Hatcher v. Smith

• Decision Date: 08 June 1972
• Docket Number: No. 671A104,No. 3,671A104,3
• Citation: 283 N.E.2d 582,31 Ind.Dec. 234,152 Ind.App. 299
• Parties: , 80 L.R.R.M. (BNA) 2994, 68 Lab.Cas. P 52,875 Richard Gordon HATCHER, Mayor, et al., Appellants (Defendants below), v. Monroe SMITH et al., Appellees (Plaintiffs below)
• Court: Indiana Appellate Court

Page 582

283 N.E.2d 582

152 Ind.App. 299, 80 L.R.R.M. (BNA) 2994,

68 Lab.Cas. P 52,875

Richard Gordon HATCHER, Mayor, et al., Appellants (Defendants below), v. Monroe SMITH et al., Appellees (Plaintiffs below).

No. 671A104.

Court of Appeals of Indiana, Division No. 3.

June 8, 1972.

Charles A. Ruckman, Asst. City Atty., Gary, for appellants.

Hilbert L. Bradley, Gary, for appellees.

STATON, Judge.

Thirty-three firemen, who were on vacation during a five day firemen's strike in Gary, Indiana, did not receive a week of their vacation pay after the strike had ended. Other firemen, who did not work during the strike, were paid. The thirty-three firemen brought a class action to recover their vacation pay against the Appellants, who shall hereafter be referred to as the 'City.' The trial court found inter alia that the 'City' arbitrarily deducted wages from the vacationing firemen and rendered a judgment for $17,437.50. The 'City' brings this appeal and contends inter alia:

(1) That the 'city's' action was not arbitrary, and

(2) That the trial court committed error in assessing damages for an excess of the back pay lost by the thirty-three vacationing firemen.

We affirm the trial court's judgment as to the arbitrary action taken by the 'City,' but reverse the trial court's judgment as to the assessment of damages with instructions in the opinion that follows:

The thirty-three vacationing firemen filed a complaint on June 23, 1970 which alleged inter alia:

'That in accordance with the rules and regulations of the BOARD OF PUBLIC WORKS AND SAFETY and Section 2--1236, plaintiffs, and other firemen similarly situated, were granted vacations and sick leave on or about the 30th day of June, 1969.

'That on or about the 5th day of August, 1969, due to a controversy between the firemen and defendants concerning wages and conditions of employment, members of the Gary Fire Department did strike, causing the stations to be locked, fire trucks unmanned, and firefighting discontinued for approximately five (5) days.

'That in violation of the governmental contract of employment, employer-employee relationship, the defendants arbitrarily, unreasonably, and capriciously paid some striking, vacationing or sick leave firemen, whose names are omitted due to numbers, and deducted wages from the plaintiffs for failing to work during the same period.'

A pre-trial order dated October 6, 1970 stipulates that the following list of firemen were paid during the strike from August 5, to and including August 10, 1969, pay period ending August 31, 1969:

                 1.  John LaBroi       $114.20
                 2.  Tom Farris         114.20
                 3.  James Rowan        103.40
                 4.  Tom Sourounis      103.40
                 5.  Edwin Nowak        107.50
                 6.  Al Nasiatka        103.40
                 7.  Pete Lewandowski   103.40
                 8.  Novo Martin
                 9.  Nick Koss          103.40
                10.  Alonzo Smith       117.50
                11.  Richard Landrum    117.50
                12.  Joe Ferkull        107.50
                13.  Oscar Rogers
                14.  Leo Piet           103.40
                15.  Albert Gambel      103.50
                16.  Pete Sut           117.50
                17.  Andrew Nemtuda     107.50
                18.  Fred Lazzaro       103.40
                19.  Willard Ferhat     107.50
                20.  Kenneth Callaway   109.20
                

Mr. Ruckman, attorney for the 'City,' further stipulated during trial:

'Now, we are, for the purpose of the record, we can stipulate that the salaries were deducted and the Board of Works did not repay any of the firemen involved in this case.'

The record does not show that the trial court followed Rule TR. 23(C)(3) of the Indiana Rules of Procedure, IC 1971, 34--5--1--1, which provides:

'The judgment in an action maintained as a class action under subdivision (B) (1) or (B)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (B)(3), whether or not favorable to the class, shall include and specify or describe those two whom the notice provided in subdivison (C)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.' when the trial court rendered its judgment in the sum of $17,437.50. This omission by the trial court will be discussed in greater detail under the section of this opinion dealing with excessive damages.

In reviewing the sufficiency of the evidence, this court will not weigh the evidence nor resolve questions of credibility of witnesses. We will look only to that evidence and the reasonable inferences therefrom which support the trial court's judgment. City of Indianapolis v. Schmid (1968), 251 Ind. 147, 240 N.E.2d 66; Turner v. State (1972), Ind., 280 N.E.2d 621; Wm. J. & M. S. Vessey, Inc. v. Hillman (1972), Ind.App., 280 N.E.2d 88. If the action of the trial court is sustainable on any theory, it must be affirmed. Ross v. Review Board (1962), 243 Ind. 61, 182 N.E.2d 585; State ex rel. Tittle v. Covington Comm. Schools (1951), 229 Ind. 208, 96 N.E.2d 334; Lewis v. Burke (1968), 143 Ind.App. 696, 242 N.E.2d 382.

The 'City' contends that the paying of some members of the fire force while deducting wages of the thirty-three vacationing firemen was not arbitrary, unreasonable and capricious as concluded by the trial court. The evidence and all of the reasonable inferences which may be drawn therefrom most favorable to the thirty-three vacationing firemen and the court's judgment does not support the 'City's' contention.

This evidence shows that the thirty-three vacationing firemen were granted vacations prior to the strike. The Gary Fire Department and the Gary Fire Fighters Association, Local 359 went on strike August 5, 1969. Fire Chief, Alphonso Holliday, isssued back to work orders and cancelled all vacations. Most of the stations were locked and guarded by police to protect the firefighting equipment and the buildings. Some of the vacationing firemen who received Fire Chief Holliday's notice that vacations were cancelled found policemen guarding their stations and were prevented from entering. Alfred Bono testified that he was unable to enter his station. His testimony is as follows:

'Q. That would have been the 6th?

'A. The 6th. My last working day was the 3rd on a Sunday. I rode past there and I seen a policeman in the station and he had his car in front of the engine and he had the station locked.

'Q. And did you engage in any conversation with the police officer?

'A. No, I couldn't get in.

'Q. Did you try to get in?

'A. They changed the locks.

'Q. I take it by that you did not have a key to the door, is that it?

'A. I had a key for a previous lock, but I think they changed them.'

Captain Nelson Bliss testified:

'Q. Did you receive a call from the Chief or anyone else from the Gary Fire Department to return to the job?

'A. No, I did not. I received, rather my son received a call on August 7, in the afternoon, nine--(9) year old boy at home, said some Chief had called from the fire station. I was working at Highland at the time. That night I got out about 7:30; I called the Chief.

'Q. What, if anything, did the station say?

'A. The Chief, Holliday, told me all vacations had been cancelled.

'Q. And what, if anything, then did you do after the Chief told you it had been cancelled.

'A. I went to the union hall at 5th and Massachusetts.

'Q. Did you go back to the job?

'A. I went back to the job Friday morning.

'Q. What, if anything, happened?

'A. I arrived at No. 9 on Clark Road at 6:50 a.m. in the morning, stopped at the door of the kitchen by a Gary police officer.

'Q. Did you know the police officer?

'A. No, I did not.

'Q. Did you engage in any conversation?

'A. None whatsoever. He said the Fire Department was on strike and we couldn't enter the station.

'Q. This is what the police said?

'A. This is what he said.'

George Droza testified:

'Q. Now, pursuant to the 5th day of August, of 1969, did you receive a call to go back to Station No. 3 to report to work?

'A. I didn't receive a call. My wife did. She relayed the message to me.

'Q. What, if anything, did you receive after you received this call?

'A. The following morning I reported to No. 3 Fire Station.

'Q. What, if anything, happened?

'A. Well, there was a uniformed policeman there. There was a vehicle parked in front of the door and I was told no one was admitted into the station.

'Q. How were you dressed?

'A. I was in firemen's blue working uniform.

'Q. You don't know whether it was the 6th or 7th?

'A. It was the day after I received the call, yes.'

A twenty-three year policy of the Department had been that no firemen on vacation was subject to recall during an emergency. This was the first time that Fire Chief Holliday had ever cancelled vacations. Battalion Chief Monroe Smith testified:

'Q. Have you become familiar with the policy of the department about men being on vacation?

'A. Yes.

'Q. What is that policy?

'A. The policy is on emergency recall you are subject to recall any time except on vacation.

'Q. Except on vacation?

'A. Except on vacation, and that has been the policy that has been handed down to me for the last twenty-three (23) years.'

Defendants' Exhibit No. 77, which was used to determine deductions, shows a notation next to the name of P. Jones as follows:

'No answer.'

A reasonable inference that may be drawn from this evidence is that P. Jones was never notified that his vacation had been cancelled. Yet on Exhibit 5(A) of Defendants, $114.20 was deducted from P. Jones' pay. These exhibits are supported by Mr. Jones' testimony at trial.

There is ample evidence in the record to show that other firemen who were on strike and did not work were paid. James Anast testified on cross-examination that:

'Q. Do you know if those men worked at any time during the strike?

'A. No, they did not work.

'Q. Now, how do you know this?

'A. Because I had conversations with these gentlemen and they told me.

'Q. You know none of them worked?

'A. None worked, because, in fact, if you remember prior, back, it was in the...