Pace v. Nat'l Bank of Commerce of Tulsa

• Decision Date: 14 April 1942
• Docket Number: Case Number: 30519
• Citation: 1942 OK 150,125 P.2d 178,190 Okla. 503
• Parties: PACE et al. v. NATIONAL BANK of COMMERCE OF TULSA et al.
• Court: Oklahoma Supreme Court

1942 OK 150

125 P.2d 178

190 Okla. 503

PACE et al. v. NATIONAL BANK of COMMERCE OF TULSA et al.

Case Number: 30519

Supreme Court of Oklahoma

Decided: April 14, 1942

Syllabus

¶0 MASTER AND SERVANT--Existence of Federal Fair Labor Law of 1938 at time contract of employment in interstate commerce was entered into between workman and employer held not sufficient to create implied contract within meaning of lien statutes to pay overtime or penalties provided for in federal act.

The mere fact that the Federal Fair Labor Standards Act of 1938, providing for payment for overtime labor performed by a workman engaged in interstate commerce and for certain penalties, was in existence and in operation at the time a contract of employment in interstate commerce was entered into between a workman and his employer specifying the wages to be paid, is not sufficient to create an implied contract within the meaning of the lien statutes to pay such overtime or penalties, and the workman is not entitled to a laborer's lien therefor (42 O. S. 1941 § 144; 15 O. S. 1941 § 133).

Appeal from District Court, Osage County; Hugh C. Jones, Judge.

Action by the National Bank of Commerce of Tulsa against Nysen Oil Corporation and others; Ben Pace and C. B. Bray, interveners. From an adverse judgment, said interveners appeal. Affirmed.

O. L. Barlow, of Hominy, and Jesse J. Worten, of Pawhuska, for plaintiffs in error.

Ownby & Warren, of Tulsa, for defendant in error National Bank of Commerce of Tulsa.

Harper, Williams & Boesche and Richard P. Ryan, all of Tulsa, for defendant in error National Supply Company.

GIBSON, J.

¶1 This action was commenced in the district court by the National Bank of Commerce of Tulsa against Nysen Oil Corporation and J. W. Huff to foreclose a mortgage on a certain oil and gas mining lease. Dowell Incorporated was joined as a defendant allegedly claiming some interest in the lease.

¶2 A number of lien claimants intervened, among them the plaintiffs in error Pace and Bray, who appeal from the judgment denying their lien claim.

¶3 Pace and Bray were employed by the lessee, Nysen Oil Corporation, as pumper and roustabout, respectively, on the leasehold under express contract at specified wages. They have been paid in full for their labor as provided in the contract. But, after the leasehold went into receivership in the present action, they filed their petitions of intervention based on lien claims alleging that they were entitled to compensation for overtime and certain liquidated damages and benefits alleged to accrue to them under the Federal Fair Labor Standards Act of 1938, 29 U. S. C. A. § 201 et seq.

¶4 The interveners take the position that the act of Congress aforesaid was at least by implication a part of their contract of employment, and that since they devoted more time to their duties than the maximum number of hours as limited by the act, they are entitled to pay therefor as therein provided and to a lien as provided by the statutes of this state. 42 o. S. 1941 § 144.

¶5 The act of Congress is not set out in the briefs, but it is sufficient to say that it applies only in those cases where the labor is performed in interstate commerce. It provides for payment of overtime for labor performed beyond a certain number of hours per week, and for certain payments in the nature of penalties.

¶6 Defendants in error say the interveners Pace and Bray actually performed no overtime services, and that if they did work overtime, the employment was not in interstate commerce; and, further, if they were entitled to pay for overtime, their claims are not lienable under our statutes.

¶7 A determination of the latter question will fully dispose of this appeal.

¶8 There appears to be some evidence in the record that the lessee agreed to pay one of the interveners for overtime, and there is evidence of at least as great weight that there was no such agreement. The appealing interveners must depend entirely on the act itself as imposing on the employer a contractual duty within the meaning of our lien statutes if they are to successfully claim protection under said statutes. Section 144, supra, says that any person who shall, under contract, express or implied, with the owner of any leasehold for oil...