerce" within the meaning of section 2(a) of the Robinson-Patman Act, 15 U.S.C.A. § 13(a), where the retail sales are to random members of the general public rather than to known, particular customers and are consummated entirely upon the premises of the respective stations. They are not, and consequently price differentials between the two stations do not constitute discrimination violative of the Robinson-Patman Act. We affirm.

Hudson operates forty-eight retail gasoline stations located in twenty different states, including a station on the Mobile Causeway east of Mobile, Alabama, and one in Pensacola, Florida, approximately sixty miles away. Hudson purchases the gasoline sold by the two stations from Murphy Oil Company, which operates a terminal facility in Mobile. The gasoline which Murphy sells to Hudson comes from outside the State of Alabama to Murphy's Mobile terminal where it is purchased by Hudson at wholesale prices and then transported to Hudson's Mobile Causeway and Pensacola stations by an independent motor carrier. The gasoline purchased by Hudson from Murphy is placed in storage tanks located on the premises of the Mobile Causeway and Pensacola stations upon its delivery by the independent carrier. The storage tanks are connected to the dispensing pumps of the two stations, and from the dispensing pumps the gasoline is sold to various customers.

Hudson pays the shipping costs from Mobile to its Mobile Causeway and Pensacola stations. The invoices of Murphy are forwarded to Hudson in Kansas City, Kansas, and are paid by Hudson's office in Kansas City directly to Murphy at an office of Murphy outside the State of Kansas. Hudson also pays the salaries of the Mobile Causeway and Pensacola stations' personnel by checks forwarded from Kansas City. The retail prices to be charged by the Mobile Causeway and Pensacola stations are determined, in part, by personnel of the Hudson home office in Kansas City, and the specific changes in price are directed to the two retail stations through interstate commerce facilities.

Hudson does not purchase the gasoline from Murphy to fulfill or meet contract requirements, special orders or anticipated needs of any particular customers of either Hudson or Murphy. The gasoline is held for resale at retail prices to whatever random customers may seek to purchase the gasoline at retail from Hudson's Mobile Causeway and Pensacola stations. The retail sales are always completed on the premises of the respective stations, although at frequently different prices by comparison between the two stations. The discrimination charged to be violative of the Robinson-Patman Act is discrimination between the retail prices charged at Hudson's Mobile Causeway and Pensacola stations.

Section 2(a) of the Robinson-Patman Act states in pertinent part:

It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce * * *.

We note initially that the jurisdictional commerce coverage of this section falls short of the coverage possible under Congress's Commerce Clause power or that of the broader Sherman Anti-Trust Act. Willard Dairy Corp. v. National Dairy Prods. Corp., 6 Cir. 1962, 309 F.2d 943. Under section 2(a) at least one or both of the sales alleged to be discriminatory must be "in commerce". As this Court pointed out in Hiram Walker, Inc. v. A & S Tropical, Inc., 5 Cir. 1969, 407 F.2d 4 Jan. 31, 1969, "the Robinson-Patman Act is applicable only where the allegedly discriminatory transactions took place in interstate commerce. That is, `* * * at least one of the two transactions which, when compared, generate a discrimination must cross a state line.'" Id. at 8, 9, quoting Rowe, Price Discrimination Under the Robinson-Patman Act 79 (1962).

In the instant case the sales by the two retail gasoline stations are local, intrastate retail sales. They are made not to known or specific customers but rather to whatever random purchasers may wander in desiring to purchase gasoline at the set price. The sales are completed entirely upon the premises of the respective stations. The sales themselves do not cross a state line and hence are not "in commerce" within the meaning of the Robinson-Patman Act.

We disagree with appellants' argument that the local sales in the instant case can be considered a part of the "flow of commerce" such as to be within the "in commerce" requirement of the Robinson-Patman Act. In making the determination whether a particular sale is within the "flow of commerce", cases arising under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. are helpful. Cf. Standard Oil Co. v....