Ille v. Travis Oil Corp.

• Decision Date: 02 October 1945
• Docket Number: Case Number: 31819
• Citation: 1945 OK 246,196 Okla. 332,164 P.2d 998
• Parties: ILLE et al. v. TRAVIS OIL CORPORATION
• Court: Oklahoma Supreme Court

1945 OK 246

164 P.2d 998

196 Okla. 332

ILLE et al. v. TRAVIS OIL CORPORATION

Case Number: 31819

Supreme Court of Oklahoma

Decided: October 2, 1945

Syllabus

¶0 1. MASTER AND SERVANT-Federal Fair Labor Standards Act of 1938-In actions in state courts, federal statute and decisions control substantive rights but state rules of practice and procedure govern as to matters pertaining to remedy.

In actions in the state courts for enforcement of the rights of employees under the Federal Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U. S. C. A. 201, the statute and interpretation placed thereon by the Supreme Court of the United States control as to the substantive rights of the parties, but state rules of practice and procedure govern as to all matters pertaining to the remedy both in the trial court and on appeal.

2. SAME--Purposes of wage and hour provisions of act.

The purposes of the wage and hour provisions of the Federal Fair Labor Standards Act of 1938 were (1) to raise substandard wages, (2) to spread employment by placing financial pressure on the employer through the overtime pay requirement, (3) to compensate employees for the burden of a workweek in excess of the hours fixed in the act.

3. SAME--Validity of hourly rate contracts with employees which guarantee same weekly or take-home wages formerly received.

The Federal Fair Labor Standards Act of 1938 does not prevent an employer from entering into hourly rate contracts with employees under which they are guaranteed the same weekly or take-home wages that they received prior to its effective date, so long as the contracts are entered into fairly and without coercion and are not computed in a wholly unrealistic and artificial manner in order to evade the requirements of the act, and so long as the new rate equals or exceeds the minimum required by the act.

4. SAME--Validity of contract for different rates of pay for different kinds of work.

Employers and employees coming under the Federal Fair Labor Standards Act of 1938 may contract for different rates of pay for different kinds of work so long as the contract is made fairly and without coercion and so long as the regular rates agreed upon are not computed in a wholly unrealistic and artificial manner in order to evade the requirements of the act.

5. TRIAL--lnstructed verdict improper where evidence conflicting on vital issue.

Where there is conflicting evidence on a vital issue in the case, one of the parties is not entitled to an instructed verdict because the opposite party stipulated to other issues favorably to such party.

6. PLEADING--Defenses under general denial.

Under a general denial, a defendant is entitled to offer evidence of any facts which will tend to controvert what the plaintiff is bound in the first instance to prove to establish his cause of action.

7. APPEAL AND ERROR- Pleadings considered amended to conform to evidence admitted without objection.

Where evidence is introduced, without objection, which is inadmissible because not within the issues, the Supreme Court may on appeal give such evidence the same force and effect as if it were legally admissible, and may consider the pleadings amended to conform to the proof where the amendment would have been proper at the trial.

8. APPEAL AND ERROR-Sufficieny of conflicting evidence to sustain verdict.

A verdict of a jury based upon conflicting evidence, in an action of legal cognizance, will not be disturbed on appeal where there is competent evidence reasonably tending to support the verdict and the same has received the approval of the trial court.

9. APPEAL AND ERROR- Issue may not be raised for first time on appeal-Issue of subterfuge in making wage contract under Federal Fair Labor Standards Act.

Where, in an action to recover compensation, liquidated damages and attorney fees for overtime work under the Federal Fair Labor Standards Act of 1938, the pleadings did not specifically raise the issue of subterfuge in making a contract for wages in order to evade the requirements of the act, and no instruction was requested or given on such issue, and the appellant did not except to the instructions as given, the appellant may not urge such issue on appeal as ground for reversal.

Appeal from District Court, Oklahoma County; Albert C. Hunt, Judge.

Action by Frank Ille and A. M. Sherrill against the Travis Oil Corporation. Judgment for defendant, and plaintiffs appeal. Affirmed.

Wendell G. Stockton and T. J. McComb, both of Oklahoma City, for plaintiffs in error.

Richard son , Shartel , Cochran & Pruet, of Oklahoma City, for defendant in error.

HURST, V. C. J.

¶1 This is an action by two employees to recover from their employer wages, liquidated damages, and attorney fees for overtime worked between January 1, 1939, and June 29, 1941, under the provisions of the Federal Fair Labor Standards Act of 1938, 52, Stat. 1060, 29 U.S.C.A. 201. From a judgment in favor of the defendant employer, based upon a jury verdict the plaintiffs have appealed.

¶2 The defendant admits that it was engaged in interstate commerce, and hence comes under the act, and that the plaintiffs worked overtime the number of hours alleged by them. The issue of fact on which the parties differ is whether the plaintiffs have been paid time and a half for the overtime under an agreement fixing the wages.

¶3 The defendant introduced evidence from which the jury could reasonably find that prior to the effective date of the act it was employing three men at each of its three gas lift plants, and that the men worked 56 hours per week and were drawing wages at the rate of 75 cents per hour; that because of its weak financial condition it did not feel able to pay overtime under the act, and in order to avoid paying overtime it put an extra man on at each plant so that each employee worked only 42 hours per week and no overtime and each was paid wages at the rate of 75 cents per hour. This had the effect of reducing the amount of wages formerly earned by each employee. The old employees objected to the reduction in the total wages earned by them, and then worked out an agreement with the defendant by which only three would work at each plant and they would be paid 75 cents per hour regular time as operators and they would work overtime as repair men and in clean up work at 50 cents per hour which with time and a half for overtime would make 75 cents per hour for the overtime. Thus they would be receiving the same amount of wages under the act as they were receiving prior to its effective date. The plaintiffs and the other employees were paid by check twice a month and each check bore this endorsement: "This check is in full settlement of account as shown herein. Acceptance by endorsement constitutes receipt in full." The plaintiffs made no objections to the amounts paid them and no demand for overtime until they quit work. This action was commenced about six months thereafter. The plaintiffs denied that they were present when such agreement for readjustment of their wage scale was made and they denied any knowledge of it though they admitted that the extra men were put on and taken off.

¶4 In determining the substantive rights of employers and employees under the act we are bound by the term of the act, which creates the cause of action, and the interpretation placed upon it by the United States Supreme Court, but in enforcing the act in the state courts state rules of practice and procedure govern both in the trial court and on appeal. 5 R. C. L. 1042 § 134; 11 Am. Jur. 498, § 186; 12 C. J. 447, 483, §§ 27, 92; 15 C. J. S. 877, 948, §§ 9, 22; Central Vermont Ry. Co. v. White, 238 U. S. 507, 59 L. Ed. 1433, 35 S. Ct. 865, Ann. Cas. 1916B, 252; Minneapolis & St. Louis R. R. Co. v. Bombolis, 241 U. S. 211, 36 S. Ct. 595, 60 L. Ed. 961, Ann. Cas. 1916 E, 505, L. R. A. 1917 A, 86; Rockwood v. Crown Laundry Co., 352 Mo. 561, 178 S. W. 2d 440. A flood of litigation has resulted from the operation and enforcement of the act. For a collection of such cases, see 130 A. L. R. 272, 140 A. L. R. 1263, 144 A. L. R. 1375 and 152 A. L. R. 1030, annotations; American Digest, Master and Servant, Key No. 69.

¶5 The following applicable rules seem to be settled by the decisions: (a) The purposes of the wage and hour provisions were (1) to raise substandard wages, (2) to spread employment by placing financial pressure on the employer through the overtime pay requirement, and (3) to compensate employees for the burden of a...