City of Evansville v. Maddox
| Decision Date | 19 February 1940 |
| Docket Number | 27320. |
| Citation | 25 N.E.2d 321,217 Ind. 39 |
| Parties | CITY OF EVANSVILLE v. MADDOX. |
| Court | Indiana Supreme Court |
Appeal from Probate Court, Vanderburgh County; Albert J. Veneman, judge.
Louis L. Roberts and Leo Warren, both of Evansville, for appellant.
E Menzies Lindsey, of Evansville, for appellee.
The appellee was plaintiff below and alleged in her complaint that on the 27th day of August, 1931, she 'was duly and legally appointed a member of the Police Force of said City of Evansville, under the jurisdiction of its Board of Public Safety'; that she qualified as a police officer 'and entered upon the duties appertaining to that office,' and thereafter continued as a member of the police force, serving 'in the Department of Health and Charities and/or Sanitary Department' with the rank of a patrolman; that on the 4th day of January, 1935, the chief of police 'wrongfully and unlawfully attempted to dismiss and discharge the plaintiff from her said office and/or employment,' and refused to permit her to continue in the performance of her duties, against her will and over her objections; that no charges were filed against her charging any offense or unfitness; that she was awarded no trial or hearing before the board; that neither the Board of Public Safety nor the Board of Public Works and Safety has made any order discharging the plaintiff; that from the time of her appointment until discharged by the chief of police she received the pay of a second year patrolman on the police force, or $1,825 per year. It is averred that there was due and owing to her the sum of $490.88.
Thereafter a supplemental complaint was filed demanding an additional sum of $1,300, being the salary alleged to be due to the date of trial. A demurrer was filed to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. It was overruled with exceptions. Defendant filed answers. The second paragraph of answer averred that the plaintiff ceased to perform any services for the city on the 4th day of January 1935, and since that date the services theretofore performed by her have been performed by another to whom all salaries and wages appropriated have been paid. Plaintiff's demurrer to this paragraph of answer for want of facts was sustained, with exceptions.
There was a trial by the court, and upon proper request the court found the facts specially, insubstance as follows:
The plaintiff was appointed a policewoman in the police department for the time and in the manner described in the complaint, and was assigned to the Department of Health and Charities until her discharge. The findings include all the facts averred in the complaint, above recited, including salary, want of charges, and hearing. Facts are found concerning the amount of appropriation made for the benefit of the police department as a whole, and the amount paid to the plaintiff before her discharge, and the amount due thereafter. That on the 1st day of January, 1935, a new city administration took office in charge of the executive and administrative departments, and 'in conformity with the law of the State of Indiana' organized a Board of Public Works and Safety. On that date the board adopted a resolution classifying the employees under the jurisdiction of the department as follows:
(a) Members of the police department to include all employees directly and actively engaged in the enforcement of law and the apprehension and arrest of violators thereof.
'(b) Members of the Police Department for other purposes to include police radio operators, telephone operators, mechanics, secretaries, clerks, stenographers, and all other persons not members of the police force who now or hereafter may be employed in any service auxiliary or incidental to the management of the police department.
'(c) Members of the Department of Public Safety for other purposes to include * * * woman attendants, inspectors, and all other officials and employees not falling within either of the above classifications.'
This resolution was followed the next day by the adoption of an ordinance by the common council classifying the employees of the police department in accordance with the resolutions of the Board of Public Works and Safety. Thereupon, the mayor with the approval of the Board of Public Works and Safety appointed another person to perform the duties theretofore performed by the appellant in the Department of Public Health and Charities, who since that date has performed all services and has received the pay theretofore performed and received by plaintiff. Since said date the plaintiff has performed no services for the defendant, filed no petition, instituted no action to recover said position, and has demanded no hearing upon her discharge.
Upon said findings the court stated its conclusions of law as follows: (1) On January 4, 1935, the defendant unlawfully breached its contract of employment then existing between it and the plaintiff; (2) the plaintiff is entitled to recover from the defendant upon her complaint the sum of $490.88; (3) plaintiff is entitled to recover upon her supplemental complaint the sum of $1,214.79; (4) the plaintiff is entitled to recover her costs.
Upon these findings and conclusions the court rendered judgment for the plaintiff in the sum of $1,705.67. A motion for a new trial was filed and overruled. On appeal the appellant assigns as error (1) overruling appellant's demurrer to appellee's complaint, (2) sustaining appellee's demurrer to the second paragraph of answer, (3) error of court in its conclusions Nos. 1, 2, 3, and 4, and (4) overruling appellant's motion for a new trial.
The appellant contends that its demurrer to the complaint was improperly overruled. The sufficiency of the complaint is attacked upon the ground that it is not alleged that the appellee 'was ever appointed to or ever became a member of the Police Force of the appellant by proper appointment.' This objection is based upon the allegation that she 'was duly and legally appointed a member of the Police Force of said City of Evansville, under the jurisdiction of its Board of Public Safety.' Appellant contends that such averment fails to state facts upon which the court could determine the manner of her appointment, or as to whether or not she was appointed by the Board of Public Safety as prescribed by statute. The objection, in reality, means that the pleader was stating a conclusion rather than an averment of fact and does not show that she was appointed by the proper authority.
It is further objected that there was no such officer as a policewoman in a city of the second class, to which the City of Evansville belongs; that the complaint alleged that she was discharged by the chief of police, an inferior officer, whereas under the statute she could be discharged only by the Board of Public Works and Safety; that the allegations of the complaint did not show a contract between appellant and appellee; and that no demand for the hearing was made upon appellant.
The appellant did not ask the court to require the appellee to make her complaint more definite and certain, or to plead facts to sustain the conclusions contained in the complaint. The complaint repeatedly uses the symbol 'and/or.' She refers to her position as an 'office and/or employment.' The appellant certainly would have been sustained in a motion to require facts to be pleaded or to make the complaint more specific and certain by requiring the appellee to proceed upon a definite theory, either that she was an officer or an employee. Since the appellant elected to...
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