Feuchter v. City of St. Louis

• Decision Date: 08 March 1948
• Docket Number: 40600
• Citation: 210 S.W.2d 21,357 Mo. 616
• Parties: Joseph J. Feuchter v. The City of St. Louis, a Municipal Corporation, Arthur C. Myers, Director of Streets and Sewers of the City of St. Louis, Louis Nolte, Comptroller of the City of St. Louis, Luther Ely Smith, Paul J. Kaveney, and Joseph Holland, Being the Members of and Constituting the Civil Service Commission of the City of St. Louis, Appellants
• Court: Missouri Supreme Court

210 S.W.2d 21

357 Mo. 616

Joseph J. Feuchter v. The City of St. Louis, a Municipal Corporation, Arthur C. Myers, Director of Streets and Sewers of the City of St. Louis, Louis Nolte, Comptroller of the City of St. Louis, Luther Ely Smith, Paul J. Kaveney, and Joseph Holland, Being the Members of and Constituting the Civil Service Commission of the City of St. Louis, Appellants

No. 40600

Supreme Court of Missouri

March 8, 1948

Rehearing Denied April 12, 1948.

Appeal from Circuit Court of City of St. Louis; Hon. Jos. J Ward, Judge.

Affirmed in part and reversed in part.

George L. Stemmler and Charles J. Dolan for appellants.

(1) On the effective date of the Civil Service Amendment to the Charter of the City of St. Louis, respondent was a temporary employee. Charter of the City of St. Louis (1914), Art. 18 Sec. 4; Sheridan v. Kern, 5 N.Y.S. (2d) 336; Howe v. Civil Service Comm. of City of Bridgeport, 128 Conn. 35, 20 A.2d 397. (2) Respondent continued to be a temporary employee after the Civil Service Amendment to the Charter of 1914 became effective. Charter of the City of St. Louis as amended in 1941, Art. 18, Sec. 12; Fink v. Kern, 26 N.Y.S. 891; Koso v. Greene, 260 N.Y.S. 461; Talbert v. Jeacock, 14 N.Y.S. (2d) 52. (3) Respondent was a temporary employee on November 21, 1942, when he was inducted into the United States Army. See authorities cited under Point (2). (4) Respondent was not entitled to a military leave of absence with the privilege of reinstatement. Ordinance of the City of St. Louis, No. 42437, Sec. 11. (5) Such being his status at the time of his induction, no administrative ruling could change it. Howe v. Civil Service Comm. of City of Bridgeport, 128 Conn. 35, 20 A.2d 397. (6) The Director of Streets and Sewers could not change his status by attempting to grant him military leave of absence. (7) The Director of Personnel did not change respondent's status by sending him a form letter inquiring whether he desired to return to his former employment. (8) Since the leave of absence was granted to respondent at his own request, the City of St. Louis is not estopped to question respondent's Civil Service status by reason of the issuance of such leave of absence (9) The doctrine of equitable estoppel is not applicable to a municipal corporation when it receives no benefit or consideration from the alleged illegal or unauthorized act of its agent. School District v. Correll, 220 Mo.App. l.c. 331; City of Pacific v. Ryan, 325 Mo. l.c. 379. (10) Respondent's entrance into the United States Army was not conditioned upon the granting of a military leave of absence by the City of St. Louis. Respondent had been ordered to report for duty at Jefferson Barracks before he requested a leave of absence. (11) There is no basis shown for the award of damages in any substantial amount even assuming that respondent was wrongfully excluded from his position. The amount and items of pecuniary damage are not presumed but must be proved. 25 C.J.S., p. 788. (12) A municipal corporation is not liable to a former employee for damages on account of its refusal or failure to reinstate him in his employment. State ex rel. Gallagher v. Kansas City, 319 Mo. 705.

Harold C. Hanke for respondent.

(1) Respondent was legally occupying the position of traffic engineer by regular appointment on September 15, 1941. Hence he became a permanent employee after said date and is entitled to the benefits of Ordinance 42437 (Plaintiff's Exhibit D). Charter City of St. Louis, Art. XVIII, Sec. 12, as amended Sept. 15, 1941; Charter City of St. Louis, Art. XVIII, Secs. 3 and 4, prior to Sept. 15, 1941; Rule IX of the Efficiency Board of the City of St. Louis. (2) Appellants have consistently interpreted the Charter and Ordinances that respondent was a permanent employee legally occupying the position of traffic engineer, and that he was entitled to the military leave of absence. That interpretation is entitled to great weight and is correct. Ordinance 42437, City of St. Louis; Ordinance 42995, City of St. Louis; Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281. (3) The granting of the military leave of absence to respondent by the director of personnel was an administrative ruling from which no appeal was taken and is therefore final. It also shows a construction of the Ordinance and Charter by the persons authorized to administer it which is entitled to great weight Rule II, Sec. 7, Civil Service Commission of St. Louis; Rule XIII, Secs. 1 and 8, Civil Service Commission of St. Louis. (4) Ordinance 42437, Section 11, was re-enacted three times with no substantial change with respect to the provisions for military leave of absence, and the construction by the Director of Personnel that respondent was entitled to a military leave is therefore entitled to great weight in determining the intent of the ordinance. Ordinances 42437, 42671, 42995, 43677 of the City of St. Louis; State ex rel. Barrett v. First Natl. Bank, 297 Mo. 397, 249 S.W. 619, 30 A.L.R. 918; State ex rel. Koeln v. St. Louis Y.M.C.A., 259 Mo. 233, 168 S.W. 589; Automobile Gasoline Co. v. St. Louis, 326 Mo. 435, 32 S.W.2d 281; In re Kansas City Star Co., 346 Mo. 658, 142 S.W.2d 1029, 130 A.L.R. 1168; Robertson v. Manufacturing Lumbermen's Underwriters, 346 Mo. 1103, 145 S.W.2d 134. (5) The Director of Personnel made an administrative ruling that respondent was entitled to reinstatement to the same class of position, namely, Mechanical Engineer III, he occupied at the time he was granted a military leave of absence, and since no appeal was taken by anyone, said ruling is final. Rule XIII, Secs. 1 and 8, Civil Service Commission of St. Louis. (6) Ordinance 42437 was enacted to make mandatory as to city employees the non-mandatory re-employment provision of the Selective Service and Training Act of 1940. Said Ordinance should be interpreted fairly to respondent and is mandatory in requiring his reinstatement to the same class of position he occupied when the military leave of absence was granted. Title 50, U.S.C.A., sec. 308; Ordinance 42437, City of St. Louis; Art. XVIII, Sec. 2, Charter of the City of St. Louis, as amended Sept. 15, 1941; State ex rel. Pedrolie v. Kirby, 349 Mo. 1010, 163 S.W.2d 964. (7) The admission of Exhibit I was not error, because it at least shows that demand was made for reinstatement to the same class of position as distinguished from the same position and because it is cumulative of other evidence. Zeppenfeld v. Morgan, 185 S.W.2d 898. (8) The judgment should not be reversed unless clearly erroneous. Sec. 114 (d), Laws of Missouri, p. 388; Sidney Weber, Inc., v. Interstate Motor Freight System, 205 S.W.2d 291. (9) Respondent is entitled to damages for loss of business credit and reputation. 17 C.J., sec. 121, p. 797; Gildersleeve v. Overstolz, 90 Mo.App. 518; Wakeman v. Wheeler Mfg. Co., 101 N.Y. 205; Chapman v. Kirby, 49 Ill. 211. (10) There is no fixed or definite standard for the measure of damages for injury to reputation, but nevertheless recovery can be had as in libel and slander suits. Arnold v. Sayings Co., 76 Mo.App. 159; Miller v. Dorsey, 149 Mo.App. 24, 129 S.W. 66; Vaughn v. May, 217 Mo.App. 613, 274 S.W. 969. (11) Loss of earning power as a result of personal injuries is allowed without proof of mathematical accuracy, and the same reasoning applies to respondent's loss of earning power because of the damage to his reputation. Northcutt v. St. Louis Pub. Serv. Co., 48 S.W.2d 89; Ganz v. Metropolitan St. Ry. Co., 220 S.W. 490. (12) The only case cited by appellants in support of point XII is not applicable here, because respondent is not asking to be reinstated to an office occupied by another, but only to the same class of position. State ex rel. v. Gallagher, 317 Mo. 705, 7 S.W.2d 357; Ordinance 42437, City of St. Louis.

OPINION

Hyde, J.

This is an action for reinstatement of plaintiff to the class of position in Civil Service of the City of St. Louis that he held prior to entering the United States Army in 1942, for the pay of such position from the time he applied for reinstatement in 1946 and for damages. The Court found for plaintiff and entered judgment ordering his reinstatement and payment of his salary in the amount of $ 4416.00 and for $ 7500.00 damages. Defendants have appealed.

Plaintiff's claim of right to reinstatement is based on Section 11 of Ordinance 42437 (approved Sept. 15, 1942), in effect in the City when plaintiff entered the army, which was as follows: "Permanent employees or employees in a working test period in the classified service who have left the City Service, or who shall do so, during the time of war or emergency, in order to enter the armed services of the United States, or to accept a civil position in furtherance of the war effort either at the urgent request of a governmental agency or under the terms of any legal provision for drafting manpower, now in effect, or hereafter enacted, shall be granted leaves of absence without pay to extend for sixty days beyond the date of termination of such military or emergency service. Upon the expiration of such leave of absence, the employee shall be reinstated to the class of position he occupied at the time the leave was granted. Failure of an employee to report for duty promptly at the expiration of the leave of absence shall be just cause for dismissal." (Our italics.) This ordinance was enacted to conform to a national policy of restoring those entering the armed forces during the war emergency to their previous positions and status, both in public employment and private industry, as provided in an Act of Congress. [U.S.C.A. Title 50, Sec. 308.]

Defendants say: "The sole issue in this case is whether or not respondent was a permanent employee of the City of...