author: TUTTLE, Circuit Judge:

text:
    Richard D. SKIPPER, Plaintiff-Appellant, v. SUPERIOR DAIRIES, INC., a corporation, et al., Defendants-Appellees.
    No. 74-1729.
    United States Court of Appeals, Fifth Circuit.
    May 5, 1975.

      Jere D. McWinn, Jacksonville, Fla., for plaintiff-appellant.
    Luke G. Galant, Jacksonville, Fla., for defendants-appellees.
    Before TUTTLE, COLEMAN and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

This is an appeal from the judgment of the district court in favor of the corporate and individual defendants after a bench trial following a complaint by Skipper to recover back overtime wages during the entire period of his employment as a route man from December, 1969 to February, 1973. The complaint was filed pursuant to § 16(b) of the Fair Labor Standards Act of 1938 as amended 29 U.S.C. § 201 et seq. The trial court ruled that his employment was such as to exempt him from the protection of the Act under §§ 13(b)(12) (the agricultural exemption) and 13(a)(1) (the outside salesman exemption). The court further found that the plaintiff failed to prove that he worked in excess of 40 hours per week at any time during the period of his employment.

The following brief statement deals with undisputed facts. Richard Skipper was employed at Superior Dairies, Inc. as a route man from November 29, 1969 through June 1973. His claim for overtime pay relates to the period, November 29, 1969 to February 1973. He regularly • arrived at the plant on the mornings on which he made deliveries, Mondays, Wednesdays, Fridays and Saturdays at around 4:30 o’clock; he would report to the office to get his load sheet and check his load prior to leaving the plant in Jacksonville, Florida. The truck was refrigerated and it had been loaded after his previous return trip. He went out on his route that extended to Gainesville, Ocala and Silver Springs, Florida where he left dairy products and other products at some 20 or more stores. He arrived back at the plant on Monday, Wednesday and Friday late in the afternoon or early evening and “checked up” and loaded for the next delivery, a performance which consumed approximately 45 minutes. On Saturdays he had a helper part of the time and he usually returned earlier.

The route run by the plaintiff was composed, except for two or three small stores, of Mini Mart stores. Superior Dairies products were the only dairy products handled by these stores, an arrangement which had been made by the management and not by Skipper. He kept a book by which he estimated how much milk would be taken each day to build up the supply of each Mini Mart store to its capacity. The milk had to be placed in the window (presumably a glass front refrigerator) in accordance with a picture furnished by the store. Most of the milk was left on the floor. Inside the store his duties included stamping, displaying, rotating and cleaning the milk which he had delivered or was delivering on the current trip. The managers of the stores which he served bought only such products from Superior as were authorized by their home office. Upon completion of his duties in each store the manager signed a ticket and he left. Skipper did not undertake to make sales to new Mini Marts, but he serviced them by leaving Superior Dairies products when instructed to do so by the managers of the plant.

Superior Dairies own no cows. In the words of its president, it is “classified in the industry” as “a packaging and processing plant of dairy products” and further “well, in the trade there is — we’re considered as a distributor of milk products.” It buys its raw milk from the Upper Florida Milk Producers Association and it cools the milk, separates it, resulting in skim and cream, pasteurizes it, clarifies it, homogenizes it, cultures and churns buttermilk, standardizing it as to contents, packages it in cartons and distributes it to retail outlets for sale.

Superior Dairies also purchased cottage cheese and orange juice which were processed elsewhere, as well as a variety of fruit drinks which were delivered and sold by it to the same customers served by the route man.

The defendants considered Skipper not to be covered by the provisions of the Wage and Hour Law and they thus kept no time records showing his hours of employment. The evidence dealing with the length of the work week will be dealt with later.

I. THE AGRICULTURAL EXEMPTION.

Neither the trial court nor the appellee in its brief undertakes to answer the contention of the appellant that, regardless of whether Skipper would be an exempt employee because of his work related to “dairying” activity, his admitted delivery and handling of completed processed products from other manufacturers, such as cream cheese, bottled fruit juices, dips and the like, prevented his employer from claiming the exemption based upon his “dairying” activities. As stated, it is without dispute that this company bought completely processed articles which Skipper daily placed on his truck and delivered to the stores on his route as a regular part of his duties for Superior Dairies.

The simplest answer to Superior’s claimed exemption here was that given by this Court in Hodgson v. Wittenburg, 464 F.2d 1219 (5th Cir. 1972):

“The answer to that lies partly in the rhle that an employee’s performance of both exempt and non-exempt activities during the same work week defeats any exemption that would otherwise apply.”

This Court also said in Brennan v. Six Flags Over Georgia Ltd., 474 F.2d 18 (5th Cir. 1973):

“Nor does it make any difference that the employee is doing mixed work. In any week that any particular employee does some non-exempt work he is covered fully, not pro rata.”

Citing Hodgson, supra, and Mitchell v. Hunt, 263 F.2d 913 (5th Cir. 1959).

Moreover, we conclude that the agricultural exemption does not apply to the activities performed by Skipper relative to his delivery and disposition of the dairy products. It is hardly necessary to invoke the principle that an exemption from this ameliorating statute is to be strictly limited, Phillips v. Walling, 324 U.S. 490, 65 S.Ct. 807, 89 L.Ed. 1095, to conclude that under the precise language of the Act no exemption applies to one who plays no part in the actual production of the agricultural product unless such part as is being played takes place “on a farm.” The language of the section is as follows:

29 U.S.C. § 203 — Definitions.

“As used in this chapter— . (f) ‘Agriculture’ includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of Title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, and including preparation for market, delivery to storage or to market or to carriers for transportation to market.” [Emphasis added.]

The officers of this defendant do not themselves consider that they are in the business of “dairying.” They recognize that they are in the business of “a packaging and processing plant of dairy products.” The activities that take place with respect to raw milk purchased from producers, place them in the same situation as the rancher and stock man in Hodgson v. Wittenburg, supra, who sought to exempt his employees who operated his feed lot and corrals before selling the cattle that were shipped in by others for the purpose of sale.

As discussed in this Court’s opinions in Wirtz v. Osceola Farms Co., 372 F.2d 584 (5th Cir. 1967) and as reiterated in Brennan v. Sugar Cane Growers Cooperative of Florida, 486 F.2d 1006 (5th Cir. 1973) the defendants here must prevail, if at all, on the provisions of § 13(b)(12) of the Act as construed in connection with § 3(f) of the Act, Title 29 U.S.C. § 203(f) which is quoted above. In other words, Skipper is an exempt employee only if he is “employed in agriculture” as contemplated by § 3(f), the definition section dealing with agriculture. In both Osceola and Sugar Cane, this Court stated that this statutory definition of agriculture as construed by the Supreme Court embraces both a primary and secondary concept of agriculture:

“As can be readily seen this definition has two distinct branches. First, there is the primary meaning. Agriculture includes farming in all its branches. Certain specific practices such as cultivation and tillage of the soil, dairying, etc., are listed as being included in this primary meaning. Second, there is the broader meaning. Agriculture is defined to include things other than farming as so illustrated. It includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently (sic) to or in conjunction with ‘such’ farming operations.” Farmers Reservoir & Irrigation Co. v. McComb, 1948, 337 U.S. 755, 762-763, 69 S.Ct. 1274, 1278, 93 L.Ed. 1672, 1680.

It is clear that if Skipper was “employed in agriculture,” it would be only under the secondary meaning of the section. To ask whether Skipper, in picking up from Superior Dairies, a company that buys its raw milk from the original farmers, and located nowhere near a farm, and delivering products to the stores on his route was performing acts “either by a farmer or on a farm” is, it seems to us, to answer the question. The outer limits of activities that might be said to qualify under this secondary meaning would, it seems to us, be those involved in the Sugar Cane case, supra. There the Sugar Cane company had its mill complex in the middle of an area occupied by sugar farms or plantations. The company furnished employees who actually harvested the sugar cane, being transported to and from their work daily. The question was whether the cooks and attendants working at the barracks and appurtenant facilities used by the workers were exempt. This Court held that under the circumstances there existing this was work which was done “on a farm” for purposes of the agricultural exemption. The court there said:

“It would not be physically possible for Sugar Cane to place its labor camps right in the middle of the cane fields. Sugar Cane does not claim an agricultural exemption for workers whose efforts are confined to a processing mill at some remote location. These employees, rather, perform their work at a location in close proximity to the fields worked by the laborers for whom they cook and clean.”

The court then stated:

“We hold, consequently, that because of the unique facts of this case, the question of whether the work of the camp cooks and attendants was done ‘on a farm’ should be resolved against the Secretary. A labor camp housing 375 men is ‘on a farm’ in the only sense it can be if it is in fact adjacent to and near the farmland being harvested.”

We conclude therefore that the agricultural exemption did not cover the activities of Superior Dairies and thus Skipper was not “employed in agriculture” within the contemplation of § 13(b)(12) of the Act.

THE OUTSIDE SALESMAN EXEMPTION. II.

The trial court found that Skipper’s services were not covered by the Wage and Hour Law because of the provisions of § 13(a) of the Act which provides as follows:

“§ 13(a) The provisions of sections 6 and 7 shall not apply with respect to (1) any employee employed in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of the Administrative Procedure Act . . .).”

The trial court, without discussing any of the regulations which the statute expressly makes a part of the law, seemed impressed with the value of the exemption to a company that employs drivers to deliver its products on an established given route. In arriving at its findings of fact, the trial court overlooked completely the basic fact that Skipper’s testimony was undisputed to the extent that he did no selling, in the sense that he had no face-to-face negotiation with a store owner or manager who was in the position of purchasing or ordering the products which Skipper was delivering. The evidence was not in dispute that in all convenience store operations, (and these were almost exclusively what Skipper was engaged in supplying) the right to place the product in each individual store, whether it was called Dixie Mini, U — Pak, Jax Mini or Lil’ Champ, all of which are owned by the Mini Mart Company, was obtained by negotiation between the management officials of Superior Dairies and officials of Mini Mart. Superior then authorized Skipper to serve the' individual unit. There is no dispute to the testimony that all Skipper carried on his truck was his estimate of the amount, in individual sizes, of each item which he thought would be needed to bring the supply previously left with the individual store back to an equal amount on each trip. The trial court commented on the fact that nobody but Skipper decided how much he would take on his truck each day. This, of course, was true, because Skipper kept the list of the amount that was supplied to each unit, and he was able to estimate how many items it would take to restock each place. The testimony was undisputed that he made no effort to increase the amount of his deliveries to a unit over the amount that had previously been dropped. He accepted whatever space limitations were available as determined by the manager of each store, commenting that it would have done no good to sell additional amounts than what were being sold, because dairy products were perishable and it would merely have meant that they would have been wasted.

The trial court commented upon the fact that Skipper’s “sales” had dropped during the period of his employment from a point where he at one time made in excess of $300 a week to a point where he sometimes got less than $200 a week. The court concluded that the failure of the plaintiff to maintain a higher income was due to his lack of desire to sell. While we do not normally make the inferences that are part of the normal fact finding of a trial court, it would appear much more likely that the fact that Skipper permitted his weekly earnings to drop so drastically would indicate that he was doing what he said he was supposed to do — that is, merely deliver daily supplies to designated stores, rather than going out on a route on his own and undertaking to build up new customers for his dairy products. His failure to maintain earlier earnings would, it seems to us, be much more likely, an indication that the management of other dairies were being more successful in keeping their products in the several units of convenience stores than was the management of Superior Dairies.

In an indication of how this selling was actually done, Superior’s route manager, Hewlett, testified as follows:

“A: I have been with Mr. Sklaff to solicit.
Q: Convenience stores?
A: Well, you would call them convenience type stores.
Q: On those occasions, describe to the court what occurred.
A: We would go in and tell the price of our merchandise and what it would cost them and what their deliveries would be.
Q: Was this a new convenience store that had just opened up or what?
A: It was sometimes new or sometimes one that had been in business.
Q: All right.
A: I mean we serve anybody that would let us serve them.
Q: All right. Well, if you — if a new convenience store opened up in your territory when you were route manager, what would you do about it, if anything?
A: If possible go see them. If not, Mr. Skipper would drop by. He had the same knowledge we had on what we could do for the customer.
Q: What would it take to get Superi- or Dairies products into that store?
A: Salesmanship.
Q: Well, I realize that.
A: Quality.
Q: But at what level and who made the decision on the part of the convenience store?
A: The customer always made the decision. We was always willing.
Q: Did the store manager there have the authority to grant your request and say “yes, I’ll take your product?”
A: Well when you’re talking about convenience stores are you talking about chain-type convenience stores or independent convenience stores?
Q: Chain-type convenience stores.
A: Most of those chain-types were made in the office, home office at whichever company owned the chain. The managers were not at will to say who they would buy from. [Emphasis added.]
Q: So what would it take to get your products into a store like that?
A: It would take Mr. Skipper to give them the chain and they would go see who owned the chain.
Q: Who would go see the chain?
A: One of — Mr. Sklaff or myself or somebody in this capacity.
Q: You would go to the home office of the chain?
A: If necessary.
Q: Well what other way could you do it, just phone or something?
A: Well you could.
Q: Well how was your customary way to do it?
A: To go to the home office.
Q: And this would take a person such as yourself or Mr. Sklaff?
A: True.”

Superior Dairies introduced at the trial delivery sheets for the month of August through December, 1972 covering the route of the plaintiff, Skipper. At the request of Superior’s counsel, Mr. Skipper identified these as typical and illustrative of all of the delivery sheets for the period he worked with the defendant. It is significant that not a single entry appears on any of these 73 separate delivery sheets of a delivery to any store other than those which were identified as being owned by Mini Mart. Thus, at least, for this period of time, it would appear that not a single sale was made by the route man.

We consider that this case is quite similar to the case of Hodgson v. Klages Coal and lee Co., 435 F.2d 377 (6th Cir. 1970). The facts as stated by the court in Hodgson were as follows:

“So much of the facts as may be stated to be undisputed are as follows. Initially, in a newly opened retail store or in a new account, the store manager must receive permission from the chain’s central office in order to carry appellant’s products. Permission takes the form of an authorization letter from the central office to the store manager. In the case of a newly opened store, appellee’s route manager or sales manager would contact the chain’s central office to solicit the authorization letter for the store. This same procedure seems to be followed in the case of placing new products in established outlets. The authorization letter does not obligate the store manager to buy any goods. Once authorized, the store manager must decide whether he desires to carry the authorized products, and if so, he must allocate the shelf space to be stocked with the new products. He must also contact the appellee’s management, which will then assign the store to a route.
Once the product is established, the routemen’s function inside the store ordinarily is to survey the shelves allocated to his products, determine how many cases would be needed to refill them, and then restock the shelves accordingly from the stock carried on his truck. In some cases the routeman loads the shelves himself, in others he leaves the stock in the aisles to be shelved by the store’s employees. The routeman would then prepare an invoice for the stock delivered and receive payment. In addition, the route-man must sort and crate the empties returned to the store for deposit. Most routemen of some experience seem to have a good idea of how much stock will be needed for the calls of a particular day and would make up an order for the stock to be placed on his truck by other employees the preceding night. He would also carry an extra supply of beverage for any special promotional displays he hoped to place in a store. The placement of additional stock for promotions connected to appellee’s advertising was also handled on the basis of an authorization by the store’s central office and often depended on the volume of sales of the product and the availability of additional space.”

The court carefully considered the provisions of the regulations found in 29 C.F.R. § 541.500 et seq., especially § 541.-505.

It seems to us that the provisions of sub-paragraph (c) of this regulation clearly cover the activities of the driver in the case before us. This sub-paragraph provides:

“One source of difficulty to determining the extent to which a route driver may actually be engaged in ‘making sales’ arises from the fact that such a driver often calls on established customers day after day or week after week, delivering a quantity of his employer’s products at each call. Plainly, such a driver is not ‘making sales’ when he delivers orders to customers to whom he did not make the initial sale in amounts which are exactly or approximately prearranged by customer or contractual arrangement or in amounts specified by the customer and not significantly affected by solicitations of the customer by the delivering driver. Making such deliveries, as well as recurring deliveries the amounts of which are determined by the volume of sales by the customer since the previous delivery rather than by any sales effort of the driver, do not qualify the driver as an outside salesman nor are such deliveries and the work incident thereto directed to the making or soliciting of sales by the driver so as to be considered exempt work.”

Certainly for the period covered by the delivery sheets introduced in evidence (the only ones relied upon by the defendant) those delivery sheets show that the entire activity of Skipper constituted in his delivery of products furnished by Superior Dairies to predetermined customers in amounts “which are exactly or approximately prearranged by customer or contractual arrangement or in amounts specified by the customer and not significantly affected by solicitations of the customer by the delivering driver.” 29 C.F.R. § 541.505(c), supra. We must take as correct the concession exacted from Skipper by counsel for Superior Dairies in cross-examination that these sheets for this period of time exemplified the course of dealings for the entire period.

We conclude that Skipper’s employment was not exempt on the theory that he was an “outside salesman.”

III. HOURS WORKED.

The measure of the plaintiff’s right with respect to overtime payment depends, of course, upon the number of hours worked per week. Here it is undisputed that Skipper’s normal work week was Monday, Wednesday and Friday, with a somewhat shorter run on Saturday. It is undisputed that during the last nine months of his employment, the Saturday run was shortened by reason of the fact that Skipper did not go beyond the City of Gainesville, and under those circumstances he conceded that he may have been back at the plant by noon. It is equally undisputed that for the remaining time of his employment, approximately two years, the Saturday run was longer.

The plaintiff contended that he arrived at the plant at approximately 4:30 a. m. each day; that he thereupon checked his truck and his load and checked out of the plant by approximately 5:00. He contended that he did not stop for breakfast more than once every couple of weeks and that he stopped as long as ten minutes to pick up a hamburger for lunch which he ate on the route. He claims that he returned to the plant about 8:30 and that then took him some 45 minutes to check out, make his report and load his truck for the next trip. This would amount to 16 hours and 35 minutes on Mondays, Wednesdays and Fridays. He said he worked about 12 hours on Saturday until the last nine months of his service at which time he went only to Gainesville, and got back to the plant by 12:00. This would have been eight and a quarter hour day (4:30 a. m. to 12:00 plus 45 minutes for check-out). This would have amounted to a weekly stint of 61.5 hours per week for all but the last nine months and 57 and three-quarters hours for that period.

Testifying on behalf of the plaintiff, Preston Hewlett, who was a high school youth who worked during the first eight months of Mr. Skipper’s employment, worked regularly only on Saturdays. He occasionally helped out on a week day if he could get out of school. He recalled that they left the plant at 5:00 a. m. ate breakfast in Gainesville, which took 30 minutes, and returned at 4:00 p. m. This testimony, of course, does not throw any light upon Skipper’s hours of work on Monday, Wednesday and Friday when he had no helper. All witnesses testified that when he had a helper, the trip took less time. Hewlett’s testimony would support a finding that the work day on Saturdays was from 5:00 a. m. to 4:00 p. m. with 30 minutes out for breakfast and ten minutes to pick up lunch “to go.” This would amount to ten hours and 20 minutes, to which must be added 30 minutes for loading and 45 minutes for unloading, or a total of 11 hours and 35 minutes for a Saturday run with a helper. There is no evidence that Skipper had a helper except for the eight months during which young Hewlett worked for him.

Mitchell Sklaff, president of the company, and himself a defendant, and whose testimony, therefore, might normally be treated as binding on the defendant, testified that he did not know when Skipper left, but he saw him return at “5:00, 6:00, or 4:00” o’clock. Although it might well be proper for the trier of facts to take the figure most strongly against the interest of the declarant, or 6:00, it certainly would not be improper for us to conclude that the trial court must have accepted at least the median figure of 5:00 p. m. as the time he testified Skipper returned from his daily run. This would account for 12 hours plus one and a quarter hours for preparing in the morning and checking out in the evening, less ten minutes for lunch, or 13 hours and five minutes a day. He testified that Skipper returned at 12:00 on Saturday. 5:00 a. m. to noon is seven hours, to which must be added one and quarter hours less ten minutes to pick up lunch to be eaten on the go. This would be a work week of 13 X 3 = 39 plus eight hours and five minutes or 47 hours and five minutes. It must be borne in mind that these are figures testified to by the president of the defendant corporation and himself a defendant, except for the time for checking out in the morning and loading and checking in in the afternoon.

Charles Sklaff, vice president of the company, and also a defendant, was not able to testify as to the time Skipper left the plant in the morning. He testified that when he was at the plant in the afternoons he normally saw Skipper at 5:00 p. m. This would account for a 13 hour day, with the same allowances for checking in and out, and fifteen minutes for the hamburger stop. He did not testify as to when Skipper returned on Saturday, but assuming the correctness of Mitchell Sklaff’s testimony, just recited, this would account for eight hours or a work week of 47 hours.

Albert Sklaff, chairman of the board, and also a defendant, was not at the plant in the morning, and was thus unable to testify as to the time Skipper left. As to the time of return he testified:

“His averages was Monday, Wednesday, and Friday, I’d say between 5:00 and 6:00 average. Saturday was 11:00 most of the time.”

Once again, while it would be entirely appropriate for the finder of facts to take the 6:00 hour as being binding on the adverse witness, a party to the litigation, we assume instead an average return time of 5:30. This would account for a week-day run of I2V2 hours, to which is to be added one and a quarter hours for checking out in the morning and loading and checking in in the afternoon, for a total of 13V2 after deducting fifteen minutes for picking up a hamburger “to go.” Accepting Albert’s figure of a Saturday return at 11:00 a. m. instead of Mitchell’s testimony of 12:00, this would amount to a Saturday total of seven and a quarter hours, including check-in and check-out time. This would amount to a total work week of 46V2 hours.

The only possibly conflicting testimony as to the time Skipper left the plant in the morning, which he said was normally 5:00, was the testimony of Louis Hewlett, a disinterested witness who had formerly been state supervisor and before that a supervisor at the Superior Dairy plant. When asked as to the time Skipper left in the mornings Hewlett said: “The mornings that I was there, he would leave 5:00 or 6:00. Some mornings he would leave at 7:00 or 8:00, depending on if he overslept or whatever.” He then testified as follows:

“Q: All right, how about in the evening, what time did he come in in the evening?
A: Anywhere from 4:00 to 6:00.”

On cross-examination Mr. Hewlett testified that he worked throughout the state for the dairies for a substantial part of the time that Skipper worked the route. Finally, the following colloquy took place:

“Q: How many days would you normally be out there in the morning?
A: Some weeks, I was out there every day. Some weeks I wasn’t out there at all.”

He also stated that if he was in town he was at the plant until every man had left.

There is also the testimony of a former route supervisor, Fernandez, who occasionally took Skipper’s route if he was ill. He was asked: “When you were not running that route, did you have occasion to see Mr. Skipper when he left on that route in the mornings?

“A: Yes, sir, I have seen him when he left on it and when he comes in.
Q: About what time would he normally leave?
A: Well, normally, if he got up on time he should leave around 5:30, but he has left as late as 8:30 or 9:00. [Emphasis added.]
Q: What was the cause of that if you know?
A: I don’t know. I assume he overslept.”

On this record, in which all three officers of the defendant company, all of whom were themselves defendants to the litigation, testified that Skipper’s return to the plant was at an average time of 5:00 p. m., and where there is no substantial evidence to contradict the testimony of Skipper and Preston Hewlett that the starting time for the run was approximately 5:00 a. m., following a preparatory period, it is unimportant that two witnesses testified that they had actually made the run which they described as being similar or identical to that run part of the time by Skipper at times varying from eight to twelve hours. This has little bearing on the case.

The employee is entitled to compensation for hours actually worked by him. If another employee could or did perform the same duties in less time, a trier of the facts could, of course, conclude that such person was a faster worker than the complaining employee. Such fact would not detract from the binding effect of the testimony of the owners of the business and the testimony of the employee which established a longer day of work. Even if the trial court were to accept as true Louis Hewlett’s testimony that he saw Skipper leave as late as 5:30 often enough to make a specific finding to that effect, this would reduce the work week by two hours, which would still leave a minimum of between 44 and 45 hours per week.

Finally, a simple glance at the 73 different delivery lists introduced in evidence, showing the items to be loaded, checked, carried and delivered, makes plain that there is no reason to disbelieve the unimpeached testimony of Skipper and his assistant as to the time consumed in checking in in the morning and loading the truck and in cheeking out after the deliveries in the afternoon. And, again, however, if the trial court had considered these services at all, which is not apparent, and had reduced the claimed time by as much as half an hour a day, the absolutely undisputed evidence would require a finding that the average work week exceeded 40 hours by two to three hours. This is not de minimis in light of the length of time involved and the requirements of the statute that any underpayments found to be due would be doubled.

The standard of review in a wage and hour case of this kind, where the employer fails to keep accurate records is well established in this Circuit. In Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721, this Court quoted from Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946) as stating the rule where “work not compensated for is performed, but the employer’s records are inaccurate or inadequate.” The Supreme Court said:

“The solution ... is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may be only approximate. . . .” 328 U.S. at pp. 687, 688, 66 S.Ct. at p. 1192.

The burden which shifts to the employer when no record is kept of the actual number of hours worked, as is the case here, was dealt with in this Court’s opinion in Shultz v. Hinojosa d/b/a H & H Meat Products Co., 432 F.2d 259 (5th Cir. 1970). In that case this Court set forth the rule that when the employer fails to keep time records, he must “disprove” the employee’s testimony that the Act was violated. Here the Court held that the preponderance of the evidence was in favor of the defendants as to the finding which it made to the effect that “plaintiff’s average work week was 40 hours per week or less and that insufficient proof exists in favor of plaintiff, that he worked over 40 hours in any one week during the period material to this case.”

As stated, the Hinojosa case establishes the proposition that where records are not kept, the employer has to “disprove” the evidence adduced on behalf of the employee. The appellant here contends that the trial court used the wrong standard of proof, in that the court weighed the evidence pro and con. While the standard of proof should be somewhat different where an employer takes his chances with being in compliance and thus not keeping the wage and hour records of employees which he contends are exempt than in other types of litigation, we think this difference is that the burden of proof shifts to the employer. The trial court found that the employer carried that burden. It determined that the preponderance of the evidence was with the employer. However, we are firmly convinced that, in light of the testimony of the defendants themselves, the holding by the trial court that the evidence as to the 40 hour or less work week preponderated in favor of the employer is clearly erroneous.

We have dealt to an unusual extent with the facts in this case, because it is a fact case. In doing so, we have dealt only with the undisputed testimony of the plaintiff on the one side and something less than the most damaging testimony given by the defendants themselves on the other.

The judgment is therefore reversed and the case is remanded for further proceedings not inconsistent with this opinion.

      . Title 29 U.S.C. § 213(b)(12) provides:
      “The provisions of this section shall not apply with respect to .
      (12) Any employee employed in agriculture

      . This regulation provides as follows:
      “Where drivers who deliver to an employer’s customers the products distributed by the employer also perform functions concerned with the selling of such products, and questions arise as to whether such an employee is employed in the capacity of outside salesman, all the facts bearing on the content of the job as a whole must be scrutinized to determine whether such an employee is really employed for the purpose of making sales rather than for the service and delivery duties which he performs and, if so, whether he is customarily and regularly engaged in making sales and his performance of nonexempt work is sufficiently limited to come within the tolerance permitted by § 541.5. The employee may qualify as an employee employed in the capacity of outside salesman if, and only if, the facts clearly indicate that he is employed for the purpose of making sales and that he is customarily and regularly engaged in such activity within the meaning of the Act and this part. As in the case of outside salemen whose jobs do not involve delivery of products to customers, the employee’s chief duty or primary function must be the making of sales or the taking of orders if he is to qualify under the definition of § 541.5. He must be a salesman by occupation. If he is, all work that he performs which is actually incidental to and in conjunction with his own sales effort is exempt work. All other work of such an employee is noriexempt work. A determination of an employee’s chief duty or primary function must be made in terms of the basic character of the job as a whole. All of the duties performed by an employee must be considered. The time devoted to the various duties is an important, but not necessarily controlling, element.”

      . “A: The only day being different would be Saturday. Now, I am not familiar with the route man that much but on Saturday, I run a cooler inventory and Mr. Skipper would normally come in on Saturday: I would have my inventory run. Now, I don’t know whether his route changed or anything of this nature. I don’t know how his route was run or how many stops he had or where they were at.
      Q: What time would that be on Saturday?
      A: This would be around noon on Saturday.
      Q: Was that normally true every Saturday?
      A: Every Saturday.”

      . Since the only testimony in conflict with Skipper’s statement that he did not stop for breakfast is that of his helper who worked for him on Saturdays, there is no evidence to support the deduction of a half hour from any of the work weeks subsequent to the first eight months for a stop for breakfast which occurred on Saturdays when young Hewlett was working.

      . While there is no de minimis rule with respect to wage and hour compensation, we are reluctant to refer to a single instance of clear evidence of what appears to be a failure to pay for overtime. Among the 73 different delivery sheets actually introduced in evidence there is a group of one week’s sheets showing five instead of four trips by Skipper. This included a regular trip on Thursday, December 21, a regular trip on Friday, December 22, each of which covered the full number of stops, a short trip (apparently to Gaines-ville) on Saturday, the 23rd, a short trip on Sunday, December 24, and a regular trip on Tuesday, December 26.- Moreover, Skipper testified that regularly on Christmas Eve he had run an extra trip.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    L. W. UMPHRES, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.
    No. 73-4006.
    United States Court of Appeals, Fifth Circuit.
    April 30, 1975.
    Rehearing and Rehearing En Banc Denied June 23, 1975.

      Dale E. Muller, James R. Sloan, Austin, Tex., for plaintiff-appellant.
    William Simon, John S. Kingdon, Howrey, Simon, Baker & Murchison, Washington, D. C., William G. Winters, Jr., Houston, Tex., for defendant-appellee.
    Before GEWIN, BELL and COLEMAN, Circuit Judges.
   PER CURIAM:

Appellant Umphres, a former operator of four retail service stations in the Houston area, brought suit in the district court alleging that Shell Oil Company, his lessor, had violated various provisions of the Sherman and Clayton Acts, and the Clayton Act as amended by the Robinson-Patman Act. He contended that Shell had engaged in horizontal price-fixing, vertical price-fixing, price discrimination, and illegal tie-in arrangements with respect to gasoline, trading stamps, customer contests, and tires, batteries, and accessories [“TBA”]. Appellant also charged that Shell had generally engaged in anticompetitive practices in the form of forcing him to terminate his service station leases.

The district court granted a directed verdict for Shell after a five day trial, and at the point when appellant had completed his case in chief. This appeal is from the judgment entered for Shell on the directed verdict. We affirm.

Our standard for reviewing directed verdicts was explicated in Boeing Co. v. Shipman, 5 Cir., (en banc), 1969, 411 F.2d 365:

On motions for directed verdict the Court shall consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. 411 F.2d at 374.

See also Panotex Pipe Line Co. v. Phillips Petroleum Co., 5 Cir., 1972, 457 F.2d 1279, affirming a directed verdict in an antitrust case.

Reviewing the record on appeal with the Boeing principles in mind, we conclude that the district court did not err in granting Shell a directed verdict. Appellant’s evidence of horizontal price-fixing included testimony that retail gasoline prices of the name-brand service stations in Houston tended to fluctuate in concert. The witnesses’ knowledge of price changes was limited to but five of the approximately 2800 service stations in the Houston area, however. Appellant failed to produce evidence establishing the existence of an intercompany price-fixing agreement, arrangement, or conspiracy at the retail level, or at the wholesale level that might have been reflected in the alleged fluctuations of retail prices.

As to the vertical price-fixing charge, appellant, two other ex-dealers, an ex-sales representative, and one of appellant’s station managers, all gave testimony as to the pressures applied to Shell dealers seeking compliance with Shell’s suggested retail gasoline prices. Appellant admitted that it was always his decision to change his prices. One of his station managers testified that Shell agents had changed prices at his station only once — by one cent per gallon for one day when Shell executives were touring Houston. There was no provision in appellant’s leases or in other dealers’ leases requiring compliance with suggested prices. Evidence in support of the vertical price-fixing charge was clearly insubstantial.

Neither was there substantial evidence to support appellant’s RobinsonPatman Act price discrimination claim. The short of the matter is that there was no evidence of discriminatory sales to two different purchasers by the same seller, where the recipient of the lower price was in competition with appellant. There was no testimony that Shell sold gasoline or other products to any retail competitor of appellant at a different price than Shell charged appellant.

There was considerable testimony offered as to claimed illegal tie-ins involving gasoline, trading stamps, eustomer contests, and TBA. Ex-dealers and the ex-sales representative testified to the pressure applied to Shell dealers to participate in company programs and to offer company products. No lease provision required such participation. Shell itself did not operate the trading stamp concession. Appellant admitted that he was free to choose to participate in the contests, and that participation actually increased his sales volume. Shell stated in writing to the dealers that they were not required to sell Shell TBA. Appellant admitted that he had continued to sell non-Shell products throughout the terms of his leases. The evidence as to illegal tie-ins does not approach the level of such substantiality as to make issues for the jury.

Appellant testified that Shell attempted to force him out of business because it did not approve of the operation of a U-Haul trailer business on Shell property and because of his departures from Shell’s merchandising programs. Contrary evidence included Shell’s announced policy against multi-station ownership promulgated in 1968, the fact that only one of appellant’s four leases was not renewed by Shell, and the testimony of appellant that he was motivated to sell his last and most profitable station out of an interest to sue Shell which exceeded his desire to retain the station.

The record in this case reflects the respective roles of an oil company and its dealer in a competitive market where the oil company must distribute its products within the strictures of the antitrust laws. Plaintiff failed in his effort to prove any one of the alleged violations of those laws with evidence sufficient to warrant submission to the jury.

In the view we take of the case, it is unnecessary to reach questions associated with the district court’s further conclusion that appellant failed to prove damages.

Affirmed.

      . Appellant alleged violations of Section 1 of the Sherman Act (15 U.S.C.A. § 1) [horizontal and vertical price-fixing], Section 3 of the Clayton Act (15 U.S.C.A. § 14) [illegal tie-ins], and Section 2 of the Clayton Act as amended by the Robinson-Patman Act (15 U.S.C.A. § 13(a)) [price discrimination]. Jurisdiction was alleged on the basis of 15 U.S.C.A. § 15.

      . Appellant’s lease on his Bellfort station was not renewed in 1968. Appellant sold his lease to the South Belt station in 1968, can-celled his lease to the College station in 1969, and transferred his Broadway station lease in 1969.


text:
    Wilbur Dean COX, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.
    No. 73-1991.
    United States Court of Appeals, Fifth Circuit.
    May 1, 1975.

      Dunklin Sullivan, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.
    Robert G. Richardson, Harry H. Walsh, Staff Counsels, Huntsville, Tex., for petitioner-appellee.
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   PER CURIAM:

The grounds upon which the district court granted the appellee’s petition for writ of habeas corpus are effectively foreclosed by the recent decision of this court en banc in Van Blaricom v. Forscht, 5 Cir. 1975, 511 F.2d 615, No. 72-1374, April 18, 1975. Accordingly, we vacate the judgment below and remand for dismissal of the petition.

Petitioner was sentenced May 26, 1947 by his Texas trial court to 30 years confinement following a guilty plea to a charge of robbery by assault. Shortly thereafter, on April 22, 1948, petitioner received a conditional pardon and a release from custody. Following release, he was three times convicted for minor offenses involving drunkenness. After he was charged in 1954 in Harris County, Texas, with felony theft, the petitioner’s pardon was revoked and he was returned to prison to serve his original sentence.

On March 4, 1959, the petitioner was paroled and again released from custody. On grounds that he was unable to “fulfill the terms and conditions of his parole,” his parole was revoked on December 2, 1963. The alleged parole violations consisted of “(1) being intoxicated and creating a disturbance in a beer lounge, and (2) driving while intoxicated, followed by a 1963 charge against Petitioner for simple assault for an alleged assault upon his step-father.”

Petitioner spent the next eight years in prison without being directly advised of the grounds for his parole revocation and without being afforded a hearing at which he could present his version of the events leading to the revocation. Finally, in October 1971, Cox requested the hearing to which he claimed he was entitled under Texas Code Crim.Proc., art. 42.12, § 22 (1965), as amended, Texas Code Crim.Proc., art. 42.12, § 22 (1973). This request was denied as “long over due and out of order.”

After exhausting available state remedies, Cox sought habeas relief below. He argued there, as he does here, that he is presently entitled to a hearing on either or both of two theories. Petitioner urges first that Morrissey v. Brewer, 1972, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, should be given retrospective application at least so as to require that he be accorded some type of hearing, albeit not necessarily one complying with all of the six standards announced by the Court in Morrissey. Second, he contends that he is entitled to a hearing under due process standards firmly established and prevailing in 1963 at the time of his parole revocation, irrespective of whether Morrissey is to be applied retrospectively.

Van Blaricom v. Forscht (en banc), supra, sounded the death knell to any chance of success for Cox under either theory. There we held: (1) that Morrissey was not to be applied retroactively, and (2) that the same result that would be achieved by applying Morrissey retroactively — in this case affording a parole revocation hearing — could not be achieved by alternative means. 511 F.2d at 618. There the matter ends.

The judgment of the district court granting the writ is vacated and this cause is remanded with directions to dismiss the petition for habeas corpus.

Vacated and remanded with directions.

      . We withheld disposition of the case at bar pending the decision of the court en banc in Van Blaricom.

      . Cox unsuccessfully prosecuted an earlier suit challenging the constitutionality of that portion of Vernon’s Ann.Texas Code Crim. Proc., art. 42.12, § 22 (1965), as amended, Texas Code Crim.Proc., art. 42.12, § 22 (1973), which denied credit to prisoners toward service of sentence for time served on parole in parole revocation cases. See Cox v. Texas, 5 Cir. 1970, 433 F.2d 982.

      . Art. 42.12, § 22 (1965) provided:
      Sec. 22. Whenever a paroled prisoner is accused of a violation of his parole on information and complaint by a law enforcement officer or parole officer, he shall be entitled to be heard on such charges before the Board under such rules and regulations as the Board may adopt; providing, however, said hearing shall be held within forty-five days of the date of arrest and at a time and place set by the Board. When the Board has heard the facts, it may recommend to the Governor that the parole be continued, or revoked, or modified in any manner the evidence may warrant. When the Governor revokes a prisoner’s parole, he may be required to serve the portion remaining of the sentence on which he was released on parole, such portion remaining to be calculated without credit for the time from the date of his release on parole to the date of his arrest or charge of parole violation.

      . Morrissey teaches that minimal due process in parole revocation cases requires:
      (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
      408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499. Cox here asserts that retrospective application of Morrissey does not require complete compliance with each of these standards, but does require, at the very least, that some type of adversary revocation hearing be afforded.

      . Citing Green v. McElroy, 1959, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377, and Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817.

      . Also unavailing is Cox’s ancillary argument that the principles of Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, preclude application of the waiver doctrine to his failure to demand a hearing under Tex. Code Crim.Proc., art. 42.12, § 22 (1965), Note 3, supra. If, as we have held in Van Blaricom, Morrissey is not to be applied retrospectively, Cox’s alleged waiver was not a waiver of a recognized constitutional or fundamental right. Hence, no substantial federal question is involved.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. David Carl RIMKA, Defendant-Appellant.
    No. 74-1370.
    United States Court of Appeals, Sixth Circuit.
    March 21, 1975.
    Certiorari Denied June 23, 1975.
    See 95 S.Ct. 2663.

      Theodore B. Walter, Lexington, Ky. (Court appointed), for defendant-appellant.
    Eugene E. Siler, Jr., U. S. Atty., Robert M. Murphy, Lexington, Ky., for plaintiff-appellee.
    Before EDWARDS and ENGEL, Circuit Judges, and RUBIN, District Judge.

       Honorable Carl B. Rubin, United States District Judge for the Southern District of Ohio, sitting by designation.

   PER CURIAM.

Appellant Rimka was convicted after jury trial on a charge of armed robbery of a bank, in violation of 18 U.S.C. § 2113(a) (1970). His principal complaint on appeal is that the District Court, after hearing a motion to suppress evidence, admitted into evidence a confession which he made on the second day after his arrest.

It was appellant’s contention that this confession was inadmissible because it was involuntary in that it was the product of duress represented by a promise of treatment for withdrawal symptoms which he was suffering on the day of his confession. He also contends that his Miranda rights were violated the previous day when FBI Agents continued to interrogate him, although he had indicated an unwillingness to talk.

We find no merit to the first of these issues. There was ample evidence from which the judge, and the jury subsequently, could have determined voluntariness of the confession on the day when it was given.

It appears that in fact, however, he was questioned on the preceding day even though he had indicated an unwillingness to talk. This represents a specific violation of the rules set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is clear also, however, that the questioning on the first day of appellant’s arrest did not result in any statement from appellant which was introduced in evidence.

On the second day after his arrest, appellant was the subject of line-up procedures which resulted in his being told that he had been identified. Miranda warnings were given to appellant and on this occasion there was testimony that he talked freely about his participation in a number of bank robberies after reading and signing a statement that he had been informed of his constitutional right.

This court has previously held:

“Hill contends that his confession was involuntary as a matter of law. He asserts that once he was advised of his Miranda rights and declined to make a statement, the police were precluded at all times thereafter from asking him any questions or talking with him about the case in any way. We join other circuits in refusing to adopt such a narrow construction of Miranda.” Hill v. Whealon, 490 F.2d 629, 635 (6th Cir. 1974).

In view of the fact that on the first day of his questioning appellant Rimka had indicated that he might have something to say after the show-ups were conducted, and in view of clear proofs from which the judge and jury could have found that proper Miranda warnings had been given on the day when Rimka’s confession was obtained and that there was testimony from which the judge and jury could have concluded that the confession was obtained without duress or promises, we conclude that the government has met its “heavy burden” of establishing the voluntariness of the confession.

The judgment of the District Court is affirmed.


author: COFFIN, Chief Judge.

text:
    Manuel SOLDEVILA, Plaintiff-Appellee, v. SECRETARY OF AGRICULTURE OF the UNITED STATES of America, etc., Defendants-Appellants.
    No. 74-1347.
    United States Court of Appeals, First Circuit.
    Submitted Feb. 12, 1975.
    Decided March 13, 1975.

      Carla A. Hills, Asst. Atty. Gen., New York City, Julio Morales Sanchez, U. S. Atty., San Juan, P. R., William Kanter and Robert S. Greenspan, Attys., Dept, of Justice, Civ. Div., App. Section, Washington, D. C., on brief for defendants-appellants.
    Blas C. Herrero, Jr., Jose M. Herrero, Herrero & Herrero, Hato Rey, P. R., and John L. A. De Passalacqua, Hato Rey, P. R., for plaintiff-appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

In 1972, the appellee was appointed State Director of the Farmers Home Administration for Puerto Rico and the Virgin Islands, an agency of the United States Department of Agriculture. It is conceded that in the same year the appellee made available to his subordinates, federal employees, banquet tickets, to be sold at fifty dollars each, the proceeds to be donated to the campaign of Mr. Justo Mendez, a member of the New Progressive Party who was subsequently elected to the Senate of Puerto Rico.

On the basis of the sale of tickets, the Department of Agriculture, in a letter dated October 15, 1973, charged appellee with violation of 5 U.S.C. § 7324(a)(2), a provision of the Hatch Act, and indicated that appellee would either be discharged or other appropriate action would be taken in “not less than 30 days”. Upon receipt of this letter, the appellee went to the Civil Service Commission and, although this was not the next appropriate step in his administrative appeal, asked for an advisory ruling of the applicability of the Hatch Act to Puerto Rican Parties not affiliated with National Parties in light of 5 U.S.C. § 7326(1). The appellee also responded to the Department of Agriculture by letter dated November 9, 1973, denying that his participation in the Mendez campaign violated 5 U.S.C. § 7324(a)(2) and informing it that if the charges were not dropped he requested a hearing at the Department of Agriculture’s convenience. The appellee was not discharged nor was further action taken by the Department of Agriculture until the following year.

On April 1, 1974, the Civil Service Commission ruled that the New Progressive Party was not within the definition of “partisan political party” contained in the Hatch Act. The specific provision of that Act that was in the question, 5 U.S.C. § 7324(a)(2), was indicated in the Civil Service Commission letter. Independently, the Director of Personnel for the Department of Agriculture wrote appellee:

“On October 15, 1973, I wrote you pro- ■ posing to take action to effect your discharge from employment or to take other appropriate action based on a charge of taking an active part in a political campaign in violation of Section 7324(a)(2) of Title 5, United States Code. The proposal, which was issued under Part 733, Title 5, Code of Federal Regulations, is herewith can-celled.”

However, on the same date, by different letter, the same official also wrote that on the basis of the facts out of which the first charge arose the Department proposed appellee’s removal, after a 30 day-required notice period, for violation of 5 U.S.C. § 7323.

The appellee responded by letter on April 23, charging a violation of his civil rights; pointing out the recent Civil Service Commission ruling on the non-applicability of the Hatch Act to his case; stating that the political contributions were in no way coerced by him, that the other charges were frivolous; and, finally, requesting dismissal of charges.

On May 20, appellee was notified that on the basis of the charges of April 1 he would be removed as of June 7, 1974. He was also informed of his right to appeal the decision to the Civil Service Commission. A phone call to the Commission revealed that no appeal was available until after discharge. Appellee, unwilling to suffer discharge prior to hearing, filed this action on June 6, one day before his scheduled removal. He sought and was granted a temporary order restraining the Department from dismissing him. The district court then granted a preliminary injunction from which the Secretary appeals.

The suit was brought against the Secretary of Agriculture in his official capacity and against the Personnel Director of the Department, both officially and personally, and sought not only injunctive relief against discharge but damages for violations of civil rights purportedly under 42 U.S.C. § 1983. In an effort to get to the root of this case we note at the outset what the government fails to point out in its brief on appeal and failed to note in its presentation to the district court: no action under § 1983 lies against federal officials acting pursuant to federal law; and the appellants were not alleged to have acted “under color of state law”. See Lasher v. Shafer, 460 F.2d 343 (3d Cir. 1972); Savage v. United States, 450 F.2d 449 (8th Cir. 1971).

This case, with the civil rights claim removed, becomes a straightforward claim of wrongful discharge. The Supreme Court has recently ruled that there is no constitutional right to hearing prior to suspension or discharge from government service even for a non-probationary employee. Arnette v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). The strong policy against enjoining incomplete agency actions, which is reinforced by the equity policy against enforcing personal service contracts and the disruptive effect of granting temporary relief in such cases, requires an extraordinarily strong showing of irreparable harm to warrant a preliminary injunction. Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974).

The district court was in error in finding that the appellee made such a showing of extraordinary harm. The appellee testified that he and his family and particularly his daughter were psychologically troubled by the potential discharge. He also testified that he would have to resign from an elective post as member of the Board of Directors of the Caribe Federal Credit Union which requires that members be federal employees and that he would not be able to get other federal or state employment during his removal from office. To hold that this showing is sufficient is to contravene the Supreme Court’s instructions that “insufficiency of savings or difficulties in immediately obtaining other employment — external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself— will not support a finding of irreparable injury, however severely they may affect a particular individual.” Sampson v. Murray, supra, at 92 n. 68, 94 S.Ct. at 953.

But the crucial error made by the district court lay in its holding inapplicable Sampson’s anti-injunction teaching because of its view that the charge of April 1 was essentially identical to the previously alleged violation and that the Civil Service Commission’s ruling on the inapplicability of the Hatch Act would control the decision on the second charge. The error was that 5 U.S.C. § 7323 is not a part of the Hatch Act, and 5 U.S.C. § 7326(1) does not by its terms apply to it. While we do not pass on whether the same policy considerations may control, it clearly cannot be said that the Civil Service Commission is directly bound by its previous ruling, nor that the appellee had exhausted his administrative remedies when this suit was brought in the district court. The ruling in Sampson v. Murray, supra, is therefore controlling and district court action must await a final administrative decision. If appellee has not already filed his appeal from final administrative action he may do so within thirty days of the date of this opinion.

The judgment of the District Court is reversed.

      . 5 U.S.C. § 7324(a)(2) provides: “An employee in an Executive agency or an individual employed by the government of the District of Columbia may not ... (2) take an active part in political management or in political campaigns.”

      . 5 U.S.C. § 7326(1) provides: “Section 7324(a)(2) of this title does not prohibit political activity in connection with — (1) an election and the preceding campaign if none of the candidates is to be nominated or elected at that election as representing a party any of whose candidates for presidential elector received votes in the last preceding election at which presidential electors were selected.”

      . 5 U.S.C. § 7323 provides: “An employee in an Executive agency . . . may not request or receive from, or give to, an employee, ... a thing of value for political purposes. An employee who violates this section shall be removed from the service.” Additional charges were made in the letter proposing removal. It was charged that appellee had a departmental secretary type minutes of the Parent Teachers Association meeting and used government paper and stencils therefor in violation of 7 C.F.R. 0.735-16(a) and used government employees to do personal errands in violation of 7 C.F.R. 0.735-16(a). These matters have been treated as secondary by both parties. A more serious charge was that appellee had requested a subordinate to obtain the party affiliation of all Farmers Home Administration employees. In light of our decision, we need not consider appellee’s failure to exhaust administrative remedies with reference to these charges.

      . 5 U.S.C. § 7323, Act of Aug. 15, 1876, ch. 287 § 6, 19 Stat. 169. 5 U.S.C. § 7324 is part of the Hatch Act, Act of Aug. 2, 1939, 53 Stat. 1148, as amended.


text:
    MON CHI HEUNG AU, aka Heidi Heung, and Arlene L. Gillespie, for themselves and all others similarly situated, Appellees, v. The Honorable Herman T. F. LUM and Wayne Y. Kanagawa, Appellants.
    No. 73-2654.
    United States Court of Appeals, Ninth Circuit.
    Feb. 5, 1975.

      Peter J. Levinson, Deputy Atty. Gen., Honolulu, Hawaii, for appellants.
    Ian L. Mattoch, Honolulu, Hawaii, for appellees.
    Before ELY and CARTER, Circuit Judges, and LANE, Judge, U.S. Court of Customs & Patent Appeals.

       Honorable Donald E. Lane, Judge, United States Court of Customs and Patent Appeals, Washington, D. C., sitting by designation.

   OPINION

PER CURIAM:

This appeal is from a declaratory judgment, issued by a three-judge court convened pursuant to 28 U.S.C. §§ 2281, 2284, holding unconstitutional the durational residency requirements of the Hawaii divorce statute, .Hawaii Rev.Stat. § 580-1. 360 F.Supp. 219 (D.Hawaii 1973). Since the District Court’s order neither grants nor denies injunctive relief, our court has jurisdiction of the appeal. 28 U.S.C. § 1253. Mitchell v. Donovan, 398 U.S. 427, 430-32, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970).

The Hawaii statute requires that a person applying for a divorce be a domiciliary of the state for one year and of a judicial circuit within the state for three months. The District Court held that those requirements violated the equal protection clause of the Fourteenth Amendment to the United States Constitution.

Submission of this appeal having heretofore been deferred, we now order the cause submitted for disposition.

Pursuant to the Supreme Court’s very recent opinion in Sosna v. Iowa, - U.S. -, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), the judgment of the District Court must be, and it hereby is,

Reversed.


text:
    Pietro C. RUBINO, for himself and all other persons similarly situated, and Philip J. Zichello, Plaintiffs-Appellants, Harry T. Nusbaum, Plaintiff-Intervenor-Appellant, v. John J. GHEZZI, individually and in his capacity as Acting Secretary of State of the State of New York, et al., Defendants-Appellees.
    Nos. 511, 876, Dockets 74-2374, 74-2435.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 22, 1975.
    Decided March 3, 1975.

      Stephen Gillers, New York City (Elliot A. Taikeff, New York City, of counsel), for plaintiffs-appellants.
    Gainsburg, Gottlieb, Levitan & Cole, New York City (Samuel Gottlieb, Alan C. Krieger, New York City, of counsel), for plaintiff-intervenor-appellant.
    A. Seth Greenwald, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. for the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for defendant-appellee Ghezzi and Attorney General, pro se.
    William P. DeWitt, Adrian P. Burke, Corp. Counsel, New York City, for defendants-appellees Katz, Irizarry and New York City Bd. of Elections.
    Dikman & Botter, Jamaica, N. Y., for New York City Family Court Judges’ Ass’n, amicus curiae.
    Miller, Singer, Michaelson & Raives, New York City (Alfred Miller, Stephen L. Solomon, New York City, of counsel), for American Ass’n of Retired Persons, amicus curiae.
    Before LUMBARD, HAYS and MULLIGAN, Circuit Judges.
   PER CURIAM:

Philip J. Ziehello, one of the named plaintiffs in this action commenced in the United States District Court for the Southern District of New York, was a Judge of the Civil Court of the City of New York, elected for a term which commenced on January 1, 1970. Although the normal term of office for this position is ten years, the New York State Constitution (Art. 6, § 25) and the Judiciary Law, McKinney’s Consol.Laws, c. 30 (§ 23) provide for mandatory retirement at the age of 70. Since Judge Ziehello was born in 1904, his term expired under state law on the last day of December, 1974. The second named plaintiff, Pietro C. Rubino, is a voter over 70 who alleges that he voted for Ziehello. The intervenor, Harry T. Nusbaum, is also a Judge of the Civil Court of the City of New York who was elected on November 4, 1969 but who will become 70 in 1978, which will result in his mandatory retirement on December 31, 1978, or one year prior to the end of the normal ten-year term. The complaint below sought preliminary and permanent injunctive relief against the enforcement of the cited state constitutional and statutory provisions as violative of the First and Fourteenth Amendments of the United States Constitution, and further sought the convening of a three-judge district court pursuant to 28 U.S.C. §§ 2281 & 2284. Rubino also sought class action treatment as the representative of all voters over 70 in the state, as well as all persons who voted for Judge Ziehello. On the return day of an order to show cause, October 18, 1974, Judge Thomas P. Griesa of the United States District Court for the Southern District delivered an opinion finding that there was no substantial federal question which would justify the convening of a three-judge court and dismissed the complaint. This appeal followed.

The question before us is whether, under the rule of Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), the district court properly determined that the constitutional grounds raised by the plaintiffs were wholly insubstantial and frivolous. We are of the opinion that the issue of age restrictions upon the term of office of state judges is properly one for the legislative or electoral processes of the State of New York and that the effort to clothe it in constitutional garb is frivolous. We therefore affirm the dismissal of the complaint.

The cases primarily relied upon by the plaintiffs to establish the First Amendment rights of the candidate to run for office and of the voter to be free to elect aged candidates (Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Communist Party v. Whitcomb, 414 U.S. 441, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974); and Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)) all involved restrictions upon access to the ballot, which is not the issue here. The judges seeking relief here were on the ballot and no one was precluded iron voting for them. Both took office for a term clearly established by the legislature and the state constitution and they are properly subject to the conditions imposed by the state upon the length of the term. Gordon v. Leatherman, 450 F.2d 562, 565 (5th Cir. 1971). We find no authority at all which would support the contention that Rubino as a citizen over 70 has any constitutional right to vote for the elderly. We do not deem age to be a suspect classification requiring any strict scrutiny of the state’s scheme of age restrictions upon judicial terms of office. See Weiss v. Walsh, 324 F.Supp. 75 (S.D.N.Y.1971), aff’d, 461 F.2d 846 (2d Cir. 1972), cert. denied, 409 U.S. 1129, 93 S.Ct. 939, 35 L.Ed.2d 262 (1973). It would appear that without question the state could rationally determine that, in the interests of judicial efficiency and the encouragement of younger attorneys with judicial aspirations, a mandatory age limitation of 70 for inferior court judges was reasonable.

The claim that the mandatory retirement age violates the due process and equal protection clauses is, we believe, clearly insubstantial in view of the holding of the Supreme Court in Mcllvaine v. Pennsylvania, 415 U.S. 986, 94 S.Ct. 1583, 39 L.Ed.2d 884 (1974). The Court there dismissed, for want of a substantial federal question, an appeal from the Pennsylvania Supreme Court which upheld a state law requiring retirement of police at age 60. On the basis of that decision, a three-judge court for the District of Columbia in Weisbrod v. Lynn, 383 F.Supp. 933 (1974) dismissed a complaint which sought a declaratory judgment that the Federal Employee Mandatory Retirement Law, 5 U.S.C. § 8335, was unconstitutional because it mandates a 70-year-old retirement age for federal employees irrespective of the health or mental abilities of the employee. The court there examined the Jurisdictional Statement in Mcllvaine and concluded, as we have here, that the issues of equal protection and due process were before the Court in Mcllvaine, and that the Supreme Court did not consider those issues to present a substantial federal question. An appeal was taken to the Supreme Court from the decision in Weisbrod and the Court affirmed the dismissal of the complaint. - U.S. -, 95 S.Ct. 1319, 43 L.Ed.2d 420 (1975). Since the issues before us are substantially similar, if not identical, to those presented in Weisbrod and Mcllvaine, we believe that the court below correctly concluded that there was no substantial federal question and properly dismissed the complaint.

Affirmed.

       Appellants’ principal due process argument is founded upon the irrebuttable presumption doctrine, Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), which has been said to resemble equal protection analysis, Cleveland Bd. of Educ. v. LaFleur, supra, 414 U.S. at 652, 94 S.Ct. 791 (Powell, X, concurring in result); Note, The Irrebuttable Presumption Doctrine in the Supreme Court, 87 Harv.L.Rev. 1534 (1974). The Weisbrod court was faced with the same argument.


text:
    BELMONT INDUSTRIES, INC., Appellant, v. BETHLEHEM STEEL CORPORATION.
    No. 74-1599.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 7, 1975.
    Decided March 7, 1975.

      David Berger, H. Laddie Montague, Jr., Paul J. McMahon, Philadelphia, Pa., for appellant; David Berger, P. A., Philadelphia, Pa., of counsel.
    John G. Harkins, Jr., Patricia L. Free-land, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appellee; Edward C. Perkins, David M. Beckwith, Bethlehem, Pa., of counsel.
    Before ADAMS, ROSENN and WEIS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

This appeal, after a jury verdict for defendant Bethlehem Steel Corporation in an anti-trust case, raises two principal issues with respect to the conduct of the trial. First, plaintiff, Belmont Industries, claims that the trial judge erred in refusing, upon a motion made after the close of evidence, to strike cross-examination testimony which, although violating both the hearsay and best evidence rules, had been received without objection. The second error, asserts Belmont, is the district court’s foreclosure of evidence concerning Bethlehem’s alleged termination, after the filing of the complaint, of the credit previously extended to Belmont.

Since the district court did not err with respect to either ruling, its judgment will be affirmed.

Facts

Bethlehem is a vertically integrated steel producer. Two phases of its operations are relevant to this case: 1) the production of structural steel in the form of shapes and plates, and 2) the fabrication and erection of that structural steel. Because the cost of transporting steel from the mill where it is manufactured to the building site is a significant factor in the fabricator’s total cost, fabricators generally purchase the major portion of their structural steel, particularly in the larger sizes, from the nearest available manufacturing plant. Bethlehem’s mill at Bethlehem, Pennsylvania is the closest one to the Philadelphia market. Consequently, Belmont contends, Bethlehem Steel had a natural, and concededly lawful, monopoly of the market for the manufacturing of structural steel for sale in the Philadelphia area.

In contrast to Bethlehem’s vertically integrated operations, Belmont functioned, until 1971, as an independent steel fabricator, operating primarily in the Philadelphia area. Since Belmont did not operate steel manufacturing facilities, it was dependent on steel producers like Bethlehem for its supply of structural steel. Thus, Belmont was in the dual position of purchasing much of its required structural steel from Bethlehem’s manufacturing division, while at the same time competing with another division of Bethlehem in the fabrication and erection market.

Belmont filed suit against Bethlehem on December 18, 1970, averring that Bethlehem had monopolized or attempted to monopolize the market for the fabrication and erection of structural steel in the relevant geographic area. Specifically, the theory advanced by Belmont is that Bethlehem drove down prices in the fabrication market by entering bids on fabricating jobs that produced losses or unreasonably low profits to Bethlehem’s fabricating division. Bethlehem’s purpose, Belmont argues, was to prevent fabricators located outside of Bethlehem’s transportation-cost advantage area, who were not dependent on Bethlehem for their steel, from competing for jobs within the Philadelphia market. Thus, Belmont asserts, Bethlehem maintained its monopoly in structural steel manufacturing by depressing fabricating prices. As a result of the artifically low prices for fabricating and erecting structural steel, Belmont claims, it sustained substantial losses and was forced to close down its fabricating operations.

Procedural History

The parties agreed to a bifurcated trial, and proceedings on the issue of liability began before a jury on September 26, 1973. In ten days of testimony, Belmont produced eight witnesses, four of whom were employees of Bethlehem. Counsel for Bethlehem based much of his cross-examination of these witnesses on documents taken from the files of Bethlehem and Belmont. During this cross-examination Bethlehem’s counsel elicited from the witnesses a number of facts and figures of which the witnesses exhibited no personal knowledge. The documents were marked as exhibits but were not introduced into evidence. Counsel for Belmont made no objection to the questions as they were asked, and used a number of the documents as the basis for his own re-direct examination as well.

At the close of Belmont’s case, counsel for Bethlehem began to offer the documents in question into evidence. At that point, the trial judge cautioned Bethlehem’s counsel that offering these documents into evidence would, under local rule 33(b), entitle Belmont to a rebuttal argument to the jury that would otherwise not be available to Belmont. Bethlehem then elected not to offer the documents into evidence. Instead, Bethlehem rested its defense without presenting any evidence.

The following day, while the court was ruling on points for charge, counsel for Belmont stated:

May I interrupt a minute because this Charge brings something to mind. . This had occurred as of yesterday evening, and that is the fact that defendant had identified documents and there was certain testimony taken on those documents and now those documents are not introduced as evidence and the testimony on those documents wasn’t necessarily the witnesses’ own present knowledge. *

Belmont thereupon moved to strike the cross-examination testimony that related these documents, on the ground the testimony was hearsay.

After explaining that hearsay testimony that is introduced into evidence without objection is not invalid, the district judge denied Belmont’s motion to strike the cross-examination testimony that was based on documents not placed into evidence by Bethlehem.

As to the second alleged error, Belmont, prior to closing its case, had offered testimony purporting to show that Bethlehem had decided to terminate Belmont’s normal credit terms eleven days after the filing of this suit and that Belmont had forestalled the discontinuation only by threatening to obtain a preliminary injunction. Belmont asserted that the credit termination was tantamount to shutting off Belmont’s only economical supply of steel and that such evidence was probative of Bethlehem’s intent to monopolize. Bethlehem, on the other hand, denied that such a decision to terminate had ever taken place. Rather, Bethlehem claimed, the termination had been recommended by two Bethlehem credit officials, but that a higher-ranking executive had rejected the recommendation. The district court refused to allow Belmont to present evidence on the subject.

The case was submitted to the jury on a series of interrogatories. The jury found that Bethlehem “had the power to control prices or exclude competitors from the market for fabricating and erecting structural steel,” but that Bethlehem had neither the intent to exercise such power nor the intent to achieve such power. Accordingly, judgment was entered in favor of Bethlehem.

Belmont moved for a new trial on the grounds that the district court had erred in refusing to strike the testimony grounded on the documents not in evidence, and that Belmont had been improperly precluded from presenting evidence on the alleged credit termination. In the motion for a new trial, Belmont for the first time argued that the testimony the district court had refused to strike violated the best evidence rule as well as the hearsay rule. The district court denied the motion, and Belmont appealed to this Court.

Denial of the Motion to Strike

When evidence has been admitted without objection, the district court has discretion in deciding whether or not to grant a motion subsequently made to strike the testimony on hearsay or best evidence grounds. Here, the testimony in question had been admitted without objection. Belmont and Bethlehem had both closed their cases, and the court was proceeding to rule on requests for charge. The amount of testimony which Belmont asked the court to strike was considerable, and had been received at widely scattered times over the ten-day trial. In addition, Belmont’s motion did not specify which of the items of testimony were to be stricken.

We cannot say that the trial judge abused his discretion in determining that the possibilities of confusion to the jury, prejudice to the opposing party, and undue delay of a case about to be submitted to the jury outweighed the detriment suffered by Belmont resulting from the reception of this allegedly hearsay and secondary evidence.

In MacCurdy v. United States, the plaintiff asked the district court to strike the testimony of six witnesses, after their testimony had been received without objection. The plaintiff contended that no proper foundation had been established for the admission of the testimony of these witnesses and also that it was irrelevant. The court of appeals stated that “the trial court was clearly not guilty of any abuse of discretion in refusing to strike the testimony of these witnesses after it had been admitted without objection.”

The cases cited by Belmont in support of its contention that its motion to strike was timely differ from the present situation. In Limbeck v. Interstate Power Co., the district court granted a motion to strike the testimony of two witnesses when the motion was made at the end of their testimony. The court of appeals sustained the authority of the lower court to strike. In the present case, we do not say that it would have been error for the trial judge to have granted the motion to strike; we decide only that it was not an abuse of discretion for the district court to refuse to strike the testimony.

The government attorney in Calhoun v. United States suggested in his elosing argument that the jury should reduce the condemnation award because plaintiff was an out-of-state resident. Counsel for plaintiff did not object contemporaneously but, when the court asked for additional points for charge, requested that the court instruct the jury to disregard the specific reference to the plaintiff’s non-resident status. The court of appeals held that the district court erred in refusing such a charge. That situation is distinguishable, however, because of the “extremely prejudicial” nature of the remark and the comparative simplicity of the requested remedy.

Belmont argues that the cross-examination on the basis of the documents was not improper, and that therefore the opportunity to object did not arrive until Bethlehem failed to put the documents into evidence. However, the objection arose, if at all, when Bethlehem solicited testimony based on documents not then in evidence, since at that time a proper foundation had not been established for the questions. If Belmont had raised its objections at the time the questions were being propounded to the witnesses, Bethlehem and the court would have been able to deal with such objections in an orderly fashion. As the court stated in a similar situation in United States v. Aluminum Company of America, “it would be unjust to Alcoa to permit a ground of objection [raised by the United States] to prevail which was not unambiguously interposed until after the taking of testimony was completed. If it were otherwise, then, . . . Alcoa would be deprived of opportunity [sic] to cure or attempt to cure the defect if any existed.” Faced with contemporaneous objections, Bethlehem might have chosen to drop the line of questioning, or to lay a proper foundation for it, or to attempt to elicit the same information in some non-objectionable manner.

The conclusion that the district court did not abuse its discretion in refusing to strike the testimony is reinforced by Belmont’s adoption of at least a portion of the testimony relating to information drawn from documents not in evidence when counsel for Belmont predicated his redirect examination on some of the same documents.

As to Belmont’s best evidence objection to the testimony, it is well-settled law that a party may not seek a new trial on the basis of objections to evidence not brought to the court’s attention at the original trial.

Exclusion of the Alleged Credit Termination

In an anti-trust suit evidence of events which occur after the filing of the complaint may be probative of the intent of the parties. However, though relevant, evidence of subsequent events may be excluded from trial in order to protect other legitimate interests of the court and the opposing party. As stated in McCormick:

There are several counter-balancing factors which may move the court to exclude relevant evidence if they outweigh the probative value. First, the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. Third, the likelihood that the evidence offered in the counterproof will consume an undue amount of time.

The decision whether the risk of unreasonably prolonging the trial or prejudicing or distracting the jury justifies exclusion of proferred evidence is committed to the discretion of the district court.

The trial judge here did not abuse his discretion in excluding evidence of the alleged credit termination. The parties are agreed that Bethlehem in fact continued to extend credit to Belmont after the complaint was filed. Belmont alleges that Bethlehem did not carry through with its planned credit termination only because Belmont threatened to obtain an injunction against Bethlehem’s doing so. Bethlehem claims that the recommendation that it cease extending credit to Belmont was made on the basis of a legitimate concern for the credit-worthiness of Belmont, and further contends that the Bethlehem official responsible for such decisions rejected the recommendation prior to the receipt of Belmont’s threat to seek an injunction. Whatever relevance the alleged credit termination has to the principal issues for trial, resolving the question whether Bethlehem did plan to cut off Belmont’s credit and if so its motivation in doing so, would have consumed considerable trial time. Moreover, there was a risk that the presentation of conflicting testimony on this collateral matter might obscure the central issue in the minds of the jury and confuse the jury with unrelated facts. The excluded evidence also might have provoked a decision by the jury on an emotional basis rather than on a rational consideration of all the evidence in the case.

Accordingly, the decision of the district court will be affirmed.

      . The fabrication of structural steel consists of cutting structural steel into proper lengths, drilling or punching holes in the steel, and finally welding and painting the steel. Erection of structural steel involves transporting the steel to a building site and then assembling the steel to form structural framework of buildings or bridges.

      . In a second count Belmont originally alleged that Bethlehem had violated the RobinsonPatman Act with respect to sales of rolled structural steel and sales of fabricated steel projects. Prior to trial the district court granted Bethlehem’s motion, unopposed by Belmont, for summary judgment on the Robinson-Patman count.

      . Local Rule 33(b) provides:
      In actions which involve no third-party action, if evidence has been admitted on offer by both sides, plaintiffs attorney shall first sum up. . Defendant’s attorney shall next sum up as the nature' of his defense may require. Plaintiff’s attorney may then reply. In like actions, if no evidence has been admitted on offer of any defendant, the same order of summation shall prevail, except that plaintiffs attorney shall not reply.

      . 62 F.R.D. 697 (E.D.Pa.1974).

      . Illingworth v. Industrial Molasses Corp., 272 F.2d 845, 848-49 (8th Cir. 1960); Metcalf v. United States, 195 F.2d 213, 216 (6th Cir. 1952); MacCurdy v. United States, 246 F.2d 67, 68 (5th Cir. 1957).

      . See MacCurdy v. United States, 246 F.2d at 68; Chicago & N.W. Ry. v. Green, 164 F.2d 55, 63 (8th Cir. 1947); Greene v. New York Central R., 209 F.2d 348 (2d Cir. 1953); McCormick, Handbook of the Law of Evidence § 52 (2d Ed. 1972); Wigmore, Evidence § 18 (3d Ed. 1940).

      . MacCurdy v. United States, 246 F.2d 67 (5th Cir. 1957).

      . 69 F.2d 249, 251 (8th Cir. 1934).

      . 384 F.2d 180, 184 (5th Cir. 1967).

      . 35 F.Supp. 820, 827 (S.D.N.Y.1940). See also Revlon, Inc. v. Buchanan, 271 F.2d 795 (5th Cir. 1959).

      . See Trouser Corp. v. Goodman & Theise, 153 F.2d 280, 284, 287-88 (3d Cir. 1946); Bevard v. Bevard, 103 F.Supp. 533 (D.D.C.1952).
      The situation here is distinguishable from that in United States v. DeCarlo, 458 F.2d 358, 372 fn. 1 (3d Cir. 1972), where Judge Aldisert, in his dissent, stated that the party opposing the admission of the evidence had not adopted that evidence by proceeding to cross-examine the witness regarding the challenged testimony after he had made the objection and the trial court had overruled it.

      . United States v. Sytch, 275 F.2d 475, 477 . (3d Cir. 1968); Hornin v. Montgomery Ward & Co., 120 F.2d 500, 504 (3d Cir. 1941).

      . Cornwell Quality Tools Co. v. C. T. S. Co., 446 F.2d 825, 832 (9th Cir. 1971). See United Mine Workers v. Pennington, 381 U.S. 657, 670 n. 3, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965).

      . McCormick, supra, § 185.

      . Kane v. Ford Motor Co., 450 F.2d 315, 316 (3d Cir. 1971); Cafasso v. Pennsylvania R. Co., 169 F.2d 451 (3d Cir. 1948).

      . The antitrust violation alleged in the complaint Is not as in Fortner v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969), a tie-in between the sale of goods and the extension of credit.

      . Independent Iron Works v. United States Steel Corp., 322 F.2d 656, 669-70 (9th Cir. 1963).

      . Independent Iron Works, 322 F.2d at 670; Cromling v. Pittsburgh & Lake Erie R., 327 F.2d 142, 151-52 (3d Cir. 1963).

      . See United States v. 88 Cases, 187 F.2d 967, 974-75 (3d Cir. 1951); International Shoe Machine Corp. v. United Shoe Machinery Corp., 315 F.2d 449, 459 (1st Cir. 1963); McCormick, supra, § 185.