Leonard v. City of Terre Haute

• Decision Date: 03 February 1911
• Docket Number: No. 7,242.,7,242.
• Citation: 93 N.E. 872,48 Ind.App. 104
• Parties: LEONARD v. CITY OF TERRE HAUTE.
• Court: Indiana Appellate Court

48 Ind.App. 104

93 N.E. 872

LEONARD

v.CITY OF TERRE HAUTE.

No. 7,242.¹

Appellate Court of Indiana, Division No. 2.

Feb. 3, 1911.

Appeal from Circuit Court, Parke County; Gould G. Rhenby, Judge.

Action by Elias F. Leonard against the City of Terre Haute. From a judgment for defendant, plaintiff appeals. Reversed, with directions to grant a new trial.R. B. Stimson and White & White, for appellant. Frank S. Rawley, Howard Maxwell, J. S. McFaddin, and Fred W. Snyder, for appellee.

LAIRY, J.

The appellant brought an action in the Vigo circuit court against the city of Terre Haute. The case was taken on a change of venue to the Parke circuit court, where a trial was had, and a judgment rendered in favor of appellee.

The complaint is in two paragraphs, and, omitting the formal parts, is as follows:

“(1) Elias F. Leonard complains of the city of Terre Haute, and for cause of action alleges that the defendant is a city of the third class, and for more than 20 years has maintained and still maintains a paid fire department; that said city has created and maintains a fireman's pension fund, which fund is made up largely of money deducted from the salaries of the members of said fire department; that on the 5th day of December, 1904, the plaintiff was appointed by the board of public safety to the office of chief of said fire department, and served in that office until the 4th day of September, 1906; that the salary of said chief of said fire department at the time of plaintiff's appointment to said office as aforesaid was, and ever since has been, $100 per month; that out of plaintiff's salary as such chief the usual sums were deducted and paid into said pension fund; that on the 4th day of September, 1906, the board of public safety of said city unlawfully attempted to depose said plaintiff from said office of chief of said fire department by an order deposing him from said office, which order was made without a hearing, without any notice to plaintiff, and for political reasons only; that on account of said unlawful order of said board, and for no other reason, the defendant struck plaintiff's name from the pay roll of said fire department, and refused and still refuses to pay plaintiff his salary as chief of said fire department; that the salary of said office becomes due and is payable monthly at the end of each calendar month; that the salary accruing to plaintiff as chief of said fire department from the 31st day of August, 1906, to the 1st of December, 1906, is due and unpaid, in the principal sum of $300, with interest on the installments thereof as they become due.

“(2) Elias F. Leonard complains of the city of Terre Haute, and for reason of action alleges that the defendant is a city of the third class and for more than 20 years has maintained and still maintains a paid fire department; that said city has created and maintains a fireman's pension fund, which fund is made up largely of money deducted from the salaries of members of said fire department; that the plaintiff is an expert fireman, and for more than 20 years has been, and still is, a member of said fire department; that the salary of an expert fireman in said department since June, 1906, has been and still is $67.50 a month, which salary becomes due and is payable at the end of each calendar month; that from the 5th day of December, 1904, to the 4th day of September, 1906, plaintiff acted as chief of said fire department at a salary of $100 a month; that on the 4th day of September, 1906, the board of public safety of said city made an order deposing plaintiff from acting as chief of said department, which order was made for political reasons only; that no charge has been made against plaintiff as member or as chief of said department, and no order has been made dismissing plaintiff from said fire department; that the defendant by reason of said order of the board of public safety of said city deposing plaintiff from acting as chief of said fire department, and for no other reason, has unlawfully stricken plaintiff's name from the pay roll of said department, and has refused, and still refuses, to pay to plaintiff the salary that has accrued to him as an expert fireman of said department from the 3d day of December, 1906, which amounts to $197.75; that the sum now due and unpaid on account of said salary is $197, principal, and interest on the several installments of said salary as they become due. Wherefore, plaintiff demands judgment against the defendant for $350, and for all proper relief.”

To this complaint appellee filed three paragraphs of answer. The first was a general denial, and the two other paragraphs were as follows:

“(2) Comes now the defendant, and for further and second answer to plaintiff's complaint says that for a long time prior to the 5th day of September, 1904, plaintiff was a member of the fire department of the city of Terre Haute; that on the 5th day of September, 1904, he became and was an applicant for the place of chief of the fire department of said city of Terre Haute, and was by the board of public safety of said city duly appointed to the office of chief of the fire department, and that upon said day said plaintiff duly qualified, and took possession of the office of chief of said fire department; and that he continued as chief of said fire department until the 3d day of September, 1906, when the said plaintiff surrendered and abandoned said office to John Kennedy, now chief of said fire department, and has not since said time acted as chief of said fire department, nor attempted to fill the office of chief of said fire department.

“(3) Comes now the defendant, and for further answer to the second paragraph of plaintiff's complaint says that for a long time prior to the 5th day of September, 1904, plaintiff was a member of the fire department of the city of Terre Haute, defendant herein; that on the 5th day of September, 1904, plaintiff became an applicant for, and was duly appointed, chief of the fire department of said city, and he continued upon his duties as chief of said fire department until the 3d day of September, 1906; that upon the 3d day of September, 1906, plaintiff surrendered and abandoned the office of chief of said fire department, and as a member of said fire department, and has not been a member of said fire department since said time, nor acted in the capacity of a member of said fire department since said time. Wherefore, defendant asks judgment for costs.”

After the case was venued to Parke county the appellant filed two paragraphs of supplemental complaint, in the first of which he alleged that since the filing of the first paragraph of the original complaint, and up to the time of the filing of the supplemental complaint, he had continued to be chief of the fire force of the city of Terre Haute, and that as such chief his salary had continued to accrue since the filing of the complaint, and that the city refused to pay his salary so accrued, and he prayed judgment for such accrued salary. The second paragraph of supplemental complaint was, in substance, the same as the first, with the exception that the salary accrued since filing the second paragraph of complaint was the salary due him as a member of the fire force of said city.

The appellee filed three paragraphs of answer to the supplemental complaint and each paragraph thereof. The first was a general denial. The second stated, in substance, that on the 3d day of September, 1906, the appellant wholly abandoned and surrendered the office of chief of the fire department of said city, and also at said time wholly abandoned and surrendered the office of member of the fire department of said city, and has not since said date acted as chief of said department or as a member thereof. The third stated, in substance, that the appellant was at all times since the 1st day of September, 1906, an able-bodied man, that he had made no effort since said date to obtain employment, and that, had he done so, he could have obtained employment and could have earned $100 for each month since that date. The appellant replied to the second and third paragraphs of answer to the supplemental complaint. The first and second paragraphs of reply were general denials, and the third paragraph of reply admitted that appellant had performed no services as chief or as a member of said Terre Haute fire department since the order was made by the board of public safety of said city deposing him as chief of said department, but that he had held himself in readiness to perform said services ever since said order was made, and had been prevented from rendering said services by the defendant, its officers, and employés. A separate demurrer to each paragraph of the complaint was overruled, which ruling is assigned in this court as cross-error by appellee. This question will be first considered, for the reason that, if neither paragraph of the complaint states a cause of action, the judgment below would necessarily be affirmed.

The appointment and discharge of the officers and members of the fire force of cities of the class to which appellee belongs is regulated in this state by statute. Section 8779, Burns' Ann. St. 1908, provides for appointment of a board of public safety. The next section (8780) provides that such board of public safety shall make certain appointments, and among such appointments are a chief of the fire force and all other officers, members, and employés of such force. The next section, ...