Eidt v. City of Natchez
| Decision Date | 10 November 1982 |
| Docket Number | No. 53487,53487 |
| Parties | Robert EIDT v. CITY OF NATCHEZ. |
| Court | Mississippi Supreme Court |
Johnson & Johnson, Forrest A. Johnson, Jr., Natchez, for appellant.
Walter Brown, Joseph S. Zuccaro, Natchez, for appellee.
Before WALKER, P.J., BROOM and HAWKINS, JJ.
BROOM, Justice, for the Court:
Back pay due Robert Eidt for the time he was improperly discharged as a fireman for the City of Natchez is featured by this case appealed from the Circuit Court of Adams County, the Honorable Edwin O. Benoist, Jr., circuit judge. Previously on Eidt's first appeal, our decision was that his discharge was improper and that he should be reinstated with back pay less what he "has or reasonably should have earned" while discharged. Eidt v. City of Natchez, 382 So.2d 1093 (Miss.1980). Upon remand, based upon our decision, the Natchez Civil Service Commission heard the matter and found that had Eidt not been terminated as a fireman, his earnings would have been $26,452.84. The commission further found that during the period of his wrongful discharge he reasonably should have earned $13,100.00. Thus the commission ordered $13,100 be deducted from the $26,452.84, and awarded him the difference between the two figures: $13,352.84. Eidt appealed to the circuit court, which court affirmed the award upon condition of a $3,000 additur, making a total judgment of $16,352.84. Eidt appeals here the second time, and we reverse as to the amount of Eidt's recovery.
Arguments asserted by Eidt may be summarized as follows: (1) the circuit court erred in ordering remand of the case to the Natchez Civil Service Commission in the event the additur was not accepted, (2) the commission erred in making a determination of the amount of income that Eidt had or reasonably should have earned from March 18, 1978, through October 11, 1978, (3) the commission erred in taking judicial notice of and accepting as evidence certain "factual data" not properly in the record, and (4) the commission's findings were not supported by substantial evidence but were arbitrary, capricious and contrary to all the evidence presented at the hearing.
Natchez cross-appeals and argues that the circuit court erroneously ordered the $3,000 additur.
On the first appeal we ordered the case remanded and subsequently the following events have transpired: Eidt continued attending college (nights) as he previously did while a fireman with consent of his fire chief.
On May 19, 1980, Eidt's attorney wrote the Natchez Civil Service Commission requesting Eidt's reinstatement and payment of back wages owed by the City in accordance with our prior decision, Eidt v. City of Natchez, supra. Approximately one month later, on June 12, 1980, the Commission requested that all of Eidt's pay records be forwarded to the city attorney's possession. On July 8, 1980, the city notified Eidt to return to work at 6 o'clock the following morning and placed him upon six months' probation. The next day, following a vigorous complaint by Eidt's attorney with regard to the lack of notice and the unwarranted six months' probation, the city modified their return-to-work order. On July 17, the city attorney requested that Eidt, through his attorney, submit a proposal with regard to the subject of back wages owed Eidt by the city. On August 18, 1980, Eidt complied with this request and furnished supporting documentation (income tax returns).
After waiting another month, Eidt wrote a letter to the Civil Service Commission demanding a hearing, and noting that approximately five months had elapsed since this Court's April 30, 1980 mandate. On September 23, counsel for the commission notified Eidt's counsel that a hearing would be held September 29, 1980. This notice described the purpose and function of the hearing:
At that time you were asked to attend, to have your client present and to present evidence or testimony as you see fit.
It will be the function of the Commission at this hearing to determine how much income Eidt had or reasonably should have earned since his discharge on April 18, 1978 until his reinstatement on July 9, 1980, which amount, shall be deducted from the back pay which he would have earned from the City of Natchez during the same period. (Emphasis added).
At the hearing, the only witness for the commission was city clerk Martha Brown. She testified that for the period between March 18, 1978, and June 30, 1980, Eidt's wages from the Natchez Fire Department would have totaled $26,188.91. No other witnesses or evidence were adduced by the commission.
Eidt presented testimony of three witnesses. Mr. William C. McGehee, Eidt's attorney during the original litigation on the subject of his wrongful discharge, testified that Eidt had asked him for assistance in finding work during the period of time involved. McGehee testified that he had indeed tried to help Eidt through various contacts in the business community, but had no success. According to McGehee, adverse publicity on the subject of Eidt's discharge had placed Eidt in a bad light for employment purposes.
Eidt himself took the stand next and introduced his tax records for the years in question showing a total reportable income of $3,999. He testified as to his efforts to find employment during the period of time and indicated a notable lack of success. Eidt further testified that the only way he and his wife had been able to survive was by borrowing money from his parents and the bank.
Eidt's wife then took the stand and confirmed her husband's efforts at finding work. After Mrs. Eidt's testimony, Eidt rested his case and the hearings were adjourned. On October 14, 1980, the commission issued an order finding:
(1) Eidt's actual earnings for the period of time in question totaled $3,999.50 (per income tax returns); (2) Eidt had not checked with the State Employment office, but had put in applications at various places of employment and had checked the want ads in the newspaper; (3) Eidt was of excellent health and above average intelligence; (4) Adams County, Mississippi, is a highly industrialized urban county in which average wage data secured from the Mississippi Employment Security Commission showed the following:
AVERAGE WAGES PAID 1978
-------------------------
Annual Weekly
----------- ------
Adams County $11,040 $212
Statewide $ 9,320 $179
AVERAGE WAGES PAID 1979
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Annual Weekly
----------- ------
Adams County $12,160 $233
Statewide $10,200 $196
(5) In Adams County, Mississippi unemployment for white males for the year 1978 was 4.8%, and for the year 1979 was 3.9%; (6) Salary Eidt would have earned with the Natchez Fire Department totaled $26,452.84; (7) The amounts Eidt should have earned during the period of his wrongful discharge were as follows: (a) from March 19, 1978 through December 31, 1978--$60 a week; (b) from January 1, 1979 through December 31, 1979--$140 a week; (c) from January 1, 1980 through May 27, 1980--$160 a week; Total Robert Eidt should have earned $13,100 during the period of time of his wrongful discharge from the Natchez Fire Department.
The commission's order concluded:
The findings made herein are based on the evidence adduced at the hearing ... at which time Mr. Eidt and his counsel testified and offered evidence, upon the factual data obtained from the Mississippi Employment Security Commission, and upon the facts and other data weighed by the Commission as to the age, race, educational level and general background of Robert Eidt and of the job opportunities, wage scale and business climate in Adams County, Mississippi prevailing during the period of time in question.
On October 24, 1980, Eidt notified the commission of his intentions to appeal its decision to the circuit court, and requested transmission of the record of the hearings before the commission. On February 10, 1981, Eidt filed a petition for a writ of mandamus to compel the certification and filing of the requested transcript with the circuit court. 1 On March 2, 1981, the transcript of the proceedings before the commission was supplied to the circuit court.
On August 14, 1981, the circuit court issued an order affirming the decision of the Natchez Civil Service Commission upon the condition of an additur of $3,000. The court indicated that in the event the additur was not accepted, the cause was to be remanded for hearings before the Natchez Civil Service Commission "for further deliberation and determination and for the specific purpose of the formal admission of evidence concerning official statistics of the Mississippi State Employment Service and to allow the appellant to make such cross-examination as he deems appropriate with respect thereto."
DID THE COMMISSION ERR IN CONSIDERING BY JUDICIAL NOTICE DATA NOT INTRODUCED INTO EVIDENCE AT THE HEARING? In essence, Eidt contends that the findings of the commission should have been based solely upon evidence adduced at the September 29, 1980, evidentiary hearing. He asserts that the commission's findings of fact as to the average wage and the level of unemployment in Adams County have no basis whatsoever in the record, and accordingly he contends that the findings of the commission are arbitrary, capricious and unsupported by substantial evidence.
Natchez responds to this charge by contending that the statistical information as to unemployment levels and average weekly wages were subjects which were appropriate for judicial notice by the commission. Because such facts are capable of being judicially noticed, Natchez asserts that such facts were properly included in the formulation of the basis for the commission's determination of the amount of money that Robert Eidt earned or should have earned.
In weighing the respective validity of each of these positions, we briefly review the nature and function of "judicial...
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