WHITE MOTOR CO. v. LITTLETON et al.
No. 10015.
Circuit Court of Appeals, Fifth Circuit.
Dec. 12, 1941.
124 F.2d 92
We have carefully considered appellant‘s claim in the light of the record. We think it clear that its claim of exemption may not be sustained. The act is unambiguous and operates to exempt all those coming within its terms and those terms cannot be enlarged or diminished by rulings of the Administrator, such as that, because sales are made to commercial instead of to private users they are not sales at retail. If therefore defendant were otherwise a retail dealer, we should hold it exempt though the retail sales were made to commercial rather than to private users. But in no reasonable view of the term the statute uses, can it be said that appellant‘s plant was either a retail or service establishment. Such servicing as it did was only in connection with its prime business of selling, and the selling as it did was, not retail selling in the generally accepted use of that term.
On its second point, that the proof is insufficient to support the verdict and judgment, appellant stands better. Appellee did make proof that part of the overtime he claimed was done on work outside of Texas. He made proof too that a part of it was done in unloading the refrigerator equipment from the cars on its arrival in Dallas under consignment from the manufacturer in California. We think it clear that such overtime was in commerce. But the greater part of the overtime work claimed was in connection with, delivering units of equipment from the warehouse to a purchaser‘s place of business in Texas for installation and servicing these installations after they had been set up. An employee working both inter-state and intra-state must point out what part of his work was in intra- and what part in inter-state commerce. Klotz v. Ippolito, D.C., 40 F.Supp. 422; Fleming v. Arsenal Building Corporation, D.C., 38 F.Supp. 207; Jewel Tea Co. v. Williams, 10 Cir., 118 F.2d 202. It was error too to allow plaintiff for the time set up in his Exhibit A, as “Sundays on call” without further explanation, a recovery for 12 hours overtime each day. Putting aside the unreasonableness of the claim that because he was “on call” on Sunday he was “at work” for 12 hours, when eight hours was his work day, we think it clear, that the mere statement that he was “on call” without more, in the face of the record which shows that a person “on call” merely had to leave his telephone number or place where he could be found, is not proof that he was engaged in work either regular or overtime within the meaning of the Fair Labor Standards Act. For the failure of the proof in these respects, the judgment is reversed and the cause is remanded with directions to ascertain and allow plaintiff for, the amount of actual overtime he worked in interstate commerce including therein all time worked in such commerce whether on Sunday or any other day and excluding therefrom all time claimed when the claim is merely for being “on call” without more.
Reversed and remanded with directions.
R. Curtis McBroom and Jack Carter, both of Fort Worth, Tex., for appellees.
Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.
HOLMES, Circuit Judge.
Appellees are mechanics who were employed during 1938 and 1940 in the service and repair department of the Dallas branch of the White Motor Company. They brought this suit under Section 16 (b) of the
Section 13 (a) (2) of the Act provides that Section 6 thereof 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. The establishment in which these employees were engaged sold the products manufactured by the parent organization elsewhere, serviced and performed specified changes in those products, and conducted a repair and reconditioning department. It is admitted that this was a service establishment, and whether it was also a retail establishment is disputed in argument but not disputed in the evidence.
Plaintiffs below introduced no evidence bearing on the question, and the trial court made no express finding thereon. C. H. Guntherman, appellant‘s district accountant, testified in behalf of the company that over seventy per cent of the sales by the Dallas branch were made direct to the consumer in quantities never in excess of six units during the period from 1938 through 1940. The inference from the entire evidence is that all sales to the ultimate consumer in excess of one or two units were unusual. Guntherman‘s testimony was not contradicted, and the witness was not impeached.
The word retail is not defined by the Act. Given its common and ordinary acceptation when used in sales parlance, it means a sale in small quantity or direct to the consumer, as distinguished from the
It appearing that appellees were engaged in a retail and service establishment, said Section 6 did not apply to appellant if the greater part of its selling or servicing was in intrastate commerce. If the phrase selling or servicing be construed disjunctively, clearly appellant falls within the exemption provided by the statute. The witness Guntherman testified that all of the sales made by the Dallas branch during the period in question, with the exception of one truck, were intrastate. The only evidence to the contrary was the testimony of appellees’ witness Duke that he had delivered trucks from the Dallas branch to a consumer in New Mexico. He also had made other interstate deliveries, but none of these was a sale. Taking the evidence in the light most favorable to appellees, it is clear that more than ninety per cent of the sales by the Dallas branch were intrastate. Construed disjunctively, the statute exempts appellant if either more of the sales or more of the servicing was intrastate, and the preponderance of the intrastate selling alone is sufficient to render Section 6 inapplicable.
If selling or servicing was intended to be a conjunctive phrase (which is most plausible in cases where the employer is a selling and servicing establishment), the same result is reached. The evidence most advantageous to appellees discloses that approximately eighty per cent of the servicing was interstate and over ninety per cent of the selling was intrastate. Therefore, if the total volume of business transacted was divided equally between selling and servicing, the greater portion would be intrastate. The only evidence in the record relating to the ratio of each class to the total volume of business is found in the testimony of Guntherman. He was asked, “Is that the principal part of your business, this servicing?” He answered, “No, Sir, it is more or less supplementary to the sales end of it.”
With the record in this state, every reasonable interpretation of Section 13 (a) (2) of the Act finds this appellant squarely within the exemption it provides. Section 6 thereof has no application here, and the judgment founded upon it cannot stand. The judgment appealed from is reversed, and the cause remanded to the court below for further proceedings not inconsistent with this opinion.
HUTCHESON, Circuit Judge (specially concurring).
In addition to the reason given in the opinion for reversing the judgment of the trial court, I think it clear that it must be reversed, because of the complete failure of the proof to show how much of the work done by plaintiff was in interstate and how much in intrastate commerce. There was some testimony that some of the plaintiffs did some work in “commerce“. But it is clear that by far the greater part of the work done by them was not. An employee doing work both in inter- and in intra-state commerce must point out, with sufficient definiteness to rest a finding on what part of his work was in interstate and what part in intrastate commerce. Super-Cold Southwest v. McBride, 5 Cir., 124 F.2d 90. This the proof wholly failed to do.