Walling v. Armbruster, Civ. No. 345.

CourtUnited States District Courts. 8th Circuit. Western District of Arkansas
Writing for the CourtMILLER
Citation51 F. Supp. 166
PartiesWALLING v. ARMBRUSTER et al.
Decision Date10 August 1943
Docket NumberCiv. No. 345.

51 F. Supp. 166

WALLING
v.
ARMBRUSTER et al.

Civ. No. 345.

District Court, W. D. Arkansas, Fort Smith Division.

August 10, 1943.


51 F. Supp. 167

Douglas B. Maggs, Solicitor, Department of Labor, Irving J. Levy, Associate Solicitor, Department of Labor, of New York City, and Llewellyn B. Duke, Regional Atty., Department of Labor, and Harry Campbell, Jr., Associate Atty., Department of Labor, both of Dallas, Tex., for plaintiff.

Hugh M. Bland, of Fort Smith, Ark., for defendants.

MILLER, District Judge.

Able counsel for the parties have filed most excellent briefs in support of their contentions. Counsel for plaintiff state the issues as follows:

(1) Whether the defendants are engaged in the production of goods for interstate commerce within the meaning of the Act.

(2) Whether the defendants are operating a service establishment within the exemption granted by Section 13(a) (2) of the Act.

These questions will be discussed in the order stated.

(1) In Kirschbaum Co. v. Walling, Administrator of the Wage and Hour Division, United States Department of Labor, 316 U.S. 517, 524, 62 S.Ct. 1116, 1120, 86 L.Ed. 1638, the court said: "But the provisions of the Act expressly make its application dependent upon the character of the employees' activities. And, in any event, to the extent that his employees are `engaged in commerce or in the production of goods for commerce', the employer is himself so engaged."

In Fleming, Administrator of the Wage and Hour Division, United States Department of Labor, v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567, 570, the court said: "We conclude that it was the intention

51 F. Supp. 168
of Congress to make the act applicable to all those who are employed in commerce or in the production of goods in commerce without regard to the nature of their employer's business and that this intention was given apt expression in Sections 6 and 7 of the act."

The term "goods" is defined in Section 3(i) of the Act, U.S.C.A. Title 29, Section 203(i) and the term "produced" is defined in Section 3(j) of the Act, U.S.C.A. Title 29, Section 203(j).

The statutory definition of these terms are sufficiently broad to include the converted automobiles and there is no doubt that the finished buses were goods produced for commerce.

In the case of United States v. Darby, 312 U.S. 100, 118, 657, 61 S.Ct. 451, 459, 85 L.Ed. 609, 132 A.L.R. 1430, in which the constitutionality of the Act was sustained, it is said: "The recognized need of drafting a workable statute and the well known circumstances in which it was to be applied are persuasive of the conclusion, which the legislative history supports, S. Rept. No. 884, 75th Cong. 1st Sess., pp. 7 and 8; H. Rept. No. 2738; 75th Cong. 3rd Sess., p. 17, that the `production for commerce' intended includes at least production of goods, which, at the time of production, the employer, according to the normal course of his business, intends or expects to move in interstate commerce although, through the exigencies of the business, all of the goods may not thereafter actually enter interstate commerce."

The facts disclose that the employees of defendants were engaged in work necessary to the production of goods (buses) in Arkansas. At the time such work was being done the defendants knew that the goods (buses) were destined to move in interstate commerce to the state where they were to be used. In such operations the defendants were and are subject to the provisions of the Act, unless exempted therefrom by Section 13(a) (2), U.S.C.A. Title 29, Section 213 (a) (2). See Enterprise Box Co. v. Fleming, 5 Cir., 125 F.2d 897; Warren-Bradshaw Drilling Co. v. Hall, Agent, et al., 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. ___.

(2) Were and are the defendants operating a service establishment within the exemption granted by Section 13(a) (2) of the Act?

The section reads: "The provisions of sections 206 and 207 of this title shall not apply with respect to * * * any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce." U.S.C.A. Title 29, Section 213(a) (2).

The Circuit Court of Appeals for the Eighth Circuit in its opinion in the case of Musteen et al. v. Johnson et al., 8 Cir., 133 F.2d 106, 108, after referring to the cases of A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Overnight Motor Transp. Co., Inc., v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682; Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. ___; and Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. ___, said: "These decisions indicate that the Fair Labor Standards Act must be liberally construed to include all employees (not expressly excepted from the Act) who reasonably may be deemed to be within its purview."

The plaintiff contends that the conversion of automobiles into buses is manufacturing and that the business as operated by defendants is not a service establishment.

The defendants on their brief state: "If the defendants were manufacturing buses from the ground up and selling them to customers at their place of business, knowing that they were to take them into other states, then the defendants would be covered by the Act, but, in the case at bar, we have a pure service establishment rendering a service to owners of automobiles desiring that they be converted into buses."

Learned counsel for defendants has displayed great industry in the preparation of the brief for defendants, but most of the cases cited and relied upon arose under the various tariff and taxing statutes. The same is true of most of the cases cited by able counsel for the plaintiff. None of the cited cases seem to be decisive of the question and the court in its investigation of the precedents has not found any case that fully determines the question. The Supreme Court of the United States, speaking through Mr....

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3 practice notes
  • Lenroot v. Hazlehurst Mercantile Co., No. 620.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • January 6, 1945
    ...171 U.S. 210, 18 S.Ct. 837, 43 L.Ed. 139; Cochrane v. Deener, 94 U.S. 780, 24 L.Ed. 139; Walling v. Armbruster, D.C., W.D.Ark., 1943, 51 F.Supp. 166. VII. The employment of children under 14 years of age in defendants' packing shed during each of the 1942 and 1943 seasons constituted oppres......
  • Phillips v. Star Overall Dry Cleaning Laundry Co., No. 78.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 7, 1945
    ...v. Roland Electrical Co., 4 Cir., 146 F.2d 745; Slover v. Wathen, 4 Cir., 140 F.2d 258, 259; Walling v. Armbruster, D.C.W.D. Ark., 51 F.Supp. 166; cf. Enterprise Box Co. v. Fleming, 5 Cir., 125 F.2d 897); and it accords further with the views of cases such as Lonas v. National Linen Service......
  • Lenroot v. Kemp, No. 630.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • January 6, 1945
    ...171 U.S. 210, 18 S.Ct. 837, 43 L.Ed. 139; Cochrane v. Deener, 94 U. S. 780, 24 L.Ed. 139; Walling v. Armbruster, D.C.W.D.Ark., 1943, 51 F.Supp. 166. VI. The employment of children under 14 years of age in defendants' packing shed during each of the 1941 and 1943 seasons constituted oppressi......
3 cases
  • Lenroot v. Hazlehurst Mercantile Co., No. 620.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • January 6, 1945
    ...171 U.S. 210, 18 S.Ct. 837, 43 L.Ed. 139; Cochrane v. Deener, 94 U.S. 780, 24 L.Ed. 139; Walling v. Armbruster, D.C., W.D.Ark., 1943, 51 F.Supp. 166. VII. The employment of children under 14 years of age in defendants' packing shed during each of the 1942 and 1943 seasons constituted oppres......
  • Phillips v. Star Overall Dry Cleaning Laundry Co., No. 78.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 7, 1945
    ...v. Roland Electrical Co., 4 Cir., 146 F.2d 745; Slover v. Wathen, 4 Cir., 140 F.2d 258, 259; Walling v. Armbruster, D.C.W.D. Ark., 51 F.Supp. 166; cf. Enterprise Box Co. v. Fleming, 5 Cir., 125 F.2d 897); and it accords further with the views of cases such as Lonas v. National Linen Service......
  • Lenroot v. Kemp, No. 630.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • January 6, 1945
    ...171 U.S. 210, 18 S.Ct. 837, 43 L.Ed. 139; Cochrane v. Deener, 94 U. S. 780, 24 L.Ed. 139; Walling v. Armbruster, D.C.W.D.Ark., 1943, 51 F.Supp. 166. VI. The employment of children under 14 years of age in defendants' packing shed during each of the 1941 and 1943 seasons constituted oppressi......

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