Blakeley v. Fresno Oil Co.

• Decision Date: 06 February 1948
• Docket Number: No. 14913.,14913.
• Citation: 208 S.W.2d 902
• Parties: BLAKELEY v. FRESNO OIL CO., Inc.
• Court: Texas Court of Appeals

208 S.W.2d 902

BLAKELEY v. FRESNO OIL CO., Inc.

No. 14913.

Court of Civil Appeals of Texas. Fort Worth.

February 6, 1948.

Appeal from District Court, Wichita County; H. W. Fillmore, Judge.

Action by J. Y. Blakeley against Fresno Oil Company, Incorporated to recover alleged unpaid overtime, penalties and attorney's fees under Fair Labor Standards Act. Judgment for defendant and plaintiff appeals.

Affirmed.

Britain & Connell, of Wichita Falls, for appellant.

Nelson, Montgomery & Robertson and Gordon Stokes, all of Wichita Falls, for appellee.

SPEER, Justice.

This is a suit by plaintiff, J. Y. Blakeley, against the defendant, Fresno Oil Company, Inc., to recover for alleged unpaid overtime worked by plaintiff for defendant between December 2, 1945 and March 14, 1947, and penalties and attorney's fees under the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201 to 219.

The parties will bear the same designation here as they bore in the trial court.

In so far as is necessary for a proper understanding of the situation before us, we need only to refer briefly to the pleadings. The petition alleges that plaintiff was employed by Mr. Ryan, the superintendent of defendant, as a pumper of twelve "stripper" oil wells on the defendant's five leases in Wichita County, which leases were not contiguous to each other; he lived in a house belonging to defendant on one of the leases and that one lease was approximately two miles from where he lived and another was 5½ miles; that plaintiff was to receive eighty-three and three-fourths cents per hour for a 40 hour week's work and that under the provisions of the Labor Act above cited he was to receive time and a half for all overtime worked each week; that during the 67 weeks covered by his employment he was paid for the 40 hours per week and 2 hours overtime, or 42 hours for each of the 67 weeks. That at the time he was employed he was given a time book and instructed to not report more than 42 hours, including 2 hours overtime in any one week, and he further alleged that he made such reports and was paid therefor but that in fact he worked many hours overtime, more than he reported and at innumerable times he reported said additional overtime to defendant but payment for such additional overtime was as often refused by defendant. The petition set out in detail the whole number of hours worked each week, giving credit for the number of hours paid, and indicating a certain number of hours overtime each week, and alleged that said overtime for which he had not been paid amounted to 1,218 hours. His prayer was for payment of time and a half for the 1,218 hours overtime, an equal amount as liquidated damages, and for reasonable attorney's fees; each of the three amounts claimed was designated.

Defendant answered by general denial and specially that full payment had been made for all time worked by plaintiff and further that the overtime claimed by plaintiff embraced time consumed by plaintiff in going from his home to the place where his daily work began, his return home for lunch, as well also time consumed in going from his home back to the place where he was to work, and the time consumed in returning from his place of work to his home.

At the conclusion of plaintiff's testimony, as well also at the conclusion of all testimony, defendant moved for an instructed verdict. The grounds for each of these motions for requested verdict will be noted later. Both motions were overruled.

The court submitted special issues to a jury and upon these issues the jury returned its verdict.

Plaintiff moved for judgment on the verdict and prior to any action being taken thereon by the court defendant filed its motion for judgment non obstante veredicto. Plaintiff's motion for judgment on the verdict was overruled and after timely notice and hearing defendant's motion for judgment notwithstanding the verdict was sustained by the court and a take nothing judgment was entered against plaintiff. He has appealed.

Five points of error are presented for reversal. The assigned errors presented in the brief are lengthy and somewhat argumentative and we shall not attempt to quote them haec verba.

The first point complains because the court refused to enter judgment on the jury verdict and embraces plaintiff's reasons in support of the point, among which it is contended that issues of fact were raised by the testimony and further that the court having submitted such issues to the jury, it was bound by the answers and could not thereafter render judgment non obstante veredicto for defendant.

In the view we take of this appeal, we deem it unnecessary to set out the jury verdict. It is sufficient to say the verdict was in all respects favorable to plaintiff. We also note the jury found more hours of overtime than plaintiff claimed in his petition.

We cannot assent to one of the reasons urged by plaintiff as to why the trial court could not disregard the jury verdict after having submitted the special issues to the jury, he being bound by such verdict. Rule 301, Texas Rules of Civil Procedure, provides in effect that the judgment must conform to the pleadings and the verdict, etc., but further provides that "upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, * * *." We shall later discuss whether or not defendant's requested motion for an instructed verdict should have been sustained.

Points two to five, both inclusive, assert error in the acts of the trial court in disregarding the verdict and entering judgment non obstante veredicto. All points apparently go to substantially the same issues in this appeal and we shall not attempt to discuss them separately, nor to quote the points presented, nor the detailed reasons assigned in the motion for instructed verdict nor the motion for judgment non obstante verdicto.

The motion for an instructed verdict, urged at the close of the testimony, contained substantially all of the reasons later presented in the motion for judgment notwithstanding the verdict.

The latter motion asserted, among other things, that there was no evidence of probative value to raise a jury question on the controlling issues in this case, to wit: (a) That during the time of plaintiff's employment, defendant was engaged in interstate commerce, nor that the plaintiff was so engaged, nor that he was in the production of goods for commerce; (b) That the time claimed by plaintiff as overtime was not spent by him in productive work for defendant, but indisputably showed that such time was spent by him in going from his home to the place where his work was to begin for the day, in returning from the place of work to his home at lunch time, in returning from his home to the place of work after lunch and returning in the afternoon from the place of work to his home; and in addition to these things, in time consumed by him when he was not working for defendant but working for others with whom defendant had no connection.

It is deemed pertinent to first make some references to Title 29 U.S.C.A. §§ 201 to 219, the first section of which provides that the title shall be known as the "Fair Labor Standards Act of 1938." For brevity we shall refer to it as the "Act." Section 207(a) (1) of the Act provides: "No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce * * * for a workweek longer than forty-four hours during the first year from the effective date of this section," and for time and a half for all overtime. Section 203 defines "Commerce" as trade, etc., among the several states, meaning interstate commerce. See Barbe v. Cummins Const. Corporation, D.C., 49 F.Supp. 168, affirmed 4 Cir., 138 F. 2d 667.

The courts have held that the obvious purpose of the Act in requiring the employer to pay time and a half for all overtime worked by the employee achieved the dual purpose of inducing the employer to reduce the hours of work and to employ more men and of compensating the employees for the burden of longer hours. That is, to discourage overtime employment and to encourage a greater spread of employment among more laborers. Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 65 S.Ct. 1242, 89 L.Ed. 1705; Carleton Screw Products Co. v. Fleming, 126 F.2d 537, Certiorari denied; D. & L. Production Co. v. Cuniff, Tex.Civ.App., 165 S.W.2d 933, error dismissed. The Act is remedial and humanitarian and must be liberally interpreted and not applied grudgingly. Tennessee Coal Iron & R. Co. v. Muscoda Local No. 123, etc., 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014; Johnson v. Dallas Downtown Development Co., 5 Cir., 132 F.2d 287, Certiorari denied; see also 152 A.L.R. 1014.

Other decisions get even closer to the questions involved in this appeal. In Corbett v. Schlumberger Well Surveying Corporation, D.C., 43 F.Supp. 605, and Bracey v. Luray, D.C., 49 F.Supp. 821 (reversed on other grounds 4 Cir., 138 F.2d 8), it was held that under the Act, if an employee worked part time in commerce and part time out, before he can recover for overtime he must show what part of overtime was done in commerce. In Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83, it was held that in a suit under this Act for overtime compensation and liquidated damages, the burden of proof is upon the employee to show that he was engaged in production of goods for commerce during the time for which he sues.

In Johnson v. Dierks Lumber & Coal Co., 8 Cir., 130 F.2d 115, and Wilson Oil Co. v. Hardy, 49 N.M. 337, 164 P.2d 209, 162 A. L.R. 292, and Martin v. Graham Ship-By-Truck Co., Mo.App., 176 S.W.2d 842, 846, it was held that in an action for overtime and liquidated damages under this Act the burden of proof is upon the employee to show by a preponderance of the evidence, "the number...