Burkheiser v. City of Detroit, 18.

• Decision Date: 05 March 1935
• Docket Number: No. 18.,18.
• Citation: 270 Mich. 381,259 N.W. 125
• Parties: BURKHEISER v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

270 Mich. 381

259 N.W. 125

BURKHEISER

v.CITY OF DETROIT et al.

No. 18.

Supreme Court of Michigan.

March 5, 1935.

Action by Martin N. Burkheiser against the City of Detroit and another. From a judgment in favor of plaintiff, defendant appeals.

Reversed, and new trial granted.Appeal from Circuit Court, Wayne County; Guy A. Miller, judge.

Argued before the Entire Bench.

Clarence E. Page and Walter E. Vashak, both of Detroit, for appellants.

Wm. Henry Gallagher, of Detroit (Francis Fitzgerald and Lewis E. Goldstein, both of Detroit, of counsel), for appellee.

WIEST, Justice.

Plaintiff, a Spanish War veteran, was employed at a daily wage by the city of Detroit as an inspector of sewer construction. The work was seasonal, and he was employed from June 29, 1929, until November of that year, when, along with some others, he was laid off for lack of work and his name placed on the preferred list for re-employment in line with seniority. In December, 1930, he petitioned the circuit court for the county of Wayne to issue a writ of mandamus, requiring the city to reinstate him in the employment, and also pay for the time he was laid off. The court directed reinstatement, but remitted him to an action at law as to compensation while laid off. He was reinstated, and no appeal taken from the order of the court. September 1, 1932, he brought the suit at bar to recover compensation during the time he was laid off, and, under directed verdict, had judgment.

The decision in the mandamus proceeding was erroneous, as pointed out in the subsequent case of Swantush v. City of Detroit, 257 Mich. 389, 241 N. W. 265, but, by reason of no appeal, is the law between the parties to this case.

At the close of all the proofs both parties moved for directed verdicts, but, before verdict was directed in favor of plaintiff, counsel for defendant preferred requests for instructions to be given the jury, one being upon the subject of acquiescence by plaintiff in his lay off arising out of his delay in seeking reinstatement and making claim for lost compensation. If the evidence disclosed that such question was one of fact for the jury, then it should have been so submitted and the error was not lost to defendant by reason of having previously asked for verdict at the direction of the court. Kane v. Detroit Life Insurance Co., 204 Mich. 357, 170 N. W. 35.

If plaintiff felt that he should have been reinstated, he ought to have moved promptly and have brought the subject to determination.

Upon appeal counsel for the city also contend that the charter of the city bars this suit, because plaintiff did not present his claim to the city council for allowance, while counsel for plaintiff urges nonapplicability of the charter provision because the claim was liquidated in nature.

Section 11, c. 7, tit. 6, charter of the city of Detroit, provides: ‘The common council shall audit and allow all accounts chargeable against the city, but no unliquidated account, or claim, or contract shall be received for audit or allowance unless it be accompanied by an affidavit of the person rendering it, to the effect that he verily believes...