James P. Mitchell, Secretary of Labor, United States Department of Labor v. City Ice Company, Inc. , 273 F.2d 560 ( 1960 )

TUTTLE, Circuit Judge.

The Secretary of Labor appeals from a directed verdict in favor of appellee in this action brought on behalf of two employees for additional compensation provided under the Wage and Hour Law.

The only question is whether on the record made the trial court erred in directing a verdict against the Secretary on the ground that the undisputed evidence was to the effect that the sales of the ice company in question were “recognized as retail sales * * * in the particular industry.”

The critical sales were sales of 25 to 40 tons of ice per delivery to shrimp boats at $4.50 net per ton by a company which made sales at its loading ramp at $3.00 per 300 pound block, or at the rate of $20.00 per ton. It was not disputed that the srimp boat sales exceeded 25% of the total sales so that if they were not recognized in the industry as retail sales the employes were covered and the Secretary would be entitled to recover for them.

It must be borne in mind that this exemption depends not upon whether the particular sales are retail sales, but on whether they are recognized in the particular industry as retail sales.¹ This, of course, is not synonymous with “recognized by the industry.” Obviously what is recognized in a particular industry to be retail can be proved objectively; proof is not restricted to the subjective test of what the members of the industry think of it. See Boisseau v. Mitchell, 5 Cir., 218 F.2d 734.

Here, four industry witnesses, including the president of appellee, testified that in their opinion sales of ice that were not for resale were retail sales. One witness testified for the appellant that he was manager of the local branch of a large ice company and that in his opinion the sales in question to the shrimp boats were wholesale. On cross-examination he said he would accept as authoritative for the industry an expression contained in the bulletin published by the National Association of Ice Industries to the effect that only sales for resale were wholesale sales.

In view of the fact that the jury had the right to consider all the circumstances surrounding the sales, including the great difference in price between the admittedly retail sales and the large or commercial sales, and to consider the opinion of the industry member favorable to the secretary even though weakened on cross examination, we think the issue should have been put to the jury. The jury was, of course, not bound to accept the opinion evidence of the industry experts. New York Life Ins. Co. v. Johnston, 5 Cir., 256 F.2d 115, 118. The weight to be given to their opinions was, of course, to be weighed in light of their self-interest as well as the reasoning with which they supported them. It was not proper for the trial court to take the case from the jury.

The Secretary assigns error because of the refusal of the trial court to permit him to introduce in evidence what he calls a “determination by the Administrator of the Wage and Hour Division, concerning application of the 13(a) (2) and 13(a) (4) Exemptions to Ice Manufacturers and Dealers.” This document purports to be an interpretative bulletin. It simply states that, “In applying the tests of 13(a) (2) exemptions all sales of ice will be regarded as retail except: * * * (4) Sales of ice of a ton or more.”

It is not clear just what effect the Secretary contends should be given to the document. It does not purport to be a finding to the effect that in the ice industry sales of a ton or more are not considered retail sales. It appears only to be instructions for the attempted enforcement of the act by the administrator. Here, it is, of course, no evidence on the issue of how these sales are considered in the industry. It is not offered as a guide to the court in construing the statute. Cf. Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124. It was tendered in evidence to be considered by the jury in passing on an issue as to which it is completely silent: “what is considered in the industry to be retail?” We conclude that the trial court correctly excluded the document from evidence.

Just as the appellee witnesses were permitted to give as the basis of their opinion their familiarity with the practices in the industry, so could a witness for the Secretary if such a one testified to the contrary, give the basis of his opinion, including the studies made by the Wage and Hour Division. We do not think, under recognized rules of evidence he could be permitted to testify as to the conclusion reached by the Wage and Hour Administrator as expressed in the “determination” here in issue.

We have not been favored by a brief or argument on behalf of appellee, since it appears that appellee is not now represented by counsel. In the absence of such presentation, however, we have endeavored to understand and appreciate the full value of its case. The judgment must be reversed and the cause remanded for further and not inconsistent proceedings.

Reversed and remanded.

1 . The statute exemption, which is found in 13(a) (2) of the Act, 29 U.S.C.A. § 213(a) (2) requires that to qualify as a retail establishment it must be one ' 75% o£ whose sales “is not for resale and is recognized as retail sales * * * in the particular industry.”