1. One whose activities are confined to the movement of goods which have already been produced for interstate commerce is not engaged in the production of goods for interstate commerce.
2. An employee engaged in the building or maintaining or repairing of receptacles or the handling of goods to be stored therein, which goods have come to rest, is engaged in intrastate commerce and not interstate commerce within the provisions of the fair labor standards act of 1938, and is not covered by the provisions of the act.
DECIDED OCTOBER 25, 1945. J. L. Pitman brought suit against the Texas Company, to recover wages due under the United States fair labor standards act of 1938. The defendant filed demurrers, which were overruled, and it excepts to this judgment.
The allegations of the petition setting forth in detail the kind of work performed by the employee are contained in paragraph 3 which we here quote: "Your petitioner shows that in his employment and work for the defendant during the periods of time alleged in this suit, he worked in the State of Georgia, South Carolina, Florida, and Alabama; and the nature of the work actually done by him was repairing, rebuilding, and installing gasoline storage tanks, where gasoline was shipped into said States by railroad cars and tank boats, and repaired, rebuilt, and installed pumps, pipe lines, and equipment in connection therewith as a part of said storage and distribution stations; that when gasoline was received by railroad shipment or by tank boats at their respective *Page 129 storage tanks or distribution stations where it was stored, and from said tanks was delivered to the retailer for the purpose of sale and consumption by the consumer.
"3 (a). The tanks, pumps, and pipes used in said storage tanks and distribution stations were purchased by the defendant and shipped into said respective states and received at said destination by your petitioner for the defendant on the flat cars in which it was transported into said State and by him unloaded from the flat cars and installed, rebuilt where necessary, and repairs made thereon were necessary for the purpose of continuing the transportation of said gasoline to the retailer and by him to the consumer.
"3 (b). That on or about May 10, 1941, your petitioner dismantled a distribution station for the defendant in Wauchula, Florida, consisting of two eighteen-thousand-gallon gasoline tanks, together with such pumps and pipes and facilities in connection therewith, and loaded said gasoline tanks on freight cars for transportation by rail, one of said tanks going to Augusta, Georgia, and the other to Albany, Georgia, and your petitioner followed said shipments, and in Augusta, Georgia, and Albany, Georgia, reinstalled said tanks, including such pumps, pipe lines as were necessary for them to be connected to tank cars containing gasoline, which were shipped by railroad cars out of the State of Georgia to Augusta and Albany, Georgia; and when said installations were completed, the gasoline in said railroad tank cars was pumped into said storage tanks where it could be kept until removed from the storage tanks into trucks for the purpose of being delivered to customers and the ultimate consumer; that the receipt and storage of gasoline in these storage tanks was made constantly, and at some of the storage tanks daily, and gasoline was removed from said storage tanks to the retailer and consumer daily.
"3 (c). That in repairing storage tanks and distribution centers, your petitioner built and repaired fences which were built around the plant for the protection of said respective storage tanks, and he replaced worn-out floors, roofs, made enlargements to said plants, painting the same, and in making these repairs your petitioner would order lumber, gates, paints by requisition directed to the defendant in Atlanta, Georgia, and these supplies would be shipped from one State to the other and delivered to your *Page 130 petitioner in whatever State and at whichever station they were required, and your petitioner would receive the same and use them in building, repairing, replacing and enlarging said respective storage stations for the defendant; that your petitioner traveled from one station to another and from one State to the other whenever directed by the defendant to do so, and made such installations and repairs as were desired at each respective station; that iron gates were shipped from purchasers in Georgia to the defendant's station in South Carolina, and your petitioner received the same in South Carolina for the defendant, and installed said gates as a part of the defendant's bulk receiving stations in South Carolina.
"3 (d). That your petitioner was required by the defendant to travel from one State to the other and to carry his tools with him, so that when he arrived at a plant owned by the defendant in another State he would be ready to go to work.
"3 (e). That the tanks, pumps, and pipes installed in building a bulk station and in repairing the same would be purchased by the defendant in one State and shipped to the various States and stations where needed, and your petitioner would install the same at their destination; that your petitioner does not have an itemized list of each of said items used by him during the time that he was employed by the defendant, as alleged herein, but said defendant does have a list thereof and personal knowledge of each and every item purchased as used by this defendant in the various States in which your petitioner worked for the defendant.
"3 (f). That each of the bulk stations was used for the purpose of reception, storage, and distribution of gasoline which had been produced, refined, and transported by the defendant in interstate commerce from the several States into the States in which your petitioner worked.
"3 (g). That each and all of the services rendered by your petitioner were necessary as a part of the defendant's system of producing, refining, and storing gasoline in interstate commerce, and as a part of the defendant's system of sale and distribution of gasoline, and when said bulk stations were built, rebuilt, repaired, or enlarged, your petitioner would actually pump gasoline out of tank railroad cars into said storage tanks, and supervise and assist in the pumping of gasoline from the storage tanks to *Page 131 the trucks which delivered said gasoline to the retailer dealer and its ultimate consumer."
The essential grounds of the demurrers are: "1. Defendant demurs generally to plaintiff's petition as amended on the ground that it sets forth no cause of action.
"2. Defendant demurs to each and every paragraph of said amendment of January 6, 1945, except paragraphs 1 and 2, on the ground that said amendment constitutes a conglomerate mass, and is vague and indefinite, and the petition as amended is vague and indefinite, in that plaintiff fails to allege the places at which he worked during each and every week, for which he makes claim, the various kinds of work performed by plaintiff at each place during each week, and the amount of time spent by plaintiff at each kind of work at each place during each week; and said allegations are necessary in order that it may appear what part of the work done by plaintiff was interstate and what part intrastate commerce; and in order that the court may determine as to each and every week involved whether plaintiff was as to that week engaged in interstate commerce to the extent that he may be entitled to recover under the fair labor standards act.
"3. Defendant demurs to each and every allegation in said amendment which relates to acts in connection with interstate commerce by defendant where it appears that such acts were performed by other persons and not by plaintiff, for the reason that plaintiff is not entitled to recover merely because the company for which he worked was engaged in interstate commerce, but plaintiff must show that his work was interstate commerce."
Provisions of the act: 29 U.S.C.A., § 202, deals with the subject-matter. This concerns the employer and the employee "engaged in commerce or in the production of goods for commerce" — interstate commerce.
29 U.S.C.A., § 203 (b, d, e, g, i, j, k), reads: "Definitions: . . (b) `Commerce' means trade, commerce, transportation, transmission, or communication among the several States or from and State to any place outside thereof. . . (d) `Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State, or any labor organization (other than when acting as an employer), *Page 132 or anyone acting in the capacity of officer or agent of such labor organization. (e) `Employer' includes any individual employed by an employer. . . (g) `Employ' includes to suffer or permit to work. . . (i) `Goods' means goods (including ships and marine equipment), wares, products, commodities, merchandise, or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof. (j) `Produced' means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State. (k) `Sale' or `sell' includes any sale, exchange contract to sell, consignment for sale, shipment for sale, or other disposition."
29 U.S.C.A., § 206 (a) reads: "Minimum wages; effective date. (a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce, wages at the following rates — [then follows a schedule of the minimum wages.]"
29 U.S.C.A., § 207, reads: "Minimum hours. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce — [then follows the specifications of maximum hours.]"
29 U.S.C.A., § 213 (a, 2), reads: "Exemptions. (a) The provisions of sections 206 and 207 of this title shall not apply with respect to . . or (2) any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce."
In our opinion the above notations are sufficient references to provisions of the act applicable to the decision of the issue before us. 1. We will now endeavor to apply the provisions *Page 133 of the act to such allegations of fact in the petition as are made issues of law by the demurrers. We feel that we can state with assurance from these allegations that the employee did no act "in the production of goods for commerce," and had no "occupation necessary to the production of goods in interstate commerce" under the provisions of the act. If he had alleged that he was actually in the production of goods for commerce or that his occupation was necessary to the production of goods in interstate commerce, and such statements or conclusions had sufficient specifications of alleged facts to sustain them, then, under this provision of the statute, he would have brought himself within its scope. The production of goods for interstate commerce is one thing, and the movement of such goods in commerce is a different thing. The allegations of the petition set forth no act of the employee which shows that he was at the time engaged in the production of goods for commerce or did anything necessary to such production. The allegations confine his activities to the movement of the goods after they had been produced, and the movement of them after they had gotten into commerce as defined by the act, § 203 (b, j), supra. The words in subsection j immediately above, referring to, "handling and transporting," have reference only to goods in process of production, and not to handling and transporting the goods after the production is completed.
2. Let us then inquire whether or not the activities of the employee as shown by the allegations of his petition place him under the protective provisions of the act as being engaged in commerce — that is to say, did the activities of the employee engage him in the movement of the goods on the interstate journey as to the point where such goods became intrastate commerce in contradistinction from interstate commerce? The attorney for the employer devote considerable attention to the fact that the petition nowhere alleges the portion of time in any one week which the employee devoted to interstate commerce. It is true that the petition does not allege any portion of the time of the employee's activities which were devoted to interstate commerce, or devoted to intrastate commerce with reference to the movement of the goods in question. If the activities of the employee were divisible as between interstate commerce and intrastate commerce, the contention of the attorney for the employer would be correct. But construing *Page 134 the petition most strongly against the employee, he alleges that all of his activities were devoted to interstate commerce, Distinguished counsel for the employee very plainly stated this in his oral argument before this court as well as in his written argument and brief. Therefore, under this construction, we will proceed with the consideration on the ground that, since there is nothing either alleged or argued to the contrary, the allegations of the petition are based on the proposition that the entire activities of the employee were devoted to interstate commerce, and it is not necessary for us to consider or require as a response to the demurrer that more than 20 percent of the employee's time was devoted to interstate commerce. The petitioner is wholly within the protective provisions of the act, or wholly without the protective provisions of the act. Let us then inquire whether his activities were in interstate commerce or in intrastate commerce. It is not contended that he was not engaged in interstate commerce. The goods under consideration were shipped from one State to another and came to rest at the terminus of the interstate shipment. After coming to rest, they were no longer in commerce under the act, but became goods in intrastate commerce. The work of the employee was the construction, repairing, and maintaining of storage tanks in which the goods were stored for retail distribution to the consumer after they had come to rest. The mere fact that he did the same work in several States did not change the character of his activities. When the tank car in which the goods were moved came to a stop at the fartherest point of the interstate journey, and nothing more was to be done except transport the goods to the storage tanks of the employer, the goods ceased to be "in commerce" under the provisions of the act. The mere allegation that the employee would incidentally transfer some of the goods from the carrier's container to the storage tank of the employer would not change the character of his activities from intrastate to interstate commerce. This is true for the reason that before the employee handled the goods they had already come to rest, and under section 213 (a, 2) his activities were then in a service establishment. In Raymond v. Parrish, 71 Ga. App. 293. 297 (30 S.E.2d 669). this court said: "It was pointed out in the cases of Walling v. Jacksonville Paper Company, 317 U.S. 564 (63 Sup Ct. 332, 87 L. ed. 160), Kirschbaum v. Walling, *Page 135 316 U.S. 517 (62 Sup. Ct. 1116, 86 L. ed. 1638), Higgins v. Carr,317 U.S. 572 (63 Sup. Ct. 337, 87 L. ed. 468), and McLeod v. Threlkeld, 319 U.S. 491 (63 Sup. Ct. 1248, 87 L. ed. 1538), that the act stopped short of covering transactions or business merely `affecting' commerce, and under the authority and reasoning of those cases, when the gasoline tank cars, food, and food-processing equipment came to rest at the defendants' school, all phases of commerce connected with them ceased, under the facts alleged, and the guarding of such property was not commerce, or the production of goods for commerce, and was not so closely related to commerce as to be a part of it. The furnishing of gasoline to planes destined for points without the State is not alleged to be engagement in commerce otherwise than by pleader conclusions, so it is not necessary to decide what would be the effect of such transaction." See also 150 A.L.R. 878; Walling v. Bridgeport Tobacco Co., 57 F. Supp. 429. In the last-cited case the court held: "Tobacco wholesaler's employees, engaged in handling tobacco products within one State after interstate movement of the products had come to rest in railroad warehouse, or on wholesaler's platform, were not engaged in commerce within meaning of fair labor standards act. . . It is only after the products have thus come to rest that the defendant's employees have anything to do with them other than the incidental clerical service of ordering from and remitting to the manufacturer. This slight and inconsequential involvement in interstate commerce is, under the authorities cited above, in my opinion insufficient to bring the operations of any of the defendant's employees within . . the fair labor standards act."
Counsel for the employee cite Warren-Bradshaw Drilling Companyv. Hall, 317 U.S. 88 (63 Sup. Ct. 125, 87 L. ed. 83), in support of his contentions that his activities bring him within the provisions of the act. The facts upon which that decision is based are that the employees — who were engaged in drilling oil wells to a depth short of the oil-sand strata, which wells were later "brought in by other workers," and the oil thus brought in, in either crude or refined products, moved in interstate commerce — were engaged in an occupation necessary to the production of oil for interstate commerce, and were therefore covered by the fair labor standards act now under consideration. It appears from the facts of that *Page 136 case that the employees there were engaged to drill the oil wells to a certain depth and to proceed from there to drill other wells. An expert crew of drillers with different equipment would "bring in the wells." The employees of the initial drilling company drilled in thirty-two wells, and thirty-one of them produced oil, and the other gas. The evidence showed that some of the oil produced from the wells ultimately found its way into interstate commerce. The court held that the employees were engaged "in a process or occupation necessary to the production of oil for interstate commerce." We do not discern any benefit which the employee in the instant case can derive from that decision. No similarity at all appears as to the facts in the cases. By reference to the notes of decisions on this act, in29 U.S. 439 et seq., as well as the supplement thereto, and also by reference to the Federal Reporter on the same subject, many additional decisions may be found to the effect that the activities of the employee in the instant case are not covered by the fair labor standards act.
The court erred in overruling the demurrers.
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur.