At the close of plaintiff’s evidence the defendant in the court below made a motion for judgment as in case of nonsuit, C. S., 567. The court below allowed the motion and in this we think there was error.
We take it that there is no question as to the jurisdiction to sue in the State court.
In 14 Am. Jur., pp. 440-441, part sec. 247, is the following: “Courts of the United States and of the states have concurrent jurisdiction in all cases between citizens of different states, whatever may be the matter in controversy, if it is one of judicial cognizance, and a conflict of jurisdiction is always to be avoided. It is therefore a general rule that the right of a plaintiff to prosecute his suit in a court, having once attached, cannot be taken away by proceedings in another court. So, it may be stated as a general rule that whenever a legal right arises and the State *190court is competent to administer justice, tbe right may be asserted in the State court, although the Federal Court may have jurisdiction of the same question, subject, however, to the proviso that there is no law limiting jurisdiction to the Federal Courts. In regard to State courts the law is also said to be settled that courts of general jurisdiction therein have power to decide cases involving the rights of litigants under the Constitution or statutes of the United States unless deprived of the right so to do by the terms of the Federal Constitution or acts of Congress.” For another clear statement of the same rule, see 21 C. J. S., p. 797. There was plenary evidence that defendant was engaged in interstate commerce within the purview of the act.
In National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S., 1, the Supreme Court upheld the constitutionality of the National Labor Relations Act of 5 July, 1935, and speaking through the Chief Justice, said: (op. 37, 38) “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. . . . The close and intimate effect which brings the subject within the reach of Federal power may be due to activities in relation to productive industry although the industry when separately viewed is local.” The argument that the percentages between interstate and intrastate commerce in the distribution of goods produced is a material consideration, is held futile in two decisions of the Supréme Court of the United States. In Santa Cruz Fruit Packing Co. v. National Labor Relation Board, 303 U. S., 453 (decided 28 March, 1938), the Chief Justice said: (op. 467) “There is thus no point in the instant case in a demand for the drawing of a mathematical line. . . . The critical words of the provision of the National Labor Relations Act in dealing with the described labor practices are ‘affecting commerce,’ as defined. Section 2 (6). It is plain that the provision cannot be applied by a mere reference to percentages and the fact that petitioner’s sales in interstate and foreign commerce amounted to 37 per cent, and not to more than 50 per cent, of its production cannot be deemed controlling.”
The question for our determination: Did plaintiff, an employee of the defendant, come within the provision of the Fair Labor Standards— Acts of 1938 (29 U. S. C. A., secs. 201-219) ? We think so, under the facts and circumstances of this case.
The language of the act to be construed, 29 U. S. C. A., sec. 203 (j), being sec. 3 (j) of the act, reads as follows: “For the purposes of this act an employee shall be deemed to have been engaged in the production of goods, if such employee was employed in producing, manufacturing, *191mining, 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." (Italics ours.)
Plaintiff testified: “It was necessary to have those boilers filled up with water, and if they had not been kept filled up at night they would have burned dry and that would have ruined the boilers. The mill foreman told me to pump up the boilers at 8 o’clock, and they would have to be pumped up after that. I have pumped as high as four or five times in a night, and would average three or four times. A glass showed whether the boilers did or did not have water in them, and I was supposed to keep enough water in them so that the fireman could raise the steam in the morning without slowing down. I was not paid anything extra for that. . . . During the eleven hours that I was on the job I was required to stay on the defendant’s mill premises, and did stay. . . . In addition to being employed to punch the clock, I was employed to keep water in the boilers, to see that there would be water in the boilers so they could get steam in the morning. When I made my rounds I would observe whether the boilers needed water or not, I would have to go up in front so I could see the water glass, and when I finished my rounds I would then start the pump.”
In Wood v. Central Sand and Gravel Co. and Fischer Lime and Cement Co. (U. S. Dist. Court, Western Dist. of Tenn., Memphis Division), 33 Fed. Supp., 40, thei decision was rendered in an employee suit by a night watchman who also fired an engine to maintain steam in said engine for use each morning. There was an elaborate, well-written opinion, by Martin, District Judge, citing many authorities, in which the night watchman was allowed to recover. We quote from p. 46: “In a later case, Southern Pacific Co. v. Industrial Accident Commission, 251 U. S., 259, 64 L. Ed., 258, 40 Sup. Rep., 130, 10 A. L. R., 1181, the Supreme Court cites the Pederson case, the Shanks case, and also N. Y. Central R. Co. v. Porter, 249 U. S., 168, and Kinzell v. Chicago, M. & St. P. R. Co., 250 U. S., 130, and says: (op. 263) 'Generally, when applicability of the Federal Employers Liability Act is uncertain, the character of the employment in relation to commerce may be adequately tested by inquiring whether at the time of the injury, the employee was engaged in work so closely connected with interstate transportation as practically to be a part of it.’ ” Applying the true principle of these Supreme Court decisions to the facts concerned here, it is found that the plaintiff, serving as he was as night watchman to protect all the property and equipment at an employer’s plant where interstate commerce goods were produced and also performing the additional duties of firing an engine so as to keep up steam and have the engine ready each morning for use in connection with interstate commerce was in *192actuality engaged in the production of goods for interstate commerce within the meaning of sections 6 and 7 of the Fair Labor Standards Act of 1938. Certainly, Congress intended no such unjust discrimination against a night watchman, situated as was the plaintiff in the instant case, as would result from an unjustifiably narrow interpretation of the humane Fair Labor Standards Act.
The present case we think comes within the provisions of the Fair Labor Standards Act, as the duties of this night watchman were more than that ordinarily required of one so termed. The duty of plaintiff was to keep water in the boiler so that in the morning steam could easily be available. If the boilers were not kept filled up at night, they would have burned dry and that would have ruined them and made them unfit for use. It is clearly apparent that the man who attended to the boiler in the day was engaged in “occupation necessary to the production thereof” of goods. Why should not the man at night whose duty it was to keep the boiler fit for service in the production of goods receive the same benefit accorded men directly at work producing these goods ? His duties-were more than a night watchman, he fed water to the boilers which were necessary in the production of goods.
We think this case distinguishable from Rogers v. Glazer, 32 Fed. Sup., 990. Otis, J., writing the opinion, at p. 992, said: “I do not think that it can be said that a watchman for such an establishment as the defendants maintain, a part of whose duty it may be said — a very small part of whose duty was to watch the pile of scrap iron on the premises, I do not think that it can be said that he is engaged in an occupation necessary to the production of goods. Perhaps I may be giving too literal an interpretation to the word ‘necessary.’ Certainly it is not necessary to the production of goods that there should be a watchman at all. In many yards scrap is assembled and sold without any watchman and I do not think that it can be said that a watchman produces goods. He may do that which is helpful to the business, he may help to produce the profits that arise from the business. He does not produce.the goods.” In the present case he performed a duty necessary in the production of goods.
The United States Department of Labor Interpretative Bulletin No. 1, issued November, 1938, at pp. 4 and 5, reads as follows: “The second category of workers included, those engaged ‘in the production of goods for (interstate) commerce,’ applies, typically but not exclusively, to that large group of employees engaged in manufacturing, processing, or distributing plants, a part of whose goods moves in commerce out of the State in which the plant is located. This is not limited merely to employees who are engaged in actual physical work on the product itself, because by express definition in section 3 (j) an employee is deemed to *193have 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.’ Therefore the benefits of the statute are extended to such employees as maintenance workers, watchmen, clerks, stenographers, messengers, all of whom must be considered as engaged in processes or occupations ‘necessary to the production’ of the goods. Enterprises cannot operate without such employees. If they are not doing work ‘necessary to the production’ of the goods they would not be on the pay roll.” Although this administrative interpretation is not binding on this Court, its reasonableness is persuasive.
The court permitted defendant to ask plaintiff on cross-examination the following question: “You did nothing toward the actual manufacture or production of the lumber which was manufactured?” The witness answered, “No.” We think the court was in error in permitting this question, for, as the question was stated it involved a conclusion of law for the court, and was not an evidentiary factual matter. He could tell what he did, but whether these acts constituted the “manufacture or production of lumber” was a question of law for the court to decide.
For the reasons given, we think the judgment of the court below must be
Beversed.
BaeNhill, J., dissents.