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.
330 U. S.
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 § 204(a) of
the Motor Carrier Act to establish qualifications and maximum hours
of service, certain employees of an interstate motor carrier sued
under § 16(b) of the Fair Labor Standards Act for overtime
compensation under § 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 § 13(b)(1) of the Fair
Labor Standards Act from the benefits of § 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.
330 U. S.
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.
330 U. S. 649, and
the following principles:
(a) In applying § 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.
330 U. S.
707.
Page 330 U. S. 696
(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.
330 U. S.
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.
330 U. S.
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.
330 U. S.
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 § 7 of the Fair Labor Standards Act. P.
330 U. S.
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 § 7 of the Fair Labor Standards Act.
P.
330 U. S.
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
§ 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.
330 U. S. 649. Pp.
330 U. S.
708-709.
152 F.2d 619, judgment vacated in part and cause remanded.
In a suit brought by certain employees of an interstate motor
carrier under § 16(b) of the Fair Labor Standards Act for overtime
compensation under § 7, a District Court declined to determine
plaintiffs' status under § 13(b)(1)
Page 330 U. S. 697
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.
330 U. S. 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, 152
F.2d 619, 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
Page 330 U. S. 698
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. [
Footnote 1]
This action was begun in 1942 in the City Court of the City of
New York, pursuant to § 16(b) of the Fair Labor Standards Act.
[
Footnote 2] 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 § 7 of
the Fair Labor Standards Act, [Footnote 3] 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, 59 F. Supp. 341. 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 § 204 of
the Motor Carrier Act, 1935, and that, by virtue of
Page 330 U. S.
699
§ 13(b)(1) of the Fair Labor Standards Act, [Footnote 4] § 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. [Footnote 5]
On November 29, 1943, the District Court rendered an opinion in
which it declined to determine the status of
Page 330 U. S. 700
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." [
Footnote 6] 59 F. Supp. 341. After
considerable delay in the filing of the record on
Page 330 U. S. 701
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 pp. 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." 152 F.2d 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. [
Footnote
7]
Page 330 U. S. 702
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, [
Footnote 8]
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, [
Footnote 9] questioning especially the
right of a single member
Page 330 U. S. 703
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. [
Footnote 10] That Rule, however, was not
discussed
Page 330 U. S. 704
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."
(Italics supplied.) 152 F.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
Page 330 U. S. 705
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 represented.
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 pretrial 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. [
Footnote 11]
Page 330 U. S. 706
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 § 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. . . ."
52 Stat. 1068, 29 U.S.C. § 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. [
Footnote 12]
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 § 204 of the Motor Carrier Act. The Commission
has defined its jurisdiction, both affirmatively and negatively, as
follows:
". . . we 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,
Page 330 U. S. 707
loaders and helpers], and . . . we have no such power over any
other classes of employees, except drivers."
Ex parte No. MC-2, 28 M.C.C. 125, 139. [
Footnote 13]
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 § 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.
The determination whether or not an individual employee is within
any such classification is to be determined by judicial
process.
The District Court, in applying § 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
Page 330 U. S. 708
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 § 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 § 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, do come within
the kind of activities which, according to the Commission, affect
such safety of operation, then those respondents who are engaged in
such activities are excluded from the benefits of such § 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,
Page 330 U. S. 709
then the right of those respondents who were engaged in such
activities to receive the benefits of § 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
§ 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.
[
Footnote 1]
See Levinson v. Spector Motor Service ante, p.
330 U. S. 652,
note 2.
[
Footnote 2]
See Levinson v. Spector Motor Service ante, p.
330 U. S. 653,
note 6.
[
Footnote 3]
See Levinson v. Spector Motor Service ante, p.
330 U. S. 653,
note 5.
[
Footnote 4]
See Levinson v. Spector Motor Service ante, p.
330 U. S. 653,
note 4.
[
Footnote 5]
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 subterminal 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, bypassed 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
south-bound 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 south-bound loadings took their stations
on the public streets in the Garment Center where the plaintiff's
[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."
(Italics supplied.)
[
Footnote 6]
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."
[
Footnote 7]
See also Walling v. Comet Carriers, 57 F. Supp. 1018;
151 F.2d 107, 109,
certiorari 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.
[
Footnote 8]
"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 § 723(c).
[
Footnote 9]
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 § 723(c).
[
Footnote 10]
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]). . . .
If 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."
(Italics supplied.) 11 U.S.Sup.Ct.Rep.Digest, L.Ed., Supp. No.
4, p. 55.
[
Footnote 11]
The District Court, in its order of February 14, 1945, described
the basis on which the case had been tried as follows:
". . . on 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. . . ."
[
Footnote 12]
See Levinson v. Spector Motor Service, note 2
[
Footnote 13]
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,
330 U. S. 669,
at note 17.