Devillier v. City of Opelousas, 3360

• Decision Date: 22 April 1971
• Docket Number: No. 3360,3360
• Citation: 247 So.2d 412
• Parties: Leo DEVILLIER et al., Plaintiffs-Appellants, v. CITY OF OPELOUSAS, Louisiana, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 412

247 So.2d 412

Leo DEVILLIER et al., Plaintiffs-Appellants, v. CITY OF OPELOUSAS, Louisiana, Defendant-Appellee.

No. 3360.

Court of Appeal of Louisiana, Third Circuit.

April 22, 1971.

Garland & DeJean by Harry B. Garland and H . B. DeJean, Opelousas, for plaintiffs-appellants.

Andrus & Pavy by Alex Andrus, Jr. and H. Garland Pavy, Opelousas, for defendant-appellee.

Before HOOD, MULLER and DOMENGEAUX, JJ.

HOOD, Judge.

This is a suit for overtime wages alleged to be due plaintiffs under the provisions of LSA-R.S. 33:1994. The suit was instituted by sixteen employees of the Opelousas City Fire Department, and by Mrs. Louise Perry Guilbeau, the widow of a former employee of that department who died on August 24, 1964. Mrs. Guilbeau sued individually and as tutrix of her minor children. The defendant is the City of Opelousas, Louisiana. Plaintiffs claim overtime wages for the period beginning October 1, 1960, and ending on December 4, 1967, amounting to $265,238.64, plus interest and attorney's fees. Defendant answered denying liability, and pleading the exception of laches and the exception of liberative prescription of one year.

The suit was filed on June 6, 1968. A hearing was held on both of the exceptions filed by defendant, and thereafter judgment was rendered by the trial court sustaining the exception of prescription, dismissing with prejudice the suit of Mrs. Guilbeau, and dismissing with prejudice those portions of the claims of all other plaintiffs which are for overtime wages accruing prior to June 6, 1967. No ruling was made on the exception of laches. Plaintiffs have appealed.

Defendant filed motion to dismiss the appeal, and we dined that motion. See Devillier v. City of Opelousas, 243 so.2d 118 (La.App. 3 Cir. 1971). Defendant then answered the appeal, demanding that this court consider and rule on the exception of laches, even though the trial court did not rule on it.

The principal issue presented is whether this is a suit by 'workmen, laborers and servants for the payment of their wages,' which prescribes in one year under LSA-C.C. art. 3534, or whether it is a personal action which prescribes in 10 years under LSA-C.C. art . 3544.

On October 1, 1960, the City of Opelousas was officially classed as having a population of over 13,000. Because of that circumstance, it became subject on that date to the mandatory provisions of LSA- R.S. 33:1994, which (as last amended by act No. 132 of 1962) ¹ provides:

'A. The maximum hours of work required of firemen covered by this Subpart in cities having a population of thirteen thousand or more and that of all parish and fire protection district paid firemen in any calendar week shall be sixty hours. However, in case of emergencies, they may be required to work in excess of the maximum hours. For each hour so worked in excess of sixty hours in any calendar week a fireman shall be paid at the rate of one and one-half times his usual salary, to be determined by reducing his average monthly salary to an hourly scale.

'B. The maximum hours of work required by persons employed or engaged full time by municipalities or municipal fire departments or by parish or parish fire departments or fire protection districts as operators of fire alarm systems in any one calendar week shall be forty-two hours.' (Emphasis added).

The plaintiffs in this suit allegedly were compelled by defendant to work a minimum of 84 hours per week from October 1, 1960, until December 4, 1967, except that Mrs. Guilbeau's husband worked that number of hours per week from October 1, 1960, until his death in 1964. On December 4, 1967, defendant readjusted the working schedules of its fire department personnel so as to practically eliminate all overtime work. The amount claimed by each plaintiff is based on the position which he held in the fire department, the hourly rate of pay he received, and the amount of overtime which he worked during the above mentioned period. Plaintiffs contend that defendant has failed to appropriate sufficient funds to comply with the provisions of R.S. 33:1994, and that it has refused to pay them the accrued overtime wages earned by them, despite repeated demands for payment of the amounts due.

LSA-C.C. art. 3534 provides, among other things, that the actions of 'workmen, laborers and servants, for the payment of their wages' are prescribed in one year. The trial court held that this article of the Civil Code applies here. Plaintiffs argue that it does not apply to the actions of firemen for statutory overtime pay for several reasons, one of which is that firemen are not 'workmen, laborers and servants.' They take the position that a fireman is a 'non-elective municipal officer,' and that his claim for overtime wages is a personal action which is subject only to the Ten year prescription provided by LSA-C.C. art. 3544.

Plaintiffs allege in their petition that, with the exception of Mrs. Guileau, 'petitioners are all regular Employees of the Opelousas Fire Department,' and that their 'wages for such Employment are paid out of public funds budgeted by said city from its general fund.' The statutes under which they claim overtime pay in this suit refer to firemen as 'persons Employed or Engaged full time * * * for fire fighting or fire prevention duties and services.' The compensation which they receive for the performance of their services is referred to in the statutes as 'salaries' or as 'pay.' And, the statutes repeatedly refer to the 'maximum hours of Work required of firemen,' and the hours 'worked' by them. See LSA-R.S. 33:1991--33:1999. We think the pleadings and the statutes make it clear that plaintiffs are 'employees' of the City of Opelousas.

Despite the above mentioned statutory provisions and allegations in their petition, plaintiffs argue that they, as firemen, are actually 'officers' or 'officials' of the municipality, that they cannot be classified as mere 'employees,' or as 'workmen, laborers and servants' of the city, and that their claims thus are not subject to the liberative prescription provided in LSA-C.C. art. 3534.

In Landry v. City of New Iberia, 223 So.2d 922 (La.App. 3 Cir. 1969), we held that firemen, including those who hold the rank of Fire Captain, are not 'officials' but instead are 'employees' of the city, within the meaning of the Louisiana Workmen's Compensation Act.

Our brothers of the First Circuit Court of Appeal held in Courville v. Globe Indemnity Co., 63 So.2d 446 (La.App. 1 Cir. 1953), that a night watchman for the Town of Basile was not an 'officer' of the municipality, within the meaning of the workmen's compensation laws. It based that conclusion, at least to some extent, on the fact that the night watchman was not required to take an oath of office, that no commission was issued to him, that no bond was required, and that neither his duties nor his term of office were prescribed by statute.

Some of the factors which have been used as the basis for holding that a person is a 'public officer,' rather than a mere 'employee' of a political subdivision, are: (1) A portion of the sovereign function of government has been delegated to him; (2) an official oath of office was required and administered; (3) his duties and powers were prescribed by statute rather than by contract; (4) the duration or term of his employment was fixed by statute; and (5) the position carried a high degree of dignity and independence. 62 C.J.S. Municipal Corporations § 599, page 1234; 37 Am.Jur., Municipal Corporations, § 225, Page 856; Glendinning v. Curry, 153 Fla. 398, 14 So.2d 794 (1943); Jefferson County v. Case, 244 Ala. 56, 12 So.2d 343 (1943); State v. Dark, 195 La. 139, 196 So. 47 (1940). The record indicates that none of these factors are present here.

The fact that a high degree of skill, training or experience is required of a fireman does not make all firemen public officers. The circumstance that their employment and tenure is regulated or protected by civil service laws, and the fact that a statute provides maximum hours of work and overtime benefits for them, has nothing to do with the question of whether they should be classified as officers or employees of the City.

We are aware of the fact that in Hall v. City of Shreveport, 157 La. 589, 102 So. 680 (1925), our Supreme Court held that policemen were 'officials' and not employees, within the meaning of the Workmen's Compensation Law. That case was legislatively overruled in 1950, however, by an amendment to LSA-R.S. 23:1034. See discussion of the Hall case in Landry v. City of New Iberia, supra.

We are convinced that the plaintiffs in the suit who are firemen, and Mrs. Guilbeau's deceased husband, must be classified as 'employees,' and not as 'officers' or 'officials,' of the City of Opelousas.

Having concluded that plaintiffs are 'employees' rather than 'officers,' we turn now to the question of whether they should be classified as 'laborers, workers and servants,' as those terms are used in LSA-C.C. art. 3534.

The words 'workmen, laborers and servants' are comprehensive terms which must be interpreted in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words. LSA-C.C. art. 14.

The constitutional and statutory provisions pertaining to the duties and functions of firemen in general, together with the testimony of Fire Chief James Cahanin, indicates to us that firemen should be classified as 'workmen.' In employment relationships this term is frequently used to denote those who do relatively skilled work, as well as those who perform menial labor. The word 'workman' has been held to be synonymous with the term 'laborer.' 98 C.J.S. Workman, page 835. And, a 'laborer' has been defined as including 'every person who follows any legitimate employment or discharges the duties of any office.' 51 C.J.S. Laborer, page 551.

Persons engaged in work of equal or greater specialty...