Smith v. Ogle

• Decision Date: 20 November 1945
• Docket Number: Case Number: 31832
• Citation: 1945 OK 314,196 Okla. 295,164 P.2d 992
• Parties: SMITH et al. v. OGLE
• Court: Oklahoma Supreme Court

1945 OK 314

164 P.2d 992

196 Okla. 295

SMITH et al. v. OGLE

Case Number: 31832

Supreme Court of Oklahoma

Decided: November 20, 1945

Syllabus

¶0 1. APPEAL AND ERROR-Action for overtime wages under Fair Labor Standards Act of 1938-Allowance of attorney's fee as costs presumed proper where no authorities nor argument presented on question.

Whenever a statute authorizes a reasonable amount for attorney's fee as costs, the same is to be fixed by the trial judge; and, where, after verdict for plaintiff in action for overtime wages, the trial court heard evidence on motion to fix an attorney's fee, and apparently proceeded as though sec. 16 (b) of the Fair Labor Standards Act of 1938 authorized such fee as costs, the general rule of presumption in support of the trial court's action will prevail, in the absence of presentation of authorities and argument on the question of whether such act authorizes such allowance as "costs."

2. APPEAL AND ERROR--Cure of error in instruction by remittitur of excess amount of verdict.

Where an erroneous instruction affects only the amount of the verdict, and the amount which is attributable to such error is subject to calculation, the error is rendered harmless upon remititur of the excess amount.

3. MASTER AND SERVANT-Evidence sustained recovery by oil well pumper for overtime wages under Fair Labor Standards Act.

Record examined and held, that plaintiff's evidence is sufficient to show overtime work for the time indicated by the verdict, and that he was engaged in interstate commerce. Held, further, that the evidence is sufficient to sustain the conclusion that the defendant corporation was one of plaintiff's employers.

Appeal from Superior Court, Seminole County: Bob Aubrey, Judge.

Action by T. R. Ogle against J. F. Smith and Commercial Drilling Company for recovery of salary for alleged overtime under Fair Labor Standards Act of 1938, 29 U. S. C. A. §§ 201-219. Judgment for plaintiff, and defendants appeal. Affirmed upon condition.

Saunders & Van Wagner, of Shawnee, and Spillers & Spillers, of Tulsa, for plaintiffs in error.

Hugh M. Sandlin, of Holdenville, and Frank Seay, of Seminole, for defendant in error.

WELCH, J.

¶1 Ogle as plaintiff sought recovery under the Fair Labor Standards Act of 1938, 29 U. S. C. A. §§ 201219, for alleged overtime employment of some 2,700 hours at the overtime rate of $1.30 per hour. He alleged that he had performed such overtime work between October 1, 1938, to February 1, 1941. He sought judgment for $3,662.50, and attorney's fees. He obtained verdict and judgment for $1,775.04, and the court allowed attorney's fee of $300.

¶2 For reversal defendants urge four propositions. First it is argued that defendants' demurrers to plaintiff's evidence should have been sustained. Defendants seek to point out that plaintiff failed to prove that he had worked overtime, and the number of hours so worked, and that he failed to prove that his work was in interstate commerce.

¶3 The evidence shows that plaintiff was employed during the time set out as an oil well pumper; that he was furnished a house and lived on the oil lease premises and was paid a monthly salary of $150, which was fully paid. Plaintiff described his duties as follows:

"We had engines to kick off, rods and tubing to pull, we rayed pipe lines, water to pump, and water pumps to keep up and other works that goes with the lease, cleaning up and keeping it clean."

¶4 His further evidence is that no one else worked with him "only when an engine goes out and the rods part." During most of the time he pumped three wells on two adjoining leases, the wells being some five or six hundred feet apart. The wells were pumped 24 hours per day and plaintiff was on duty seven days per week, save only a few days when he was off duty.

¶5 Plaintiff produced three witnesses who lived near him at practically all times during the period involved, and they testified that they saw and observed plaintiff almost daily at his work and that he worked an average of from ten to twelve hours daily seven days per week with few days off. Plaintiff testified to the same effect. True, none of the witnesses had kept any record of the exact number of hours plaintiff had worked on any particular day. But an examination of the entire testimony leads us to conclude, assuming the truth thereof, that with only few exceptions, plaintiff contributed the major portion of his active hours to his duties as pumper, and not less than the number indicated by the verdict, and that this record in that respect contains a sufficient showing to withstand the demurrers and to support the amount of the verdict and judgment rendered.

¶6 As concerns the asserted lack of proof of employment in interstate commerce, there is evidence to the effect that the oil produced was transferred to pipe lines and carried out of the state. We find no merit in defendants' proposition one.

¶7 Defendants next contend that the venue was improper, that the superior court of Seminole county had no jurisdiction. The defendant Smith lived in and was served with summons in a county other than the county in which suit was brought. It is asserted that Smith was the sole employer of plaintiff, and that the defendant Commercial Drilling Company was not a necessary or proper party, but was made a party solely to confer venue on the court of trial. Defendants point to 12 O. S. 1941 § 139, and decisions construing same. Here, however, there is evidence to the effect that the drilling company owned interests in the lease or leases and furnished Smith with funds in part payment of plaintiff's salary; and on occasions the president of the company assumed some control and supervision over plaintiff in his work. In view of the record in that respect, we do not agree with defendants' contention in that regard.

¶8 Defendants next contend that:

"The trial court erred in entering a second judgment for attorneys' fees after the conclusion of the trial before the jury."

-and it is urged that when the case was submitted to the jury and verdict rendered, additional allowances could not thereafter be made; that "there could be but one final judgment in any action," citing Methvin v. Methvin, 191 Okla. 177, 127 P.2d 186, and others.

¶9 The cited cases have no reference to the allowance of an attorney's fee, in cases such as this.

¶10 Section 16 (b) of the Fair Labor Standards Act, supra, provides:

". . . 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."

¶11 In the instant case the judge of the court heard testimony in connection with plaintiff's motion for allowance of attorney's fee and made an allowance as above shown, and the amount thereof is not questioned.

¶12 It is quite clear that the trial court proceeded upon the theory that the above-quoted portion of section 16, supra, authorized the allowance of the attorney's fee as costs. If such fee is costs under such statute, then the action of the trial court was proper. Day v. Woodworth, 14 L. Ed. 181; 20 C. J. S. Costs, § 218; 25 C. J. S. Damages, §50. No citations nor argument are contained in plaintiffs in error's brief on the question of whether the attorney's fee provided by the above statute is costs. The presumption of correctness of the action of the trial court in that connection will therefore prevail. Blue v. Board of Commissioners of Garvin County, 82 Okla. 178, 198 P. 850.

¶13 Defendants finally contend that plaintiff's cause of action is barred by the statute of limitations, and they urge that the recovery herein sought, as to a portion thereof, is a forfeiture or penalty, and that therefore the 4th subdivision of 12 O. S. 1941 § 95, providing a one-year...