Kirmse v. City of Gary

• Decision Date: 10 January 1944
• Docket Number: 17087.
• Citation: 51 N.E.2d 883,114 Ind.App. 558
• Parties: KIRMSE v. CITY OF GARY.
• Court: Indiana Appellate Court

51 N.E.2d 883

114 Ind.App. 558

KIRMSE v. CITY OF GARY.

No. 17087.

Appellate Court of Indiana, in Banc.

January 10, 1944

Richard S. Kaplan, of Gary, Emmet LaRue, of Renssalaer, and George Cohan, of Gary, for appellant.

John E. Roszkowski, City Atty., and Samuel S. Dubin, Asst. City Atty., both of Gary, for appellee.

ROYSE Presiding Judge.

Appellant brought this action against appellee in the Lake Superior Court for breach of contract for the alleged unlawful discharge of appellant from the police department of the City of Gary (appellee). The venue was changed to the Porter Superior Court and then to the Jasper Circuit Court.

The complaint alleged, in substance, appellant was appointed to the police department of appellee under a written contract and performed his duties in such employment for a little more than four years; that without cause and without trial or hearing or notice of any hearing and in violation of the statute, he was discharged from said police department; that prior to the commencement of this action the Porter Superior Court mandated appellee to reinstate appellant as a member of said police department and said judgment of mandate was never appealed from and is in full force and effect, but that appellee refused and still refuses to obey said mandate; that his salary as a member of the police department is $180 a month and since his unlawful discharge he has earned the sum of $1,630.

At the conclusion of appellant's evidence the trial court sustained appellee's motion for a judgment in its favor and judgment was rendered accordingly.

Appellant seasonably filed his motion for a new trial which was overruled. The only error assigned here is the overruling of this motion, the grounds of which are: (1) The decision of the court is not sustained by sufficient evidence; (2) The decision of the court is contrary to law. This assignment makes necessary a consideration of the evidence.

The evidence shows appellant was notified by letter from the Board of Safety of the City of Gary of his appointment as a member of the police department of said city on the 4th day of January, 1926; that on said date he took the oath required and furnished bond, and entered upon the performance of his duties as a member of said police department; that he was assigned to duty as a turnkey and continued in such employment until the 23rd day of January, 1930, when he was discharged without notice, without a hearing and without cause; that subsequent to said discharge the Porter Superior Court mandated the Board of Works and Safety of appellee to reinstate appellant as a member of said police department. Appellee refused to and still does refuse to obey said mandate. A certified copy of a duly enacted ordinance of the city of Gary, which by its terms became effective on the first Monday of January, 1926, and expired on the first Monday of January, 1930, and which provided that the annual salary of a turnkey of the police department of said City should be $2,040, was introduced in evidence. Other than this ordinance there was no evidence as to the compensation paid members of said police department.

Appellee contends that this evidence does not establish a prima facie case in favor of appellant.

In the oral argument of this case appellee conceded that the mandate of the Porter Superior Court directing the reinstatement of appellant was conclusive of the fact that appellant had been illegally discharged from its police department, which necessarily includes the admission that he had been legally appointed to said department, but it contended that the employment of a policeman by a city of the class to which appellee belongs is partially oral and partially in writing and therefore is considered a parol contract, and that an...