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Pyramid Motor Corp. v. Ispass, 330 U.S. 695 (1947)

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Pyramid Motor Corp. v. Ispass, 330 U.S. 695 (1947)
United States Supreme Court

From the U.S. Government Printing Office via GPO Access
 
Case:   PYRAMID MOTOR CORP. V. ISPASS

Case #: 330US695


NO. 41.  ARGUED OCTOBER 22, 1946.  - DECIDED MARCH 31, 1947.  - 152 F.2D
619, JUDGMENT VACATED IN PART AND CAUSE REMANDED. 


1.  WHERE A NOTICE OF APPEAL HAS BEEN DULY FILED IN A DISTRICT COURT
BUT THE APPEAL HAS NOT BEEN DOCKETED AND THE TRANSCRIPT OF RECORD HAS
NOT BEEN FILED IN THE CIRCUIT COURT OF APPEALS WITHIN THE TIME
SPECIFIED IN RULE 73(G) OF THE FEDERAL RULES OF CIVIL PROCEDURE, IT IS
NOT AN ABUSE OF DISCRETION FOR A CIRCUIT COURT OF APPEALS TO TAKE INTO
CONSIDERATION THE SUBSTANTIALITY OF THE QUESTION TO BE AT ISSUE ON THE
MERITS OF THE APPEAL, IN CONNECTION WITH ALL THE OTHER CIRCUMSTANCES
BEFORE IT, WHEN REFUSING, UNDER AUTHORITY OF RULE 73(A), TO DISMISS THE
APPEAL.  PP. 702-705. 

2.  AFTER THE INTERSTATE COMMERCE COMMISSION HAD DEFINED SPECIFICALLY
THE CLASSES OF EMPLOYEES OF INTERSTATE MOTOR CARRIERS, INCLUDING
"LOADERS," AS TO WHOM IT "HAS POWER" UNDER SEC. 204(A) OF THE MOTOR
CARRIER ACT TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE,
CERTAIN EMPLOYEES OF AN INTERSTATE MOTOR CARRIER SUED UNDER SEC. 16(B)
OF THE FAIR LABOR STANDARDS ACT FOR OVERTIME COMPENSATION UNDER SEC.
7.  THE EMPLOYER DEFENDED ON THE GROUND THAT THEIR LABOR "CONSISTED
PRIMARILY OF THAT OF DRIVER'S HELPER AND OF LOADER," AND THAT THEY WERE
EXCLUDED BY SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT FROM THE
BENEFITS OF SEC. 7.  HELD:  THE QUESTION WHETHER OR NOT AN INDIVIDUAL
EMPLOYEE IS WITHIN ANY CLASS OF EMPLOYEES AS TO WHICH THE COMMISSION
HAS POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE IS
TO BE DETERMINED BY THE JUDICIAL PROCESS, AND THERE IS NO OCCASION TO
SUSPEND FINAL JUDGMENT PENDING FURTHER FINDINGS BY THE COMMISSION.  PP.
705-707. 

3.  THIS CASE IS REMANDED TO THE DISTRICT COURT FOR DETERMINATION OF
THE STATUS OF THE PLAINTIFFS IN ACCORDANCE WITH THE PRINCIPLES STATED
IN LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 649, AND THE FOLLOWING
PRINCIPLES: 

(A)  IN APPLYING SEC. 204 OF THE MOTOR CARRIER ACT TO PLAINTIFFS, THE
DISTRICT COURT WILL DETERMINE WHETHER OR NOT THE ACTIVITIES OF EACH
PLAINTIFF, EITHER AS A WHOLE OR IN SUBSTANTIAL PART, COME WITHIN THE
COMMISSION'S DEFINITION OF THE WORK OF A "LOADER."  P. 707. 

(B)  IN MAKING THIS DETERMINATION, THE DISTRICT COURT SHALL NOT BE
CONCLUDED BY THE NAME WHICH MAY HAVE BEEN GIVEN TO HIS POSITION OR TO
THE WORK THAT HE DOES NOR BE REQUIRED TO FIND THAT ANY SPECIFIC PART OF
HIS TIME IN ANY GIVEN WEEK MUST HAVE BEEN SPENT IN THOSE ACTIVITIES. 
P. 707. 

(C)  THE DISTRICT COURT SHALL GIVE PARTICULAR ATTENTION TO WHETHER OR
NOT THE ACTIVITIES OF THE RESPECTIVE PLAINTIFFS INCLUDED THAT KIND OF
"LOADING" WHICH IS HELD BY THE COMMISSION TO AFFECT SAFETY OF
OPERATION.  PP. 707-708. 

(D)  THE MERE HANDLING OF FREIGHT AT A TERMINAL, BEFORE OR AFTER
LOADING, OR EVEN THE PLACING OF CERTAIN ARTICLES OF FREIGHT ON A MOTOR
CARRIER TRUCK MAY FORM SO TRIVIAL, CASUAL OR OCCASIONAL PART OF AN
EMPLOYEE'S ACTIVITIES, OR HIS ACTIVITIES MAY RELATE ONLY TO SUCH
ARTICLES OR TO SUCH LIMITED HANDLING OF THEM, THAT HIS ACTIVITIES WILL
NOT COME WITHIN THE KIND OF "LOADING" WHICH IS DESCRIBED BY THE
COMMISSION AND WHICH IS FOUND BY IT TO AFFECT SAFETY OF OPERATION.  P.
708. 

(E)  IF NONE OF THE ALLEGED "LOADING" ACTIVITIES OF THE RESPECTIVE
PLAINTIFFS, DURING THE PERIODS AT ISSUE, COME WITHIN THE KIND OF
ACTIVITIES WHICH, ACCORDING TO THE COMMISSION, AFFECT THE SAFETY OF
OPERATION, THEN SUCH PLAINTIFFS ARE ENTITLED TO THE BENEFITS OF SEC. 7
OF THE FAIR LABOR STANDARDS ACT.  P. 708. 

(F)  IF THE WHOLE OR A SUBSTANTIAL PART OF SUCH ALLEGED "LOADING"
ACTIVITIES OF THE RESPECTIVE PLAINTIFFS, DURING THE PERIODS AT ISSUE,
DOES COME WITHIN THE KIND OF ACTIVITIES WHICH, ACCORDING TO THE
COMMISSION, AFFECT SAFETY OF OPERATION, SUCH PLAINTIFFS ARE EXCLUDED
FROM THE BENEFITS OF SEC. 7 OF THE FAIR LABOR STANDARDS ACT.  P. 708. 

(G)  IF SOME, BUT LESS THAN A SUBSTANTIAL PART, OF SUCH ACTIVITIES OF
THE RESPECTIVE PLAINTIFFS, DURING SOME OR ALL OF THE PERIODS AT ISSUE,
COME WITHIN THE KIND OF ACTIVITIES WHICH, ACCORDING TO THE COMMISSION,
AFFECT SUCH SAFETY OF OPERATION, THEN THE QUESTION AS TO THE RIGHT OF
SUCH PLAINTIFFS TO THE BENEFITS OF SEC. 7 OF THE FAIR LABOR STANDARDS
ACT IS RESERVED, SINCE IT DOES NOT COME WITHIN THE PRECISE ISSUE
DETERMINED IN LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 649.  PP. 708
709. 

PYRAMID MOTOR FREIGHT CORP. V. ISPASS ET AL. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. 

IN A SUIT BROUGHT BY CERTAIN EMPLOYEES OF AN INTERSTATE MOTOR CARRIER
UNDER SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT FOR OVERTIME
COMPENSATION UNDER SEC. 7, A DISTRICT COURT DECLINED TO DETERMINE
PLAINTIFFS' STATUS UNDER SEC. 13(B)(1) AND THE MOTOR CARRIER ACT, BUT
HELD THE CASE "OPEN FOR FURTHER ACTION," IN ORDER TO GIVE THEM AN
OPPORTUNITY TO PRESENT THAT QUESTION TO THE INTERSTATE COMMERCE
COMMISSION.  54 F.SUPP.  565.  UPON PLAINTIFFS' REFUSAL TO DO SO AND
THEIR MOTION REQUESTING A FINAL DISPOSITION OF THE CASE, THE DISTRICT
COURT DISMISSED THE COMPLAINT "WITHOUT PREJUDICE."  59 F.SUPP.  341. 
THE CIRCUIT COURT OF APPEALS AFFIRMED THE DISMISSAL AS TO ONE PLAINTIFF
AND REMANDED THE CASE TO THE DISTRICT COURT FOR ENTRY OF JUDGMENT IN
FAVOR OF THE OTHER PLAINTIFFS.  152 F.2D 619.  THIS COURT GRANTED
CERTIORARI.  327 U.S. 774.  EXCEPT AS TO ONE PLAINTIFF, AS TO WHOM THE
JUDGMENT OF DISMISSAL WAS NOT QUESTIONED HERE, THE JUDGMENT OF THE
CIRCUIT COURT OF APPEALS IS VACATED IN PART AND THE CAUSE IS REMANDED
TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.  P. 709. 

MR. JUSTICE BURTON DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS TWO ISSUES: 

I. WAS IT REVERSIBLE ERROR FOR THE CIRCUIT COURT OF APPEALS TO DENY
PETITIONER'S MOTION TO DISMISS THE APPEAL, MADE ON THE GROUND THAT THE
APPEAL HAD NOT BEEN DOCKETED AND THE TRANSCRIPT OF RECORD HAD NOT BEEN
FILED WITHIN THE TIME SPECIFIED IN RULE 73(G) OF THE FEDERAL RULES OF
CIVIL PROCEDURE?  WE HOLD THAT IT WAS NOT. 

II.  UNDER THE PRINCIPLES WE HAVE STATED IN THE COMPANION CASE OF
LEVINSON V. SPECTOR MOTOR SERVICE, 330 U.S. 649, WAS THE CIRCUIT COURT
OF APPEALS JUSTIFIED IN REMANDING THE PRESENT CASE TO THE DISTRICT
COURT FOR ENTRY OF A JUDGMENT UNDER THE FAIR LABOR STANDARDS ACT, IN
FAVOR OF ALL OF THE RESPONDENTS EXCEPT SHAPIRO?  WE HOLD THAT THE CASE
SHOULD BE REMANDED, BUT WITH DIRECTIONS TO PROCEED IN ACCORDANCE WITH
THE OPINION OF THIS COURT IN THIS CASE AND THE LEVINSON CASE.  THIS
WILL INCLUDE A DIRECTION TO THE DISTRICT COURT TO DETERMINE WHETHER OR
NOT THE ACTIVITIES OF EACH RESPONDENT CONSISTED, WHOLLY OR IN
SUBSTANTIAL PART, OF THE CLASS OF WORK WHICH IS DEFINED BY THE
INTERSTATE COMMERCE COMMISSION IN EX PARTE NO. MC-2, 28 M.C.C. 125, 133
134, AS THAT OF A "LOADER" OF FREIGHT FOR AN INTERSTATE COMMON CARRIER
BY MOTOR VEHICLE, AND AS AFFECTING THE SAFETY OF OPERATION OF MOTOR
VEHICLES IN INTERSTATE OR FOREIGN COMMERCE.  FN1 

THIS ACTION WAS BEGUN IN 1942 IN THE CITY COURT OF THE CITY OF NEW
YORK, PURSUANT TO SEC. 16(B) OF THE FAIR LABOR STANDARDS ACT.  FN2  IT
SOUGHT TO RECOVER UNPAID OVERTIME COMPENSATION FOR SERVICES RENDERED TO
THE PETITIONER BY EACH OF SIX OF THE EIGHT RESPONDENTS AS "A DELIVERY
CLERK AND 'PUSH-BOY'," DURING VARIOUS PERIODS BETWEEN OCTOBER 24, 1938,
AND SEPTEMBER 20, 1941, COMPUTED IN ACCORDANCE WITH SEC. 7 OF THE FAIR
LABOR STANDARDS ACT,  FN3  TOGETHER WITH INTEREST, LIQUIDATED DAMAGES
AND AN ATTORNEY'S FEE.  THE CASE WAS REMOVED BY THE PETITIONER TO THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. 
THE OTHER TWO RESPONDENTS THERE JOINED IN THE COMPLAINT ON LIKE
GROUNDS.  THE PETITIONER ANSWERED THAT IT WAS AN INTERSTATE COMMON
CARRIER OF FREIGHT BY MOTOR VEHICLE; THAT THE LABOR PERFORMED BY EACH
OF THE RESPONDENTS "CONSISTED PRIMARILY OF THAT OF (A) DRIVER'S HELPER
AND OF (A) LOADER;" THAT, WITH RESPECT TO THEM, THE INTERSTATE COMMERCE
COMMISSION HAD POWER TO ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF
SERVICE PURSUANT TO SEC. 204 OF THE MOTOR CARRIER ACT, 1935, AND THAT,
BY VIRTUE OF SEC. 13(B)(1) OF THE FAIR LABOR STANDARDS ACT,  FN4  SEC.
7 OF THAT ACT DID NOT APPLY TO THE SERVICES OF THE RESPONDENTS.  THE
CASE WAS SUBMITTED TO THE COURT UPON AN AGREED STATEMENT OF FACTS. 
FN5 

ON NOVEMBER 29, 1943, THE DISTRICT COURT RENDERED AN OPINION IN WHICH
IT DECLINED TO DETERMINE THE STATUS OF THE RESPONDENTS BUT HELD THE
CASE "OPEN FOR FURTHER ACTION" IN ORDER TO GIVE THE RESPONDENTS AN
OPPORTUNITY TO PRESENT THAT QUESTION TO THE INTERSTATE COMMERCE
COMMISSION.  54 F.SUPP.  565, 569.  PURSUANT TO RESPONDENTS' STATEMENT
THAT THEY WOULD NOT SO APPLY TO THE COMMISSION AND PURSUANT TO THEIR
MOTION REQUESTING A FINAL DISPOSITION OF THE CASE, THE COURT, ON
FEBRUARY 14, 1945, DISMISSED THE COMPLAINT "WITHOUT PREJUDICE."  FN6
59 F.SUPP.  341.  AFTER CONSIDERABLE DELAY IN THE FILING OF THE RECORD
ON APPEAL, THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT AFFIRMED
THE JUDGMENT OF DISMISSAL AS TO THE RESPONDENT SHAPIRO ON THE GROUND
THAT "HE IS A 'HELPER' WITHIN THE COMMISSION'S RULING IN 28 M.C.C. AT
PAGES 135, 136."  152 F.2D 619, 622.  AS TO THE OTHER RESPONDENTS, IT
REVERSED THE JUDGMENT WITH COSTS AND REMANDED THE CAUSE "FOR ENTRY OF
JUDGMENT IN THEIR FAVOR AND FOR ALLOWANCE OF AN ATTORNEY'S FEE."  ID.
AT 622.  THE JUDGMENT AS TO SHAPIRO HAS NOT BEEN QUESTIONED AND IS NOT
BEFORE US. 

BECAUSE OF ITS IMPORTANCE IN THE INTERPRETATION OF THE MOTOR CARRIER
ACT AND THE FAIR LABOR STANDARDS ACT, WE GRANTED CERTIORARI, 327 U.S.
774, AND THE CASE WAS ARGUED IMMEDIATELY FOLLOWING THE LEVINSON CASE. 
A BRIEF ON BEHALF OF THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION,
UNITED STATES DEPARTMENT OF LABOR, AS AMICUS CURIAE, WAS FILED JOINTLY
IN THIS CASE AND IN THE LEVINSON CASE, SUPPORTING THE POSITION OF THE
RESPONDENTS.  FN7

                I. 

NOTICE OF APPEAL, DATED MARCH 29, 1945, WAS FILED BY THE RESPONDENTS
IN THE DISTRICT COURT APRIL 2, 1945.  IN SPITE OF THE APPLICABLE
PROVISIONS OF RULE 73(G) OF THE FEDERAL RULES OF CIVIL PROCEDURE,  FN8
RESPONDENTS SOUGHT FROM THE DISTRICT COURT NO EXTENSION OF TIME WITHIN
WHICH TO DOCKET THEIR APPEAL OR FILE A TRANSCRIPT OF THE RECORD.  ON
JULY 20, 1945, MORE THAN 90 DAYS FROM THE DATE OF THE FIRST NOTICE OF
APPEAL, RESPONDENTS, PURSUANT TO MOTION SUPPORTED BY AFFIDAVIT, SECURED
FROM CIRCUIT JUDGE AUGUSTUS N. HAND AN ORDER EXTENDING TO SEPTEMBER 1,
1945, THE TIME WITHIN WHICH TO SERVE AND FILE THEIR RECORD ON APPEAL. 
ON THAT DATE, THE TRANSCRIPT OF RECORD WAS FILED.  THE PETITIONER
PROMPTLY MOVED TO DISMISS THE APPEAL UNDER RULE 73(A) OF THE FEDERAL
RULES OF CIVIL PROCEDURE N9, QUESTIONING ESPECIALLY THE RIGHT OF A
SINGLE MEMBER OF THAT COURT TO MAKE THE ORDER OF JULY 20.  THIS MOTION
WAS DENIED OCTOBER 10, 1945, CIRCUIT JUDGES LEARNED HAND, SWAN AND
CLARK SPEAKING FOR THE COURT.  THE MOTION WAS RENEWED AT THE HEARING ON
THE MERITS OF THE APPEAL AND, ON DECEMBER 28, 1945, WAS DENIED AGAIN,
CIRCUIT JUDGES LEARNED HAND, SWAN AND FRANK SPEAKING FOR THE COURT. 
152 F.2D 619.  THE ISSUE WAS RAISED PROPERLY AND FULLY PRESENTED HERE. 

THE AUTHORITY OF A JUDGE OF THE CIRCUIT COURT OF APPEALS FOR THE
SECOND CIRCUIT TO EXTEND THE TIME FOR FILING THE RECORD ON APPEAL
APPEARS TO BE SUPPORTED BY RULE 15 OF THAT COURT.  FN10  THAT RULE,
HOWEVER, WAS NOT DISCUSSED BY COUNSEL AND WE SUSTAIN THE ACTION TAKEN
BY THE CIRCUIT COURT OF APPEALS UNDER AUTHORITY OF RULE 73(A), EVEN
WITHOUT REFERENCE TO ITS OWN RULE 15. 

THE PRINCIPAL ARGUMENT AGAINST THE FINAL ACTION OF THE CIRCUIT COURT
OF APPEALS ON THIS MOTION IS BASED UPON THE FOLLOWING STATEMENT IN THAT
COURT'S OPINION:  "IN THE CASE AT BAR THERE WAS NO ABUSE OF DISCRETION
IN EXTENDING THE TIME, DESPITE THE SOMEWHAT FEEBLE EXCUSES FOR DELAY,
SINCE THE APPEAL PRESENTS A SUBSTANTIAL QUESTION AS TO THE CORRECTNESS
OF THE JUDGMENT."  152 F.2D 2D 619, 621.  IT IS URGED THAT THIS SHOWS
THAT THE COURT BASED ITS REFUSAL TO DISMISS THE APPEAL ON THE
SUBSTANTIALITY OF THE QUESTION TO BE PRESENTED ON THE MERITS OF THE
APPEAL, RATHER THAN ON THE SUBSTANTIALITY OF THE EXCUSES FOR THE DELAY
IN FILING THE RECORD. 

WE INTERPRET THE STATEMENT AS NO MORE THAN A RECOGNITION BY THE COURT
THAT THE SUBSTANTIALITY OF THE QUESTION TO BE AT ISSUE ON THE MERITS OF
THE APPEAL WAS A MATTER APPROPRIATE FOR ITS CONSIDERATION UNDER RULE
73(A), IN CONNECTION WITH ALL THE OTHER CIRCUMSTANCES BEFORE IT.  RULE
73(A) IS INTENDED TO PLACE RELIANCE UPON THE SOUND DISCRETION OF THE
CIRCUIT COURT OF APPEALS.  WE SEE NO REASON TO QUESTION THE DISCRETION
EXERCISED IN THIS CASE AS EVIDENCED BY THE AGREEMENT OF ALL OF THE FIVE
CIRCUIT JUDGES TO WHOM THE ISSUE WAS PRESENTED.  AINSWORTH V. GILL
GLASS & FIXTURE CO., 104 F.2D 83; MUTUAL BENEFIT HEALTH & ACCIDENT
ASSN. V. SNYDER, 109 F.2D 469; BURKE V. CANFIELD, 72 APP. D.C. 127, 111
F.2D 526; UNITED STATES V. GALLAGHER, 151 F.2D 556. 

ACCORDINGLY, WE SUSTAIN THE DENIAL OF THE MOTION TO DISMISS THE
APPEAL UNDER RULE 73(A). 

                                 II. 

ON THE MERITS, THE QUESTION IS WHETHER OR NOT THE CIRCUIT COURT OF
APPEALS WAS JUSTIFIED IN REMANDING THIS CASE WITH INSTRUCTIONS TO ENTER
A JUDGMENT UNDER THE FAIR LABOR STANDARDS ACT IN FAVOR OF ALL OF THE
RESPONDENTS EXCEPT SHAPIRO.  WE HOLD THAT THE CAUSE SHOULD BE REMANDED
BUT THAT THE ORDER OF REMAND SHOULD BE MODIFIED.  THIS CASE WAS TRIED,
WITHOUT A JURY, ENTIRELY UPON AN AGREED STATEMENT OF FACTS AND A PRE
TRIAL AGREEMENT BETWEEN THE PARTIES, APPROVED BY THE DISTRICT COURT,
SETTLING THE ISSUES TO BE DETERMINED.  FOR THE SAKE OF CLARITY, WE HAVE
PROCEEDED ON THE SAME BASIS AND HAVE TREATED THE CASE AS THOUGH, UPON
REMAND OF IT TO THE DISTRICT COURT, THAT COURT WILL PROCEED UPON THE
SAME RECORD.  THIS, HOWEVER, SHOULD NOT BE INTERPRETED AS NECESSARILY
RESTRICTING THAT COURT TO THAT RECORD IF, FOR GOOD CAUSE, THAT COURT
SHOULD FIND IT ADVISABLE TO RETRY THE CASE DE NOVO.  FN11 

UNDER THE AGREED STATEMENT THERE WAS NO QUESTION BUT THAT THE FAIR
LABOR STANDARDS ACT APPLIED TO EACH RESPONDENT PROVIDED ONLY THAT HE
WAS NOT FOUND TO HAVE BEEN EXCLUDED FROM THE OVERTIME PAY REQUIREMENTS
OF THAT ACT BY SEC. 13(B)(1) BECAUSE OF BEING AN "EMPLOYEE WITH RESPECT
TO WHOM THE INTERSTATE COMMERCE COMMISSION HAS POWER TO ESTABLISH
QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE PURSUANT TO THE PROVISIONS
OF SECTION 204 OF THE MOTOR CARRIER ACT, 1935; .."  552 STAT. 1068, 29
U.S.C. SEC. 213(B)(1).  THERE THUS WILL REMAIN TO BE DETERMINED BY THE
DISTRICT COURT THE QUESTION WHETHER THE ACTIVITIES OF THE RESPECTIVE
RESPONDENTS CONSISTED, EITHER WHOLLY OR IN SUBSTANTIAL PART, OF THE
CLASS OF WORK WHICH IS DEFINED BY THE INTERSTATE COMMERCE COMMISSION IN
EX PARTE NO. MC-2, 28 M.C.C. 125, 133-134, AS THAT OF A "LOADER," AND
AS AFFECTING THE SAFETY OF OPERATION OF MOTOR VEHICLES IN INTERSTATE OR
FOREIGN COMMERCE.  FN12 

IT WILL REMAIN FOR THE DISTRICT COURT TO APPLY THE FACTS FOUND BY IT
AS TO THE ACTIVITIES OF THE RESPECTIVE RESPONDENTS TO THE
CLASSIFICATIONS OF WORK THAT HAVE BEEN MADE BY THE INTERSTATE COMMERCE
COMMISSION, DEFINING WHAT COMES WITHIN THE JURISDICTION OF THE
COMMISSION UNDER SEC. 204 OF THE MOTOR CARRIER ACT.  THE COMMISSION HAS
DEFINED ITS JURISDICTION, BOTH AFFIRMATIVELY AND NEGATIVELY, AS
FOLLOWS: 

"..  WEE HAVE POWER, UNDER SECTION 204(A) OF SAID PART II, TO
ESTABLISH QUALIFICATIONS AND MAXIMUM HOURS OF SERVICE FOR THE CLASSES
OF EMPLOYEES COVERED BY FINDINGS OF FACT NUMBERED 1, 2, AND 3 ABOVE
(MECHANICS, LOADERS AND HELPERS), AND  ..  WEE HAVE NO SUCH POWER OVER
ANY OTHER CLASSES OF EMPLOYEES, EXCEPT DRIVERS."  EX PARTE NO. MC-2, 28
M.C.C. 125, 139.  FN13 

UNDER THESE CIRCUMSTANCES, THERE IS NO OCCASION FOR US TO REFER TO
THE COMMISSION ANY QUESTION PRESENTED IN THIS CASE NOR TO SUSPEND THE
LONG-DELAYED FINAL JUDGMENT PENDING FURTHER FINDINGS BY THE
COMMISSION.  THE COMMISSION HAS DONE ITS WORK.  THE DISTRICT COURT MUST
DETERMINE SIMPLY WHETHER OR NOT THE RESPECTIVE EMPLOYEES WHO SEEK TO
RECOVER OVERTIME COMPENSATION UNDER SEC. 7 ARE EXCLUDED FROM THE
BENEFITS OF THAT SECTION BECAUSE THEY ARE WITHIN THE ABOVE
CLASSIFICATION.  THE SPECIAL KNOWLEDGE AND EXPERIENCE REQUIRED TO
DETERMINE WHAT CLASSIFICATIONS OF WORK AFFECT SAFETY OF OPERATION OF
INTERSTATE MOTOR CARRIERS HAVE BEEN APPLIED BY THE COMMISSION.  WHETHER
OR NOT AN INDIVIDUAL EMPLOYEE IS WITHIN ANY SUCH CLASSIFICATION IS TO
BE DETERMINED BY JUDICIAL PROCESS. 

THE DISTRICT COURT, IN APPLYING SEC. 204 OF THE MOTOR CARRIER ACT TO
RESPONDENTS, WILL DETERMINE WHETHER OR NOT THE ACTIVITIES OF EACH
RESPONDENT, EITHER AS A WHOLE OR IN SUBSTANTIAL PART, COME WITHIN THE
COMMISSION'S DEFINITION OF THE WORK OF A "LOADER."  IN DETERMINING
WHETHER THE ACTIVITIES, OR ANY SUBSTANTIAL PART OF THE ACTIVITIES, OF
AN INDIVIDUAL COME WITHIN THOSE OF SUCH A "LOADER," THE DISTRICT COURT
SHALL NOT BE CONCLUDED BY THE NAME WHICH MAY HAVE BEEN GIVEN TO HIS
POSITION OR TO THE WORK THAT HE DOES, NOR SHALL THE DISTRICT COURT BE
REQUIRED TO FIND THAT ANY SPECIFIC PART OF HIS TIME IN ANY GIVEN WEEK
MUST HAVE BEEN SPENT IN THOSE ACTIVITIES.  THE DISTRICT COURT SHALL
GIVE PARTICULAR ATTENTION TO WHETHER OR NOT THE ACTIVITIES OF THE
RESPECTIVE RESPONDENTS INCLUDED THAT KIND OF "LOADING" WHICH IS HELD BY
THE COMMISSION TO AFFECT SAFETY OF OPERATION.  IN CONTRAST TO THE
LOADING ACTIVITIES IN THE LEVINSON CASE, THE MERE HANDLING OF FREIGHT
AT A TERMINAL, BEFORE OR AFTER LOADING, OR EVEN THE PLACING OF CERTAIN
ARTICLES OF FREIGHT ON A MOTOR CARRIER TRUCK MAY FORM SO TRIVIAL,
CASUAL OR OCCASIONAL A PART OF AN EMPLOYEE'S ACTIVITIES, OR HIS
ACTIVITIES MAY RELATE ONLY TO SUCH ARTICLES OR TO SUCH LIMITED HANDLING
OF THEM, THAT HIS ACTIVITIES WILL NOT COME WITHIN THE KIND OF "LOADING"
WHICH IS DESCRIBED BY THE COMMISSION AND WHICH, IN ITS OPINION, AFFECTS
SAFETY OF OPERATION.  SEE ALSO, MCKEOWN V. SOUTHERN CALIFORNIA FREIGHT
FORWARDERS, 49 F.SUPP.  543.  EXCEPT INSOFAR AS THE COMMISSION HAS
FOUND THAT THE ACTIVITIES OF DRIVERS, MECHANICS, LOADERS AND HELPERS,
AS DEFINED BY IT, AFFECT SAFETY OF OPERATION, IT HAS DISCLAIMED ITS
POWER TO ESTABLISH QUALIFICATIONS OR MAXIMUM HOURS OF SERVICE UNDER
SEC. 204 OF THE MOTOR CARRIER ACT.    IF NONE OF THE ALLEGED "LOADING"
ACTIVITIES OF THE RESPECTIVE RESPONDENTS, DURING THE PERIODS AT ISSUE,
COME WITHIN THE KIND OF ACTIVITIES WHICH, ACCORDING TO THE COMMISSION,
AFFECT THE SAFETY OF OPERATION OF MOTOR VEHICLES IN INTERSTATE OR
FOREIGN COMMERCE WITHIN THE MEANING OF THE MOTOR CARRIER ACT, THEN
THOSE RESPONDENTS OF WHICH THAT IS TRUE ARE ENTITLED TO THE BENEFITS OF
SEC. 7 OF THE FAIR LABOR STANDARDS ACT.  ON THE OTHER HAND, IF THE
WHOLE OR A SUBSTANTIAL PART OF SUCH ALLEGED "LOADING" ACTIVITIES OF THE
RESPECTIVE RESPONDENTS, DURING THE PERIODS AT ISSUE, DOES COME WITHIN
THE KIND OF ACTIVITIES WHICH, ACCORDING TO THE COMMISSION, AFFECT SUCH
SAFETY OF OPERATION, THEN THOSE RESPONDENTS WHO WERE ENGAGED IN SUCH
ACTIVITIES ARE EXCLUDED FROM THE BENEFITS OF SUCH SEC. 7.  IF SOME, BUT
LESS THAN A SUBSTANTIAL PART, OF SUCH ACTIVITIES OF THE RESPECTIVE
RESPONDENTS, DURING SOME OR ALL OF THE PERIODS AT ISSUE, COME WITHIN
THE KIND OF ACTIVITIES WHICH, ACCORDING TO THE COMMISSION, AFFECT SUCH
SAFETY OF OPERATION, THEN THE RIGHT OF THOSE RESPONDENTS WHO WERE
ENGAGED IN SUCH ACTIVITIES TO RECEIVE THE BENEFITS OF SEC. 7 OF THE
FAIR LABOR STANDARDS ACT DOES NOT COME WITHIN THE PRECISE ISSUE
DETERMINED IN THE LEVINSON CASE AND THIS COURT RESERVES ITS DECISION AS
TO THE POWER OF THE COMMISSION TO ESTABLISH QUALIFICATIONS AND MAXIMUM
HOURS OF SERVICE WITH RESPECT TO THEM AND, CONSEQUENTLY, RESERVES ITS
DECISION AS TO THEIR RIGHT TO RECEIVE THE BENEFITS OF SEC. 7 OF THE
FAIR LABOR STANDARDS ACT. 

FOR THESE REASONS, THE JUDGMENT OF THE CIRCUIT COURT OF APPEALS IS
VACATED INSOFAR AS IT RELATES TO THE RESPONDENTS OTHER THAN SHAPIRO,
AND THE CAUSE IS REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  SEE LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 652, NOTE 2. 

FN2  SEE LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 653, NOTE 6. 

FN3  SEE LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 653, NOTE 5. 

FN4  SEE LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 653, NOTE 4. 

FN5  THIS INCLUDED THE FOLLOWING DESCRIPTION OF THE WORK OF THE
RESPONDENTS AS EMPLOYEES OF THE PETITIONER: 

"ITEM 3.  AS TO NORTHBOUND FREIGHT THE LOADED VEHICLES WOULD COME
INTO NEW YORK IN THE VERY EARLY MORNING HOURS TO THE WEST 11TH STREET
TERMINAL WHERE NEW DRIVERS TOOK CHARGE OF THE VEHICLES, AND WHAT WERE
CALLED DOWNTOWN HELPERS RODE ON THE VEHICLES WITH THE DRIVERS TO THE
38TH STREET TERMINAL.  AT SUCH TERMINAL THE DOORS OF THE TRUCKS WERE
OPENED IN THE MORNINGS, BOTH THE DRIVER AND DOWNTOWN HELPER REMAINING
ON THE VEHICLES.  AS THE DOWNTOWN HELPER PUSHED THE FREIGHT PACKAGES
OVER THE TAILBOARDS THEY WERE RECEIVED BY THE PLAINTIFFS (RESPONDENTS),
WHO THEN PLACED THE FREIGHT PACKAGES IN THE SUB-TERMINAL BUILDING. 
STILL LATER IN THE MORNINGS THE PLAINTIFFS (RESPONDENTS) THEN DELIVERED
THE PACKAGES TO VARIOUS CONSIGNEES IN THE GARMENT CENTER, GENERALLY
USING FOR THAT PURPOSE WHAT ARE CALLED HAND-TRUCKS OR FLAT TRUCKS,
USING THEIR OWN MANPOWER FOR PROPULSION. 

"DURING THOSE SAME DAYS OTHER NORTHBOUND TRUCKS AFTER FIRST STOPPING
AT THE WEST 11TH STREET MAIN TERMINAL TO CHANGE A DRIVER AND RECEIVE A
DOWNTOWN HELPER, BY-PASSED THE WEST 38TH STREET SUBTERMINAL AND PARKED
FIRST AT ONE PLACE AND THEN ANOTHER ALONGSIDE THE CURBS IN THE GARMENT
CENTER.  AT THOSE PLACES THE UNLOADING OPERATION WAS PERFORMED IN THE
SAME WAY AS AT THE SUB-TERMINAL HEREINABOVE DESCRIBED, AND THE
PLAINTIFFS (RESPONDENTS) THEN MADE THE DELIVERIES BY HAND OR BY HAND
TRUCKS INTO THE INSIDES OF THE GARMENT CENTER BUILDINGS. 

"ITEM 4.  IN THE LATE AFTERNOONS AND EARLY EVENINGS FREIGHT
ORIGINATING WITH VARIOUS CONSIGNORS AT VARIOUS LOCATIONS IN THE GARMENT
CENTER WAS 'PICKED UP' FOR INTENDED DELIVERY THE NEXT MORNING IN
PHILADELPHIA OR ELSEWHERE SOUTH OF NEW YORK.  AS TO THESE SOUTHBOUND
OPERATIONS THE FACTS WERE THESE:  SOME OF THE FREIGHT PACKAGES WOULD BE
PICKED UP BY THE PLAINTIFFS (RESPONDENTS) AT THE CONSIGNOR'S PLACES OF
BUSINESS IN THE GARMENT CENTER AND HAND-TRUCKED BY THEM TO THE WEST
38TH STREET SUB-TERMINAL.  AT THAT PLACE THE PLAINTIFFS (RESPONDENTS)
THEMSELVES DID, IN DUE COURSE, PHYSICALLY LOAD THE FREIGHT PACKAGES
INTO A WAITING TRUCK WHICH, WHEN LOADED, TOOK UP THIS JOURNEY FIRST TO
THE WEST 11TH STREET MAIN TERMINAL, AND THEN WITH A NEW DRIVER WENT ON
TO THE DESTINATIONS SOUTH OF NEW YORK.  A DOWNTOWN EMPLOYEE OTHER THAN
THE PLAINTIFFS (RESPONDENTS) WOULD ALSO AT THE SAME TIME SO LOAD THE
VEHICLES. 

"OTHER TRUCKS FOR SOUTHBOUND LOADINGS TOOK THEIR STATIONS ON THE
PUBLIC STREETS IN THE GARMENT CENTER WHERE THE PLAINTIFFS (RESPONDENTS)
BROUGHT THE PACKAGES BY HAND OR BY HAND TRUCK.  THE PART WHICH THE
PLAINTIFFS (RESPONDENTS) TOOK IN SUCH LOADING CONSISTED OF THE LIFTING
OF THE PACKAGES ON TO THE TAILBOARDS OF THE TRUCKS, AND VERY OFTEN WHEN
THE WEIGHTS OR SIZE OF THE PACKAGES SO REQUIRED THEY WOULD STAND INSIDE
THE TRUCK BODIES AND, TOGETHER WITH THE DOWNTOWN EMPLOYEE, STACK AND
PILE THE FREIGHT IN THE VEHICLE. 

"ITEM 5.  AS TO ALL THE PLAINTIFFS (RESPONDENTS) OTHER THAN SHAPIRO
THEY GENERALLY WALKED BETWEEN STOPPING POINTS BUT OCCASIONALLY RODE
UPON THE TRUCKS WHEN THE TRUCKS MOVED FROM ONE PLACE TO ANOTHER IN THE
GARMENT CENTER, THEREBY AVOIDING LOSS OF TIME BY WALKING.  AS TO THE
PLAINTIFF SHAPIRO, HE REGULARLY AND AS A MATTER OF FIXED DUTY, BETWEEN
AUGUST 1939 AND SEPTEMBER 1, 1941, RODE ON THE TRUCK BETWEEN FOUR AND
FIVE HOURS DAILY.  ON THE TRUCK AT THE SAME TIME WAS THE DRIVER AND A
HELPER FROM THE DOWNTOWN TERMINAL.  IN ADDITION THERETO THE PLAINTIFF
SHAPIRO DEVOTED THREE AND A HALF HOURS EACH DAY TO INSIDE OFFICE WORK
AT THE 38TH STREET SUB-TERMINAL." 

FN6  THE ORDER OF DISMISSAL APPEARING IN THE RECORD WAS AS FOLLOWS: 

"ORDERED THAT THE COMPLAINT BE AND THE SAME HEREBY IS DISMISSED AND
THAT JUDGMENT BE ENTERED ABATING AND DISMISSING SAID ACTION, WITHOUT
PREJUDICE TO THE RIGHTS OF PLAINTIFFS (RESPONDENTS), OR ANY ONE OF
THEM, TO BRING OTHER ACTIONS OR PROCEEDINGS FOR THE ESTABLISHMENT OF
THEIR RESPECTIVE CLAIMS, EITHER ADMINISTRATIVELY OR AT AN APPROPRIATE
TIME, BY ACTION IN THIS COURT OR OTHER PROPER TRIBUNAL." 

FN7  SEE ALSO, WALLING V. COMET CARRIERS, 57 F.SUPP.  1018, 151 F.2D
107, 109; CERT. GRANTED, 326 U.S. 716; WRIT OF CERTIORARI DISMISSED ON
MOTION OF COUNSEL FOR PETITIONER COMET CARRIERS, 328 U.S. 819.  THAT
CASE, ALSO IN THE SECOND CIRCUIT, RELATED TO "FOUR MOTOR TRUCK DRIVERS,
FOUR DRIVERS' HELPERS AND TWO HAND TRUCKERS OR PUSHERS" EMPLOYED BY
COMET CARRIERS IN THE TRANSPORTATION OF GOODS BETWEEN MANUFACTURERS AND
CONTRACTORS MOSTLY ON INTRASTATE TRIPS WITHIN OR NEAR THE NEW YORK CITY
GARMENT CENTER.  AS TO THE HAND TRUCKERS OR PUSHERS, THE DISTRICT COURT
SAID:  "THEY ARE NOT EMPLOYED ON MOTOR VEHICLES NOR DO THEIR FUNCTIONS
AS EMPLOYEES AFFECT OR RELATE TO THE SAFETY OF OPERATION OF THE MOTOR
VEHICLES IN INTERSTATE COMMERCE."  57 F.SUPP.  1018, 1023.  THE CIRCUIT
COURT OF APPEALS DISCUSSED ONLY THE DRIVERS AND DRIVERS' HELPERS.  AS
TO THEM IT SAID: 

"PROOF THAT TWO EMPLOYEES WORKED ONLY THREE HOURS A WEEK IN
INTERSTATE TRANSPORTATION AND THAT TWO EMPLOYEES MADE 'SOME' AND
'OCCASIONAL' DELIVERIES TO THE WAREHOUSES OF CHAIN STORES AND WORKED
THE REMAINING TIME IN THE PRODUCTION OF GOODS FOR COMMERCE DOES NOT
SATISFY THE REQUIREMENT THAT THE AMOUNT OF TIME DURING WHICH THEY ARE
ENGAGED IN INTERSTATE COMMERCE BE SUBSTANTIAL."  151 F.2D 107, 111. 

FN8  "RULE 73.  APPEAL TO A CIRCUIT COURT OF APPEALS. 

     . .         .         .         . 

"(G)  DOCKETING AND RECORD ON APPEAL.  THE RECORD ON APPEAL AS
PROVIDED FOR IN RULES 75 AND 76 SHALL BE FILED WITH THE APPELLATE COURT
AND THE ACTION THERE DOCKETED WITHIN 40 DAYS FROM THE DATE OF THE
NOTICE OF APPEAL; EXCEPT THAT, WHEN MORE THAN ONE APPEAL IS TAKEN FROM
THE SAME JUDGMENT TO THE SAME APPELLATE COURT, THE DISTRICT COURT MAY
PRESCRIBE THE TIME FOR FILING AND DOCKETING, WHICH IN NO EVENT SHALL BE
LESS THAN 40 DAYS FROM THE DATE OF THE FIRST NOTICE OF APPEAL.  IN ALL
CASES THE DISTRICT COURT IN ITS DISCRETION AND WITH OR WITHOUT MOTION
OR NOTICE MAY EXTEND THE TIME FOR FILING THE RECORD ON APPEAL AND
DOCKETING THE ACTION, IF ITS ORDER FOR EXTENSION IS MADE BEFORE THE
EXPIRATION OF THE PERIOD FOR FILING AND DOCKETING AS ORIGINALLY
PRESCRIBED OR AS EXTENDED BY A PREVIOUS ORDER; BUT THE DISTRICT COURT
SHALL NOT EXTEND THE TIME TO A DAY MORE THAN 90 DAYS FROM THE DATE OF
THE FIRST NOTICE OF APPEAL."  308 U.S. 752, 28 U.S.C. FOLLOWING SEC.
723(C). 

FN9  "RULE 73.  APPEAL TO A CIRCUIT COURT OF APPEALS. 

"(A)  HOW TAKEN.  WHEN AN APPEAL IS PERMITTED BY LAW FROM A DISTRICT
COURT TO A CIRCUIT COURT OF APPEALS AND WITHIN THE TIME PRESCRIBED, A
PARTY MAY APPEAL FROM A JUDGMENT BY FILING WITH THE DISTRICT COURT A
NOTICE OF APPEAL.  FAILURE OF THE APPELLANT TO TAKE ANY OF THE FURTHER
STEPS TO SECURE THE REVIEW OF THE JUDGMENT APPEALED FROM DOES NOT
AFFECT THE VALIDITY OF THE APPEAL, BUT IS GROUND ONLY FOR SUCH REMEDIES
AS ARE SPECIFIED IN THIS RULE OR, WHEN NO REMEDY IS SPECIFIED, FOR SUCH
ACTION AS THE APPELLATE COURT DEEMS APPROPRIATE, WHICH MAY INCLUDE
DISMISSAL OF THE APPEAL."  308 U.S. 749, 28 U.S.C. FOLLOWING SEC.
723(C). 

FN10  RULE 15, U.S.C.C.A., SECOND CIRCUIT. 

          "DOCKETING CASES. 

"1.  IN AN APPEAL IN A CIVIL ACTION THE APPELLANT SHALL DOCKET THE
ACTION AND FILE THE RECORD IN THIS COURT WITHIN FORTY DAYS AFTER FILING
THE NOTICE OF APPEAL WITH THE DISTRICT COURT, OR WITHIN ANY ADDED TIME
GRANTED BY THE DISTRICT JUDGE WITHIN FORTY DAYS AFTER THE FILING OF THE
NOTICE OF APPEAL, BUT IN NO CASE LATER THAN NINETY DAYS AFTER SUCH
FILING (RULE 73(G))...  IIF THE RECORD IS NOT PRESENTED TO THE CLERK
FOR FILING WITHIN THE PERIODS ABOVE PROVIDED, HE SHALL REFUSE TO ACCEPT
IT UNLESS THIS COURT SO ORDERS, OR A JUDGE THEREOF IF THE COURT IS NOT
SITTING. 

"2.  THIS COURT WILL NOT HEAR AND GRANT MOTIONS FOR FILING AND
DOCKETING APPEALS, OTHERWISE PROPERLY TAKEN, AT TIMES OTHER THAN AS
STATED IN SUBDIVISION 1 HEREOF, EXCEPT UPON A SHOWING BY AFFIDAVITS, OR
OTHERWISE AS THE COURT MAY ORDER, (A) THAT THE DELAY HAS BEEN DUE TO
CAUSE BEYOND THE CONTROL OF THE MOVING PARTY OR (B) THAT THE DELAY HAS
BEEN DUE TO CIRCUMSTANCES WHICH SHALL BE DEEMED TO BE MERELY EXCUSABLE
NEGLECT ON THE PART OF THE MOVING PARTY AND THERE IS A SUBSTANTIAL
QUESTION TO BE PRESENTED ON APPEAL AND (C) IN ALL CASES WHERE THE
DISTRICT COURT HAS POWER TO ACT, THAT AN EXTENSION OF TIME HAS BEEN
DENIED BY THAT COURT, TOGETHER WITH THE GROUNDS FOR SUCH DENIAL, IF ANY
ARE STATED. 

"3.  IF THE APPELLANT SHALL HAVE FAILED TO COMPLY WITH THIS RULE, ANY
APPELLEE MAY EITHER DOCKET THE ACTION AND FILE THE RECORD IN THIS
COURT, IN WHICH EVENT IT SHALL STAND FOR ARGUMENT, OR MAY HAVE THE
ACTION DOCKETED AND DISMISSED BY THE CLERK OF THIS COURT UPON PRODUCING
A CERTIFICATE FROM THE CLERK OF THE COURT WHEREIN THE JUDGMENT OR
DECREE WAS RENDERED, CERTIFYING THAT SUCH APPEAL HAS BEEN DULY TAKEN OR
ALLOWED, AND PROOF THAT FOUR DAYS' NOTICE IN WRITING HAS BEEN SERVED ON
THE APPELLANT OR HIS ATTORNEY THAT APPLICATION WILL BE MADE TO THE
CLERK OF THIS COURT FOR SUCH DISMISSAL.  NO ACTION DISMISSED UNDER THIS
RULE SHALL BE REINSTATED EXCEPT IN THE DISCRETION OF THE COURT AND UPON
A SHOWING SIMILAR TO THAT REQUIRED UNDER SUBDIVISION 2 HEREOF."  11
U.S. SUP. CT. REP. DIGEST, L. ED., SUPP. NO. 4, P. 55. 

FN11  THE DISTRICT COURT, IN ITS ORDER OF FEBRUARY 14, 1945,
DESCRIBED THE BASIS ON WHICH THE CASE HAD BEEN TRIED AS FOLLOWS: 

"..  ONN THE 3RD DAY OF MAY, 1943, AND THE PARTIES HERETO HAVING DULY
APPEARED BY THEIR RESPECTIVE ATTORNEYS, AND SUBMITTED TO THE COURT, IN
LIEU OF THE OFFERING OF PROOF, AN AGREED STATEMENT OF FACTS SETTING
FORTH THE ISSUES FRAMED BY THE COMPLAINT, AND THE COURT, UPON THE
CONSENT OF THE ATTORNEYS FOR THE RESPECTIVE PARTIES, HAVING THEREUPON
MADE AND ENTERED AN ORDER HEREIN ON THE SAID 3RD DAY OF MAY, 1943,
WHEREIN AND WHEREBY THE SAID AGREED STATEMENT OF FACTS WHICH WERE
SUBMITTED BY THE ATTORNEYS FOR THE RESPECTIVE PARTIES, AS AFORESAID,
WAS SET FORTH AS THE ISSUES FRAMED BY THE COMPLAINT AND ANSWER, AND THE
SAID ACTION HAVING BEEN SUBMITTED TO THE COURT FOR ITS DETERMINATION
UPON THE SAID AGREED STATEMENT OF FACTS AND ORDER HEREINBEFORE
MENTIONED AND REFERRED TO,  .." 


FN12  SEE LEVINSON V. SPECTOR MOTOR SERVICE, ANTE, P. 652, NOTE 2. 

FN13  THE FINDINGS OF FACT REFERRED TO BY THE COMMISSION, INSOFAR AS
THEY RELATE TO LOADERS, ARE THOSE QUOTED IN THE TEXT OF LEVINSON V.
SPECTOR MOTOR SERVICE, ANTE, P. 669, AT NOTE 17.



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