Hollingsworth v. Cities Service Oil Co., 4385.

• Decision Date: 12 December 1946
• Docket Number: No. 4385.,4385.
• Citation: 199 S.W.2d 266
• Parties: HOLLINGSWORTH et al. v. CITIES SERVICE OIL CO.
• Court: Texas Court of Appeals

199 S.W.2d 266

HOLLINGSWORTH et al. v. CITIES SERVICE OIL CO.

No. 4385.

Court of Civil Appeals of Texas. Beaumont.

December 12, 1946.

Rehearing Denied January 8, 1947.

Appeal from District Court, Liberty County; Clyde E. Smith, Judge.

Suit to recover overtime, liquidated damages, and attorney's fees under Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., by W. S. Hollingsworth and others against the Cities Service Oil Company. From a judgment for the defendant notwithstanding the verdict, the plaintiffs appeal.

Affirmed.

Gilbert T. Adams, of Beaumont, for appellants.

H. J. Patterson, D. O. Dillon, and Cecil C. Cammack, all of Houston (A. Mills Ebright and Hayes McCoy, both of Bartlesville, Okl., of counsel), for appellee.

COE, Chief Justice.

This is a suit to recover overtime, liquidated damages and attorney's fees by appellants under the Fair Labor Standards Act, 29 U.S.C.A. §§ 201-219, because of overtime alleged to have been worked in excess of 40 hours per week while they were employed as pumpers on appellee's oil and gas lease in Liberty county, Texas.

The trial was before the court sitting with a jury. After the jury had returned its verdict in response to special issues, the court set aside and disregarded certain findings in the verdict of the jury and rendered judgment for appellee non obstante veredicto. Appellants, plaintiffs below, have perfected this appeal.

Appellant W. S. Hollingsworth alleged that he was employed by the appellee on January 22, 1942, and worked until May 8, 1943, less a period of time of six weeks, from December 24, 1942, to February 9, 1943; that he worked 12 hours per day, 6 days per week, totaling 72 hours per week, but that appellee paid him for only 40 hours for each week and therefore appellee owed plaintiff for 32 hours overtime for each and every week worked for said appellee. He further alleged his hourly wage rate covering various periods of time during his employment. The total overtime was alleged to amount to $2,763.96. With proper allegations that the work performed by him for appellee was work engaged in interstate commerce; also allegations for recovery of liquidated damages and attorney's fees. The appellant W. J. Hollingsworth made similar allegations except that he alleged that he was employed by appellant on May 20, 1939, and earned as overtime pay for which he had not been paid the sum of $5,743.04. The appellant W. J. Hollingsworth prayed for judgment in the total amount of $14,986.08, and for costs of court. The appellant W. S. Hollingsworth prayed for judgment in the total sum of $7,027.92, and for costs of court.

Appellee answered, setting up by way of special exceptions the two and four years statutes of limitation of the state of Texas; by a general denial and special pleas of the two and four years statutes of limitations as a bar to appellants' cause of action. The trial court sustained appellee's special exceptions invoking the four years limitation statute and overruled the exception invoking the two years statute and proceeded to trial on that portion of plaintiffs' alleged cause of action that was not barred by the four years limitation statute.

In answer to special issues submitted, the jury found in answer to special issue No. 1 that W. J. Hollingsworth was employed by Cities Service Oil Company for a 12 hour period each day, six days per week, from May 18, 1941, through January 8, 1942, and by their answer to special issue No. 2 the jury found that W. J. Hollingsworth was on duty for Cities Service Oil Company 12 hours per day, six days per week, from May 1941 through January 8, 1942, except for a period of six days sick leave. Then followed special issues 3, 4 and 5, whereby the jury found the hourly wage rate of appellant W. J. Hollingsworth to be 87½ cents per hour, that his work was in connection with Interstate Commerce, that a reasonable attorney's fee would be $500. By special issue No. 6, the jury found that W. S. Hollingsworth was employed by Cities Service Oil Company for a 12 hour period each day, six days per week, from January 2, 1942, through May 8, 1943, and in answer to special issue No. 7 the jury found that the appellant W. S. Hollingsworth was on duty for Cities Service Oil Company 12 hours per day, six days-per week, from January 22, 1942, to May 1, 1943, except for the period of time from November 29, 1942, to December 16, 1942, and from December 24, 1942, to February 13, 1943, followed by a finding that appellant W. S. Hollingsworth performed his services in connection with Interstate Commerce, fixing his hourly wage rate for different periods of time for such employment, and finding a reasonable attorney's fee to be $500.

After the return of the jury's verdict, appellants moved for judgment on the verdict and the appellee moved for judgment non obstante veredicto and asked the court to disregard special issue No. 2 and the answer of the jury thereto, and special issue No. 7 and the jury's answer thereto, as having no support in the evidence and because it was conclusively shown that the entire cause of action asserted by appellants matured more than two years prior to the filing of the suit and was, therefore, barred by the two years statute of limitation. The trial court overruled appellants' motion for judgment and granted the motion of appellee for judgment non obstante veredicto, finding that the cause of action asserted by each of the appellants was barred by the two years statute of limitations as plead by appellee, and that the answers of the jury to special issues Nos. 2 and 7, and each of them, had no support in the evidence and should be disregarded and that a directed verdict would have been proper and should have been given by the court.

Appellants complain of the action of the trial court in disregarding and setting aside the jury's findings in answer to special issues Nos....