Atlantic Co. v. Walling

practice procedure dis- them Plaintiff, complaining of the under speedy conducive to missal, his claim sure attain- feebly insists that rather just results, ment of and the are so $200,000 damages personally sustained rules for give drawn that conformity with will by certificate them him on account of his $1000 in- effect puts purpose. main to this to achieve He his order was not colorable. rules, by particular results intended that though ground sistence on the slavish, in- while there not be properly was not should suit understood by compliance should be substantial damages sustained dividual for suit them, brought and a a de- as individual in the suit himself suit nature but a action, any re- enforce and not as a without by member to class rivative a action to, against gard Society attempted compliance a claim favor of in 23, may not, ju- Rule fraudulent order to confer and directors for its officers court, the So- as misappropriation of risdiction on be corrupt construed course, was, for assets, sought a class suit. ciety’s there is dismissal wherein The Society money judg- prejudice right plaintiff without a the benefit of try again inter- $3000, exclusive of in the State Court exceeding ment advised, Court, costs, matter Federal he the real be est and and that proper- again might whether if make the value of he tries controversy was damage done us for Society a case before ty is Rule damage him on decid- judge decision. What done to it that, is and what we decide ed his certificate. $1000 brought, by plaintiff as an individual suit plain in no doubt areWe behalf, on his own the amount contro- $200,000 him damages to tiff’s claim jurisdiction of versy was not within the entirely certificate self on his $1000 is judgment right. the court. It conferring purpose colorable for affirmed. Mercury Indem. Paul jurisdiction. St. Co., 283, 289, 58 S. Co. v. Cab U.S. complaint con 82 L.Ed. 845. The Ct. fact on single allegation of tains a damages claimed judgment a which of his certificate excess of the value legally is possibly It could be awarded. cer holding a person a inconceivable that money tificate a claim representing WALLING, Adm’r CO. v. ATLANTIC him bring which the most could not Wage Division, Dept. of Hour $1000, a could be entitled more than Labor. be judgment damages on account of purchase the certificate induced to Division, Wage WALLING, Hour Adm’r of $1000, representations was worth Labor, pt. v. ATLAN De Appel when worth less. in fact it was TIC CO. point, lant’s other the suit should be No. 10337. amount considered a class suit with the in controversy the value Appeals, Fifth Circuit. Circuit Court of to, juries by the properties owned class, what equally without merit. For Nov. right might plaintiff’s ever said of 23, if he bring a suit under Rule class bring so, he did not had elected to do suit, in view of the definite such rule, court, requirements of that attempt plaintiff absence of not, cannot, it, comply with will indeed effect, rewriting petition his him, brought convert the suit which he be as an individual suit his own suit, into class behalf of half Society. purpose of the The announced Federal Rules of Civil Procedure simple intelligible, pleadings make SIBLEY, dissenting in Judge, Circuit part. Pope Meadow, F. Brock and Wm. K. both Ga., Atlanta, Co. Atlantic Downing, Atty., Regional Geo. A. U. S. Dept. Labor, Atlanta, Ga., and War Gardner, Sol., Labor, Dept. ner W. U. S. Wolf, Sol., Dept. Mortimer B. S. Asst. U. Labor, Irving Levy, Associate J. Sol., Dept. Labor, Washing U. S. all of ton, C.,D. for the Administrator. SIBLEY, HUTCHESON, Before McCORD, Judges. Circuit HUTCHESON, Judge. Circuit Alleging employees, that as to some of its wage was violating defendant the minimum requirement of Sec. the maximum hours provision keeping pro of Sec. record 11(c) provisions visions of Sec. and the appellee suit, 15(a), brought this authority of Sec. 17 of the Fair Labor Act, seq., Standards U.S.C.A. Sec. et to restrain these violations. defend ant, employees as to some of dealt complaint, they denied that engaged Admitting commerce. as to engaged, were so it denied some violation of the act. opinion1 hearing, full There F.Supp. Fleming Go., 40 v. Atlantic part peal, plaintiff whether a for of defendant who decree injunc plaintiff engaged manufacture, defendant, are delivery granting sale railroad, whom of ice to Fruit the and to trucks for tion as to certain Express, had Growers re claimed, defendant plaintiff act, denying frigeration shipments the denied, freight of and interstate the were within employees act, the (2) covered the and on injunction of are certain to appeal, -within cross whether of defend conceded whom defendant had and act, working claimed contracts whom it ant for it on the written but as to a providing pay hour proved paid wages agreed for an of it had 30$ to, for equal forty pay for hours for more than contract 45$ base overtime, being paid in con of, provided for hour for are overtime in excess complaining formity of the the stat Defendant, violation the act. payment brewery requiring and cold for all overtime respect of the ute decree in storage appealed from the at not less than time and one-half employees, has work pay. regular extent, only the ex of the rate of decree t'o the employees en tent, relates to that it manufacture, delivery judge was sale and district gaged in We think the ques interstate refrigeration of to both of the right of ice for the in his answers affirmed, should be shipments by rail truck. that the freight, tions and decree respect cross-appeal. cross-appealed in and on the both on main administrator has carefully out injunction worked denying thoughtful of the order judge examined signed opinion, written the district adversely salaried con disposed of the defendant’s employment, providing for co ntract2 of. defining Congress, using forty and tention that pay first hours base 30$ act, it in in the used twenty “commerce”3 the term one-half than time.and for more full constitutional than its questions then sense narrower Only two hours overtime. goods traded ap scope, restricting short (1) the main on decision are Pay: Pope: 2 Typical with “Rate of is the contract C. E. of these per First 40 hours week at Shelor: per Employment of P. hour .............$12.00 W. Shelor. 30$ of “Terms my agreed per em- the terms of “It 20 hours overtime at 53$ Company ployment effective Atlantic 10.60 hour .................... date, as follows: are this weekly weekly compensation to be worked “Number of hours $22.60” Total hours. 60 Pay: F. L. Stevenson: “Rate pay: “Rate per First 40 hours week at per cents 40 hours week at 30 First per hour .............$12.00 30$ per ....................$12.00 hour per 20 hours overtime at 53$ per overtime at 20 hours 52%$ hour 10.60 .................... 10.50 hour ......................... weekly compensation $22.60” Total weekly compensation $22.50 Total .... Pay: Hamby: contract “I understand that this “Rate S. F. party per 24 hours either terminated at First 40 hours week per hour.............$12.00 notice. 30$ Employee. Shelor, “W. P. at hours overtime 77%$ 20 “Accepted: per 15.50 hour................. Company, “Atlantic Manager. “By Nix, weekly compensation C. A. $27.50” Total 2/16, 1940.“ “Date: Pay: H. Bell: “Rate Paul in form contracts were the same Other per week at 40 hours First pay provided base the same 30$ per .............$12.00 hour 30$ They only in the varied to- for 40 hours. hours overtime at 1.13%$ 20 weekly salary and this the overtime tal per hour.................22.62 rate. Pay: Fred Koon: “Rate weekly compensation $34.62” Total per week First 40 hours act, 3 3(b): “As in this per used hour ............$12.00 30$ trade, per means hours ‘Commerce’ transportation, 20 overtime at 55$ communi- transmission hour 11.00 .................... among several states or cation any place weekly compensation outside thereof.” Total $23.00” including ciple, though precisely point in in interstate facts, Pipe Line such are Mid-Continent except incident transportation 655; Cir., Hargrave, v. 129 F.2d eminent Co. judge, with Said the district trade. Enterprise Fleming, Cir., 125 Box precise de- Co. v. view of correctness 897; Drilling Co. definition, F.2d Warren-Bradshaw “As language of tailed Cir., 42; Hall, the word v. F.2d restatement includes definition decisions to defined, numerous district court (along statement being intercourse), same effect. indices of commercial scope enlarge be intended it can cross-appeal, On the such to include word meaning right view took that judge was transactions, relationships conditions equal pay and for for a contracts base ac- and been heretofore known have as by required that pay in of overtime excess in constituting knowledged commerce as under, and agreements were valid act the in sense. ‘Commerce’ Constitutional the in, provided for payment the salaries only sense, not embraces Constitutional the them, compliance with the act. in was interstate shipment, engaged in but carriers 207; Cir., 121 Corp., 5 F.2d Fleming v. Belo commerce, by instrumentalities the and 624, 62 Corp., 316 Walling Belo U.S. v. In is on.” such commerce carried which The 1223, 86 administra L.Ed. 1716. S.Ct. satisfactory way, equally clear an like, ruled the case is tor’s view that is disposed of judge defendant’s Hall, Drilling by, Co. v. Warren-Bradshaw the that the definition of second contention 42, Cir., Overnight Motor 5 124 F.2d ex- 3(i)4 of act “goods” the word in Missel, 572, Transportation Co. v. U.S. cludes the ice here under consideration S.Ct. 86 L.Ed. will not all Assuming, “goods from for commerce”. cases, agreement no there was do. those deciding, that the “noninclusion” but not pay under, overtime for a and for base exempts provision ultimate con- merely the with, There, in act. the accordance the on (1) penalties 15(a) of Sec. sumer the contrary, employment the was conducted in scope the the has to limit no effect upon complete disregard the view producers goods, of the he to the act as under, only act. that was not It was it the con- makes it clear that the construction compensation under the act was when by produce tended for defendant would put by the was sought that claim forward making op- clause absurd result of the the employer paying was em the that he the destroy retroactively character the erate to ployees under the act and- accordance production goods during their as the had case, Belo with it. We held in the and we language That “goods commerce”. the holding that in the Bradshaw reaffirmed appellant the relies on does have effect opinion in the Missel case case before the for, plac- the effect of it contends but down, employer came that an could not ing on time and circumstance limitation a justify, tried the Bradshaw case penalties application to those the do, by claim since the that total com the produced goods use in deal pensation paid inwas fact more than the act the is made clear in the the use of statutory minimum rate and time and one- delivery”. “after their fact of words The overtime, complied half he had the much, appellant which so that the ice makes cases, made act. We it clear those for, in, transported in- produced being case, Supreme Court did in the Missel has the terstate commerce inherent defect a claim was The that such unfounded. is, perishability its course of case, however, equally it made clear Belo use, consumed, entirely effect, we without where there was definite that a and fixed think, upon proposition goods, that ice is compensation agreement being that the produced under, act, moves in paid and in accordance commerce. apportionment The same contentions made there was an of it be appellant overtime, adversely pay were made and base tween construe, decided in Fleming, write, statute, Hamlet Ice Co. v. and not Cir., (certiorari denied). parties 127 F.2d 165 had not done what hold Courts, Ap- agreed they they doing, Chher decisions of Circuit establish point peal, upon weekly the controlling prin- regular and a rate' a rate for-over- “(i) ingredient 3(i) thereof, does Section reads: means but include ‘Goods delivery goods ships (including equip- goods into and marine after their the actual ment), possession wares, commodities, physical products, mer- ultimate con- subjects producer, a chandise or or thereof other than articles of com- sumer manufacturer, any any processor character, merce or or thereof.” principle consumption by times themselves. The time and one-half of at least one applies interstate everything at issue appellant instructed rate. The pas- uses, carrier departments to ob- rail truck or even a managers or of its various cross- senger automobile, pedestrian new contracts or agreement tain under journey. line, in evidence facilitate and it is go, to let the men Coal, tires, water, are con- frankly oil, gasoline, all advised managers is. work- this ice journey just dismiss sumed on orders to of their fall dining them would threatened The food served in car sign and ers who failed hardly so. category. do in the same There is they refused to if with dismissal agen- any transportation these end to it. These the contracts signing of The commerce hauling understand- cies are in interstate definite created a circumstances consume, they which gasoline the ice or the basis oil agreement as to ing and goods, using to haul other continue and but are them further relations would equip- appellant rails or other just as use their binding on the contracts are pro- spoke goods Congress them. signed ment. When employees who all of the things fact, it meant found, commerce duced for judge as a district transported, commercially find- are to which admit of evidence does not fortuitously used and things signatures and not ings, “The whose actually transporting them. employment cards consumed affixed to the same, result of fraud without the signed the opera- duress, vitiating and without the or misrepresentation on tion of device per- They were employer. lan- and understand sons read able to administrator’s on said cards”. The guage agreements position be not that seems to appellant ought made but that the were not required employees make its not to have SCHILDER, Warden. FISHER v. remaining in its a condition to them as No. 2549. employ. be the correctness Whatever standpoint gen- view from the of this Appeals, Tenth Circuit. Circuit Court of behavior, nothing to do have eral we Oct. say nothing is sufficient to it here. It requires employers to continue law continue to employ, to work, mutually except agree- on terms both, subject to com- able to act, employer and em- pliance with the any terms ployees were free to make n chose right. It judgment to. The throughout. affirmed SIBLEY, Judge (dissenting in Circuit part). disagree only employes mak- I ice, some of which is sold in the state of ing manufacture to railroads the Fruit Express icing to be used in re- Growers transport frigerator and trucks which cars per- perishable goods to other states. The engaged in inter- who ice the cars are

sons transportation, thus in making ice. It seems me but not those beyond the intent the statute stretch say Congress that a manufacturer commerce”, producing “goods for and is un- Fair Standards Act der the Labor because transportation agencies, transport- goods buy locally supplies that manufacturer some

Case Details

Case Name: Atlantic Co. v. Walling

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 13, 1942

Citation: 131 F.2d 518

Docket Number: 10337

Court Abbreviation: 5th Cir.