D. & L. Production Co. v. Cuniff, 2444.

• Citation: 180 S.W.2d 205
• Decision Date: 14 April 1944
• Docket Number: No. 2444.,2444.
• Parties: D. & L. PRODUCTION CO. v. CUNIFF.
• Court: Texas Court of Appeals

180 S.W.2d 205

D. & L. PRODUCTION CO. v. CUNIFF.

No. 2444.

Court of Civil Appeals of Texas. Eastland.

April 14, 1944.

Rehearing Denied May 12, 1944.

Appeal from Hardin County Court; A. L. Bevil, Judge.

Action by I. L. Cuniff against the D. & L. Production Company to recover overtime wages, liquidated damages and attorney's fee under the Fair Labor Standards Act. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

See, also, 165 S.W.2d 933.

Andrews, Kelley, Kurth & Campbell, of Houston, for appellant.

Chas. B. Walker and J. R. McDougald, both of Beaumont, for appellee.

GRISSOM, Justice.

On May 5, 1941, I. L. Cuniff filed a suit in the county court of Hardin County against D. & L. Production Company to recover the unpaid balance due him for wages as an oil well driller. Cuniff alleged that he was employed and worked for said defendant as a driller from December 7, 1939, to January 29, 1940, inclusive; that defendant agreed to pay him $1 per hour for such labor. His petition in said cause, number 943, showed that plaintiff worked every day during said period for twelve hours per day, and seven days per week, except Christmas Day, 1939. Plaintiff alleged in substance that he had been paid one-fourth of his wages; that he had made demand for payment of the remaining three-fourths more than thirty days before filing his petition in cause 943; that by reason of defendant's failure to pay the balance of wages owing to him, to wit, $387, plaintiff was entitled to recover, in addition to the balance of his wages, $20 as attorney's fee, which was alleged to be reasonable for the services rendered by his attorney. Plaintiff obtained judgment in cause number 943 for the sums sued for. This judgment became final and was collected.

Thereafter, on December 16, 1941, I. L. Cuniff, the same plaintiff, instituted the present suit, number 950, against the same defendant and in the same court. In this case plaintiff sought and obtained recovery for $120 overtime, $120 liquidated damages and $120 attorney's fee under the Fair Labor Standards Act, 29 U.S.C.A. §§ 207 to 216, inclusive, and the defendant has appealed. It is undisputed that if plaintiff is entitled to recover the overtime, liquidated damages and attorney's fee, recovered in this case, at the time he instituted cause number 943 he was then entitled to recover for the same things. Although no mention was made in the plaintiff's pleading in cause number 943 of a forty-two hour work-week, his pleadings in said first cause show the violation of the maximum hours provision, 29 U.S. C.A. § 207, which is the basis of plaintiff's recovery in cause number 950, now on appeal to this court.

Among other defenses, the defendant pleaded res adjudicata and estoppel by judgment. Section 207, supra, provides that no employer shall employ any of his employees for a work week longer than 42 hours, unless such employee receives compensation for all hours above 42 per week at a rate of not less than one and one-half times at the regular rate at which he is employed. Section 216 provides that an employer who violates section 207 shall be liable to the employee in the amount of his unpaid overtime compensation, and in addition for an equal amount as liquidated damages and for a reasonable attorney's fee.

Since...