
    SCOTT v. VILBIG CONST. CO.
    No. 3699.
    Court of Civil Appeals of Texas. Beaumont.
    May 11, 1940.
    Rehearing Denied May 29, 1940.
    
      David E. O’Fiel, of Beaumont, for appellant.
    Renfro & Keen, of Beaumont, for appel-lee.
   WALKER, Chief Justice.

This was an action in County Court of Jefferson County at Law, Jefferson County, by appellant, Geo. S. Scott, against appellee, Vilbig Construction 'Company, a corporation, for $300, claimed as the balance due on a wage contract whereby appellant was employed by appellee as its night watchman on its road contract with the Texas State Highway Department. The theory of appellant’s petition was that though he was employed as a night watchman at $16 per week, appellee used him as “an unskilled laborer” within that classification of labor as made in appel-lee’s contract with-the State Highway Department. Appellee answered by pleas of general demurrer, general denial and payment. On trial to the court without a jury, judgment was entered in appellant’s favor for $70.40. In support of the judgment, the court found that appellant worked for ap-pellee 1,020 hours “as an unskilled laborer.” The court further found that appellant “worked without any objection to the amount of pay being received by him.” Appellant has duly prosecuted his appeal to this court and has briefed his assignments of error.

On the undisputed evidence, appellant worked seven days per week, twelve hours per day; so, he worked twelve and one-seventh weeks. Appellee paid him for this time on the basis of $16 per week, totalling $194.28. On the finding of the court that appellant had worked 1,020 hours, appellee was due him for his services $408. The judgment should have been in appellant’s favor for $213.72.

The finding of the court that appellant “worked without any objection to the amount of pay being received” is immaterial: 1st, because the contract provided for compensation at 40 cents per hour for unskilled labor; 2nd, because by the provisions of Article 5165, Vernon’s Ann.Civ.St, and of House Bill No. 115, Chapter 259, Acts 44th Legislature, Regular Session, p. 644, amending Article 1580 of the Revised Penal Code of 1925, Vernon’s Ann.P.C. art. 1580, and repealing Article 5166, R.C.S. of 1925, appellee was bound to pay appellant an unskilled laborer 40 cents per hour for his services.

The statement made by appellant in his brief does not make the issue of “time and a half” for overtime.

The judgment of the lower court is here reformed awarding appellant $213.72, and as reformed it is affirmed.  