Wiley v. Stewart Sand & Material Co.

• Decision Date: 10 November 1947
• Parties: Richard Wiley, Keithel H. Harris, George McGehee, and Robert Bradley, Respondent v. Stewart Sand & Material Company, a Corporation, Appellant
• Court: Kansas Court of Appeals

206 S.W.2d 362

240 Mo.App. 392

Richard Wiley, Keithel H. Harris, George McGehee, and Robert Bradley, Respondent v. Stewart Sand & Material Company, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

November 10, 1947

Delivered

Appeal from Circuit Court of Jackson County; Hon. Paul A. Buzard Judge.

Reversed.

Warrick Brewer and Lamkin, and Oscar S. Brewer Charles F. Lamkin, Jr., for appellant.

(1) The court erred in overruling the appellant's motion for a directed verdict, made at the close of respondents' case and at the close of all the evidence, and in rendering judgment for the respondents. 29 U.S.C.A., § 203(b); c. 676 § 3, 52 Stat. 1060. 29 U.S.C.A., § 207(a); c. 676 § 7, 52 Stat. 1063, as amended, c. 461, 55 Stat. 756. 29 U.S.C.A., § 216(b); c. 676 § 16, 52 Stat. 1069. Kirschbaum v. Walling; Arsenal Building Corporation v. the same, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638 (1942). (2) Respondents were not engaged in commerce, or in the production of goods for commerce, with respect to appellant's sales within the State of Missouri. E. C. Schroeder Co., Inc. v. Clifton, et al., 153 F.2d 385 (C. C. A. 10, 1946), cert. den. 90 L.Ed. 1072, 326 U.S. , 66 S.Ct. 1351. Fountain v. St. Joseph Water Co., 352 Mo. 817, 180 S.W.2d 28. Walling v. J. W. Craig, et al., 53 F.Supp. 479 (D. C. Minn. 1943). Ramos v. Cement Corporation (D. C. Puerto Rico, 1946, 10 C. C. H. Labor Cases, Para. 63,000, not officially reported). Crabb v. Welden Bros., 65 F.Supp. 369 (D. C. Iowa, 1946). (3) Respondents were not engaged in commerce, or in the production of goods for commerce with respect to the minute shipments of appellant into Kansas because the maxim de minimis non curat lex is applicable, because respondent's connection with such shipments is too speculative to support a judgment based thereon, and because no such shipments were intended by appellant. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014. Anderson v. Mt. Clemens Pottery Company, 326 U.S. , 66 S.Ct. 1187, 90 L.Ed. 1114. Franz v. Delico Meat Products Co. (Mo. App., No. 20756, January 13, 1947, not yet reported). Agnew v. Johnson, 352 Mo. 222, 176 S.W. 2d 489 (1943). Schwarz v. Witwer Grocery Co., 141 F.2d 341 (C. C. A. 8th, 1944), cert. den. 322 U.S. 753, 64 S.Ct. 1265, 88 L.Ed. 1583. Walling v. Jacksonville Paper Co., 317 U.S. 564, 572, 63 S.Ct. 332, 87 L.Ed. 460. Walling v. Mutual Wholesale Food and Supply Co., 141 F.2d 331 (C. C. A. 8th, 1944). Walling v. Crown Overall Mfg. Co., 149 F.2d (C. C. A. 6th, 1945). James Reuter, Inc. v. Walling, 137 F.2d 315 (C. C. A. 5, 1943). Damutz v. Pinchbeck (not yet reported). 11 CCH Labor Cases, Para. 63,498 (C. C. A.2d December 23, 1946). Hill v. Jones, 59 F.Supp. 569 (D. C. W. D. Ky., 1945). Cody v. Dossins' Food Products, Inc. (not officially reported), 10 CCH Labor Cases, Para. 62,785 (D. C. E. D. Mich., 1945). Sapp v. Horton's Laundry, 56 F.Supp. 901 (D. C. N. D. Ga., 1944). Spier v. Gulf Coast Beverages, 50 F.Supp. 653 (D. C. S.D. Fla., 1943). Brown v. Tracy Bottling Co. (not officially reported), 6 CCH Labor Cases, Para. 61.109 (D. C. Minn., 1942). Rauhoff v. Henry Gramling Co., 42 F.Supp. 754 (D. C. E. D. Ark., 1941). Goldberg v. Worman, 37 F.Supp. 778 (D. C. Fla., 1938). Mabee v. White Plains Publishing Company, Inc., 90 L.Ed. 455, 326 U.S. , 66 S.Ct. 511. Interpretative Bulletin No. 5, United States Department of Labor, Wage and Hour Division, Office of the General Counsel. (4) Appellant was not producing "goods for commerce" within the meaning of the Fair Labor Standards Act of 1938, but was engaged in operating a retail establishment, the greater part of the sales of which were intrastate, and therefore its business was exempt from the provisions of the Act. 29 U.S.C.A., § 203(i); c. 676 § 3, 53 Stat. 1060. Fountain v. St. Joseph Water Company, 352 Mo. 817, 180 S.W. 2d 28. Zehring v. Brown Materials, Ltd., 48 F.Supp. 740 (D. C. S.D. Cal., 1943).

Mason A. Ramsey and Claude L. Schenck for respondents.

(1) The Court ruled for the right party in rendering judgment for the respondents. Walling v. C. E. Amidon, 153 F.2d 159. Shepler v. Crucible Steel Company, 60 F.Supp. 260. 10 E. 40th Street Building, Incorporated, v. Callus, 65 S.Ct. 1227. (2) Under all the evidence the appellants were engaged in commerce and in the production of goods for commerce within the meaning of the Fair Labor Standards Act and the maxim de minimus non curat lex does not apply. Walling v. People's Packing Co., 132 F.2d 236. Wagoner v. American Serv. Co., 58 F.Supp. 32.

OPINION

Cave, P. J.

Plaintiffs recovered a judgment below for overtime compensation, liquidated damages and attorneys' fees in a total amount of $ 1,307.72, in an action brought under the Act of Congress, commonly known as the Fair Labor Standards Act of 1938. (29 U.S.C.A. Secs. 201-219, 52 Stat. 1060, et seq.) We shall refer to the parties as they were in the trial court. At the close of the case the court overruled defendant's motion for a directed verdict against each respondent (plaintiff), and then held there were no issues of fact to be decided and discharged the jury, and in due time rendered the judgment appealed from.

We are immediately confronted with a motion to dismiss the appeal because: (1) Plaintiffs' brief fails to state all the evidence, and contains argument and conclusions; (2) the appeal is not taken from an appealable judgment or order; (3) that defendant's statement of facts is so incomplete that the plaintiffs are required to make an additional statement of facts to present a complete picture; (4) defendant has failed and neglected to stipulate as to defendant's exhibits "C" and "D" being filed separately or incorporating same in transcript as provided by rule 1.05.

We have examined the statement of facts in defendant's brief and find that it covers 10 pages, and are of the opinion that the statement is "fair and concise" as required by rule 1.08. In their motion plaintiffs do not point out any omitted material fact and we find none. The statement is sufficient to give this court a clear understanding of the issues to be decided. There is no merit in this contention.

The notice of appeal recites that the defendant is appealing "from the judgment entered in this action on the 12th day of June, 1946." The record discloses that the judgment was entered March 4, 1946, and on March 14 defendant filed its motion for judgment in accordance with its motion for a directed verdict, or, in the alternative, for a new trial. The court overruled the foregoing motion on June 12, 1946, and the notice of appeal was filed on June 18. The notice of appeal is sufficient under the new Civil Code. Park v. Park, et al., 190 S.W.2d 285; Weller v. Hayes Truck Lines, 197 S.W.2d 657. In the Weller case the Supreme Court en banc held a notice of appeal sufficient which recited that the appeal was taken "from the order and judgment overruling defendant's motion for new trial * * *; while in the instant case the notice recited that the appeal is taken "from the judgment." There is no merit in this contention.

The third ground for dismissal is disposed of by our holding that defendant's statement of facts is sufficient. With reference to the fourth ground for dismissal, we find that exhibits "C" and "D" have been filed with the clerk of this court and are now available for use and inspection; and the failure of the defendant to stipulate with the plaintiffs concerning the same would not justify a dismissal of the appeal. Plaintiffs' motion is overruled.

Defendant concedes there are no issues of fact in dispute. It makes the one contention that under the undisputed facts and the law the court should have sustained its motion for a directed verdict. Plaintiffs contend the judgment is correct because it is conceded: (1) That the crushed rock which they assisted in producing was sold to contractors who used it in the construction and repair of highways, and also sold to the Missouri Pacific Railroad Company, which used it for the repair and maintenance of its roadbed, all done in the State of Missouri; (2) that some of the crushed stone produced by them was sold and delivered by defendant to customers in the State of Kansas.

The record discloses that the defendant operated a rock mine or quarry at Pixley, Missouri. The plaintiffs were employed there, for all periods for which they claimed compensation, as powderman's helpers, or as drillers, with the exception of two months in the case of Bradley, when he worked as a mine foreman. They worked on the night shift and assisted in blasting out rock, which was carried out by others the next morning to the two rock crushers maintained at the plant, where the rock was crushed to various sizes and then sold as above indicated. Neither defendant nor any of its employees had any part in the placing of the rock in or upon the highways or railroad bed.

We shall first consider the question whether the fact that defendant produced crushed stone at its quarry and sold the same to independent contractors who used it for the construction, repair and maintenance of highways at various points within the State of Missouri, and was sold to the Missouri Pacific Railroad Company f. o. b. at plaintiffs' plant, which company used the stone to repair and maintain its roadbed within the State, brings the defendant and these employees within the provisions of the Fair Labor Standards Act.

Plaintiffs contend they are employees "engaged in the production of goods for commerce within the meaning of Sec. 3 (j) of the Act. because the services of respondents are indispensable to the production of said rock which flow into the arteries and highways of this State and are not in any sense 'very remote' but bear...