On Motion for Rehearing. The appellant, defendant below, in briefs supporting a motion for rehearing, vigorously challenges the correctness of our conclusion that the judgment of the lower court should be affirmed. Careful consideration of the arguments fails to persuade us of error in the result announced or the reasoning advanced in support of it. Nevertheless, there is language in our opinion meriting some clarification, more especially since it was employed arguendo and touched upon a question not appropriately raised below. In the course of our opinion, we said:
"At first blush it might appear that because of the irregular and uncertain hours to be employed that the parties could contract in advance for a fair and reasonable computation of average daily hours the work would require. And yet, because of the public policy involved, this cannot be permitted."
This declaration, it is said, is made in the face of language of the United States Supreme Court in Tennessee C., I. R. Co. v. Muscoda Local 123, 321 U.S. 590, 64 S. Ct. 698, 705,88 L. Ed. 949, 152 A.L.R. 1014, the "portal to portal" case, where, after disposing of the review in a manner favorably to the employees in so far as the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., was concerned, the court said of its holding:
"This does not foreclose, of course, reasonable provisions of contract or custom governing the computation of work hours where precisely accurate computation is difficult or impossible."
But, it is to be noticed that there was neither a finding, a request for a finding, nor any ruling invoked below so as to present the question of the difficulty, or impossibility, of precisely accurate computation of overtime, in the case at bar.
Whether, if requested, the trial court would have found that the work hours of appellees were impossible, or so difficult to compute precisely as to sustain reasonable provisions governing computation, and then have held the provisions of the time sheets reasonable in spite of the excess overtime employed above that provided for, we have no way of knowing. It is enough to deny consideration of the question here that at the trial appellant sought to hold appellees *Page 352 to the language of the time sheets touching overtime as a strict matter of contract which they would, under the circumstances, be estopped to disavow, without reference to the considerations mentioned in the "portal to portal" case. Even in that case, the language seems obiter dictum. Hence, we here express neither approval or disapproval, merely noticing it to say that the record before us does not call for a ruling whether a reasonable contract provision of the kind mentioned would violate the act. The language of our opinion on file, employed arguendo, as we have said, stating such a contract would violate the act, is withdrawn. Otherwise the opinion will stand as written.
The motion for rehearing will be denied.
It is so ordered.
BRICE and LUJAN, JJ., concur.