Camfield v. West Texas Utilities Co. , 1942 Tex. App. LEXIS 762 ( 1942 )

On Motion for Rehearing. In the original opinion herein it is stated: "We are further of the opinion that an employee engaged in the State in the generation and transmission of electrical power to a customer such as a telegraph company, who utilizes same in part to transmit messages without the State, is not engaged in interstate commerce. We do not believe that the generation of the electricity for the purpose of such use constitutes the ``production of goods for commerce.'"

In our opinion the proposition that such an employee is not engaged in interstate commerce is correct. We have grave doubt as to the correctness of the proposition that such activity does not constitute the "production of goods for commerce."

We do not mean that the purchaser is not engaged in interstate commerce in so far as the electricity produced is utilized to transmit interstate messages. Electrical current or power is an article of commerce. It is bought and sold every day. In case it is produced for use in transmission of interstate messages, it is a means of interstate commerce when utilized by the purchaser. The construction of a passenger coach is perhaps not interstate commerce, although it could hardly be said that if the purchaser intended to use same in interstate commerce, the coach would not be "produced for commerce." By the same token, we think that if the manufacturer of the coach intended to sell the same to one who was to use it in interstate commerce, the manufacturer is "producing goods for commerce." It is true that the purchaser does not intend to resell the article; but such purchaser does utilize same in the performance of a service which constitutes interstate commerce. Ice produced for the consumption of an interstate carrier is not transported for sale, but is used only as an aid in the furtherance of interstate commerce. An employee engaged in the production of such ice to be used for such purpose would, we think, be engaged in the "production of goods for commerce." It has been so held by one of the intermediate Federal courts. Fleming v. Atlantic Co., D.C., 40 F. Supp. 654.

As indicating the broad and comprehensive coverage of the Fair Labor Standards Act and as in a measure supporting our conclusion in a general way, we call attention to the cases of Enterprise Box Co. v. Fleming, 5 Cir., 125 F.2d 897, and a case handed down by the U.S. Supreme Court after the submission of the briefs in this case, Kirschbaum v. Walling,316 U.S. 517, 62 S. Ct. 1116, 86 L. Ed. 1638.

However, in this case, the evidence fails to directly show that during the time of plaintiff's employment defendant was selling electric current generated at defendant's San Angelo plant for the transmission of messages beyond the borders of the State. Under appellee's construction thereof, it only shows that at the date of the trial defendant's San Angelo plant was engaged in part in this activity. The relevant time was the period during which plaintiff claimed the overtime. The general character of defendant's activities during this period was in issue. Appellee did not object to the testimony at the time it was offered — did not by cross-examination seek to show same was irrelevant. Under these conditions, if by any reasonable construction of the testimony it might be referable to the relevant period, an issue of fact was thereby raised. But while this is true, the testimony in itself must furnish a basis for such inference.

We have carefully reread the testimony, and in the case of each witness it is only susceptible of the construction that at the time the witness was testifying it was then purchasing electrical current from defendant as an aid or means of engaging in interstate commerce. For how long prior to the trial the witnesses had been purchasing current for such purposes in no way appears from the testimony. The trial was in June, 1941. The period during which plaintiff claimed overtime was from the 24th day of October, 1938, to the 25th day of August, 1940.

We do not believe that from the fact that the witnesses were in June, 1941 purchasing electric current from defendant, it can be reasonably inferred that they were so purchasing same during the period covered by plaintiff's suit.

We regret that it is not in our power to reverse the case to the end that plaintiff might supply, if able, this deficiency in proof. The trial court entered a proper judgment under the evidence introduced, and it is beyond our power to reverse same.

We adhere to the views expressed in our original opinion, that, the furnishing by the San Angelo plant of current for use outside the State being only sporadic, the burden was upon plaintiff to show that he put in overtime in this activity.

The motion for rehearing is hereby overruled

WALTHALL, J., not participating.