Pioneer Corp. v. Kimsey

• Decision Date: 23 October 1945
• Docket Number: 31928.
• Citation: 162 P.2d 1000,196 Okla. 89,1945 OK 273
• Parties: PIONEER CORPORATION v. KIMSEY.
• Court: Oklahoma Supreme Court

162 P.2d 1000

196 Okla. 89, 1945 OK 273

PIONEER CORPORATION v. KIMSEY.

No. 31928.

Supreme Court of Oklahoma

October 23, 1945

Appeal from District Court, Creek County; C. O. Beaver, Judge.

Action by W. L. Kimsey against the Pioneer Corporation, for overtime work, liquidated damages, and attorney's fee under the Fair Labor Standards Act. From a judgment on a verdict for plaintiff, defendant appeals.

Judgment affirmed.

Syllabus by the Court.

In an action under the Fair Labor Standards Act to recover for overtime wages, penalties and attorney's fee, the burden is upon the employee to show (1) that he actually worked overtime and to what extent, and (2) that this was known to his employer; and where the evidence on this issue, as well as the issue of estoppel, is in conflict, the jury's verdict in favor of the employee will not be disturbed.

Valjean Biddison and Floyd L. Rheam, both of Tulsa, for plaintiff in error.

T. L Blakemore, of Sapulpa, for defendant in error.

BAYLESS Justice.

Pioneer Corporation, a corporation, appeals from a judgment of the district court of Creek County, based on the verdict of a jury, in favor of W. L. Kimsey. Kimsey brought the action against Pioneer, his former employer, to recover for overtime work, liquidated damages, and attorney's fee under the Fair Labor Standards Act of 1938, 52 Stat 1060-1069, 29 U.S.C.A.§§ 201-219.

Pioneer presents two propositions, (a) an employee who seeks to recover under said Act has the burden of proof to show (1) that he actually worked overtime, and (2) that his employer had knowledge thereof, and (b) an employee who keeps his own time sheets and does not advise his employer of the fact that he is working overtime, but conceals such fact from the employer, is estopped from claiming overtime. Kimsey urges that these propositions present basically questions of fact only, and we agree with him. We do not understand from his brief that he controverts the correctness of the law of estoppel announced by the decisions cited by Pioneer, but contends that the facts do not justify the application of that rule in this case.

Pioneer argues that Kimsey has not sustained the burden of proof on either aspect of the first proposition. Kimsey argues that he has. Each of the parties cites parts of the record in support of these opposing arguments, and from this and our search of the record, we are of the opinion that the evidence is highly conflicting. It is an especially appropriate matter to leave to the jury. We say this in full recognition of the burden of proof that rests upon Kimsey under the decisions of the courts, including our own decisions are recent as Mabee Oil Co. v. Thomas, Okl.Sup., 158 P.2d 713.

Kimsey testified generally and in detail both on direct examination and throughout a searching cross-examination that he worked a steady shift from 7 o'clock a.m. to 5 o'clock p.m and thereafter and as late as 10 o'clock p.m. performed services necessary to the maintenance of the operation of the lease on which he was a pumper. Pioneer, relying upon the provisions of an interpretative bulletin issued by the Office of the Administrator of the Wage and Hour Division relating to the calculation of hours and wages for employees engaged in active work for part time of the day only but the nature of whose work required their presence 24 hours per day indulged in a cross-examination designed to elicit from Kimsey the exact nature and scope of his various duties, the amount of time required therefor, and the amount of time which he was free to spend and did spend away from the lease or for his own purposes when on the lease. At one time Kimsey was looking after two leases with the assistance of a helper, but later at Kimsey's request, not involving a complaint of overtime, this arrangement was discontinued and Kimsey directed all of his time to one lease. At the beginning of his employment Kimsey worked seven days per week, but later he worked six days per week being relieved by a substitute. The testimony of the substitute pumper and of the pumper who later succeeded to his duties is that it takes eight to nine hours a day to pump this lease. The testimony of the lease foreman for Pioneer was that this lease could be pumped in six and three quarters hours per day. Using these figures Kimsey calls attention to the fact that under any calculation based on seven days per week which he worked at one time he put in overtime, and on the basis of six days per week he put in overtime even on the six and three-quarter-hour basis testified to by the lease foreman. The...