Skelly Oil Co. v. Jackson, Case Number: 31058

• Decision Date: 11 April 1944
• Docket Number: Case Number: 31058
• Citation: 148 P.2d 182,1944 OK 179,194 Okla. 183
• Parties: SKELLY OIL CO. v. JACKSON
• Court: Oklahoma Supreme Court

1944 OK 179

148 P.2d 182

194 Okla. 183

SKELLY OIL CO. v. JACKSON

Case Number: 31058

Supreme Court of Oklahoma

Decided: April 11, 1944

Syllabus

¶0 1. MASTER AND SERVANT--Oil pumper living on lease and working under reasonable agreement with employer for computation of hours of work could not collect unpaid overtime compensation and liquidated damages under Fair Labor Standards Act for additional time when he was available for work but not working.

An oil pumper who lives on the premises of his employer where his work is performed and who only works a portion of the time during which he has agreed to be available for work who makes a reasonable and bona fide agreement with his employer for the computation of hours of work, which agreement comprehends full regular and overtime pay for time actually worked, cannot collect unpaid overtime compensation and liquidated damages under subsection (b) of section 16 of the Fair Labor Standards Act, 52 Stat. 1069, Title 29 U. S. C. A. see. 216, for additional time when he was available for work but not working.

2. SAME--Instructions erroneous which ignored existence or effect of reasonable agreement between employer and employee.

Instructions of the trial court examined, and held to have been erroneously so drafted as to permit and authorize recovery for unpaid overtime compensation and liquidated damages for time when plaintiff was not working but only available for work, when a reasonable and bona fide agreement may have existed which would have included the compensation of such time; and held further that the trial court erroneously assumed the nonexistence of such agreement or the unreasonableness thereof when the evidence with reference thereto was in conflict.

Appeal from District Court, Stephens County; Cham Jones, Judge.

Action by John L. Jackson against the Skelly Oil Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Brown & Cund, of Duncan, and W. P. Z. German, Alvin F. Molony, and James Marberry, all of Tulsa, for plaintiff in error.

John B. Ogden, of Oklahoma City, and Wilson Wallace, of Ardmore, for defendant in error.

DAVISON, J.

¶1 This case arises under the Fair Labor Standards Act of 1938, commonly referred to as the Federal Wage-Hour Law (52 Stat. 1060-1069; Title 29 U. S. C. A. §§ 201-219).

¶2 The law applies to employees engaged in interstate commerce or in the production of goods for interstate commerce, 52 Stat. 1060 and 1061; 29 U. S. C. A. 202 and 203. Brooks Packing Co. v. Henry, 192 Okla. 533, 137 P. 2d 918. It contemplates the payment of minimum wages and compensation at the rate of 150% of the regular, as distinguished from the minimum wage for time worked in excess of maximum hours prescribed by the act. Overnight Motor Transportation Co. v. Missel, 316 U. S. 572, 86 L. Ed. 1682.

¶3 By subsection (b) of section 16 of the act, 52 Stat. 1069, title 29 U. S. C. A. § 216:

"(b) Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."

¶4 The congressional classification of the "additional equal amount as liquidated damages," as distinguished from a penalty, has been judicially approved. Overnight Motor Transportation Co. v. Missel, supra.

¶5 The Skelly Oil Company is engaged in the production of oil. It operates the C. T. Glass lease, a producing oil and gas lease, located about ten miles from Duncan, Okla. John L. Jackson was an employee of the company from August 16, 1933, until February 3, 1940, when he was discharged.

¶6 On the 19th day of November, 1940, about nine months subsequent to his discharge, Mr. Jackson, as plaintiff, instituted this action in the district court of Stephens county to recover from his former employer alleged unpaid overtime compensation in the sum of $665.04 for work asserted to have been performed by him between and including September 3, 1939, and February 3, 1940, as a pumper on the C. T. Glass lease. He also sought to recover a like sum as liquidated damages and the further allowance of $500 as attorney's fees. The alleged unpaid overtime compensation was computed on a basis of total earned compensation, paid and unpaid for 12 hours per day, five days in the week and 24 hours on the 6th day.

¶7 The defendant company in its answer joined issues with the plaintiff. Among other averments it asserted in substance that the plaintiff had been paid in full for all regular and overtime work performed by him.

¶8 In March of 1942 the cause was tried to a jury, resulting in a verdict and judgment for the plaintiff for the sum of $1,330.08, in addition to which the trial court awarded plaintiff an attorney's fee in the sum of $250 for the benefit of his attorneys.

¶9 The defendant presents the case on appeal. Our continued reference to the parties will be by their trial court designation.

¶10 The principal question to be determined in this appeal is whether the hours worked by an oil pumper on a producing lease, on which the pumper lived, are to be computed and determined on the basis of the number of hours during which such pumper under his agreement with the company was required to be on or near the lease and available in the event anything should be required in connection with the operation of the lease, or on the basis of a reasonable computation and agreement as to hours worked which is as great as or greater than the amount of hours actually worked but less than the amount of hours during which the pumper was required to be available.

¶11 Five producing wells were on the Glass lease. Pumping was necessary to produce oil. The lease was operated on a full time basis, that is, 24 hours of each day. Prior to September 3, 1939, there was but one pumper on the lease, one James B. Smith. On September 3, 1939, the plaintiff was transferred to the lease as an additional -pumper, and thereafter the two shared the duties, responsibilities, and work formerly performed by one. Both of the pumpers lived on the lease.

¶12 There is testimony in the record supporting the view that each of the pumpers was responsible for the operation of the wells on the lease during a 12-hour period each day for five days of the week and then on the other two days of the week each alternately assumed responsibility for a full 24-hour period.

¶13 The amount of time which plaintiff actually worked while on the lease and responsible for its operation is a subject of dispute under the evidence produced by the parties. Substantial and credible evidence was produced by the company indicating that plaintiff was not busy more than five or five and one-half hours per day, although he was actually paid for more in accord with time sheets prepared by the plaintiff and submitted to the company. The record indicates, however, that plaintiff was encouraged by the company to claim the maximum time per day and week which could be compensated at the regular rate of pay under the Wage-Hour Act, even though he did not actually work during all of the time claimed. Plaintiff's testimony, however, is to the effect that he was induced to falsify the time sheets in the company's favor and refrain from claiming overtime through implied threat of discharge, and that he actually worked in excess of the hours claimed (which in general corresponded to the maximum amount of hours per week which he could work under the WageHour Act for regular as distinguished from overtime pay).

¶14 There are numerous details of fact on which the evidence of the parties to this litigation conflict. However, those details need not be reviewed or analyzed in this opinion for the reason that error inheres in the theory upon which this phase of the case was disposed of in the trial court.

¶15 Plaintiff's recovery in the trial court was not limited by the time actually worked nor by any agreement, express or implied, between the parties, whereby he was paid on a computation of time which exceeded or equalled the amount of hours actually worked but which did not equal the amount of time he was subject to call, or was necessarily by implication required to be on or near the premises in order to be available if anything should go wrong with the machinery in operation. On the contrary, he was determined to be entitled to overtime compensation and liquidated damages for the failure of his employer to pay the compensation for time spent by him on or near the lease awaiting the occurrence of some incident requiring his attention, notwithstanding the possible existence of an agreement, express or implied, between himself and his employer that such waiting time should not be computed as overtime.

¶16 With reference to the method of computing the number of hours worked the trial court advised the jury by instruction number 3 that:

"You are instructed in connection with the number of hours that the plaintiff worked, you are to consider as work hours any time that the plaintiff, under the terms of his employment, had the responsibility of maintaining and keeping in operation the pumps and other machinery located on the lease of the defendant which were incident to the production of oil from such lease, and further to count as work hours any time that the plaintiff was obliged to remain on or near the premises where such oil

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