Schoonover v. City of Viroqua

• Decision Date: 15 February 1944
• Citation: 12 N.W.2d 912,244 Wis. 615
• Parties: SCHOONOVER v. CITY OF VIROQUA.
• Court: Wisconsin Supreme Court

244 Wis. 615

12 N.W.2d 912

SCHOONOVER

v.CITY OF VIROQUA.

Supreme Court of Wisconsin.

Feb. 15, 1944.

Appeal from an order of the Circuit Court for Vernon County; R. S. Cowie, Judge.

Reversed.

Action by Ellis A. Schoonover against the city of Viroqua to recover for ‘overtime’ served as a policeman. From an order entered September 22, 1943, overruling a demurrer to the complaint, the defendant appeals. The controlling facts are stated in the opinion.

Wayne B. Schlintz, of Viroqua, and Hale & Skemp, of La Crosse, for appellant.

J. Henry Bennett and Olga Bennett, both of Voroqua, for respondent.

Ronald A. Padway, of Milwaukee, Amicus curiae.

FOWLER, Justice.

The case is an appeal from an order overruling a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The action is based on sec. 62.13(7), (7m) and (7n), Wisconsin Stats., set out in the margin.¹ They provide that the council of cities of the fourth class, of which the defendant is one, shall fix the compensation of policemen; that the council shall provide for and the chief of police shall assign to policemen one day of rest in every 192 hours; that the council shall provide for a working day for policemen of not more than eight hours; that in emergencies the time of service may be extended; and that when the time of service is extended by the chief of police during an emergency, when the emergency has ceased additional days of rest shall be allowed for all overtime served during its continuance.

The city council had not by ordinance or resolution complied with either sec. 62.13(7m) or (7n), but had fixed the salary of night policemen at $100 per month. The plaintiff served as a night policeman continuously for three years and eight months. During this time he worked eleven hours each night of service, and was allowed only two nights off each month. During this period of service the plaintiff did not demand payment for overtime served, or additional nights of rest. No emergency existed during his period of service. He accepted this monthly salary and his allotment of nights off without objection or protest that he was entitled to pay for either extra time actually served or for days off less than one in 192 hours, and no express contract was entered into between him and the city for pay for either.

The plaintiff claims (1) that he is entitled to receive pay for the three hours' overtime per day actually served; and (2) for the day's rest less than one in 192 hours that he did not get.

(1) On this point the case is plainly ruled by Vogt v. City of Milwaukee, 99 Wis. 258, 74 N.W. 789. An ordinance of Milwaukee provided that eight hours should constitute a full day's work for city employees working and paid by the day. The ordinance neither provided for pay for overtime nor fixed a daily wage. The plaintiff worked for a time eight hours day and thereafter worked twelve hours. No agreement was made as to the daily wage or overtime. The plaintiffwas put on the payroll at $2.22 per day, he accepted his pay at that rate without protest, except that on receiving his first pay check after being put to work twelve hours per day he asked for pay for his extra time, but none was allowed and he accepted all subsequent checks without objection or protest. On discontinuance of his service he brought suit to recover pay for his overtime at the rate of $2.22 for every eight hours worked. The court held that the effect of the ordinance was to give an employee the option to refuse to work over eight hours a day or to get an express agreement for pay for his overtime, and that without such agreement there could be no recovery. This is the general-almost the ‘invariable’-rule. See note and cases cited and stated in 65 L.R.A. 46. In 31 Am.Jur. at p. 1067, it is said, citing United States v. Martin, 94 U.S. 400, 24 L.Ed. 128, and Woods v. City of Woburn, 220 Mass. 416, 107 N.E. 985, Ann.Cas.1914A, 492: ‘An employe of the government who works for a period exceeding that prescribed by statute for a day's work, in absence of an express contract therefor or of any suggestion that payment received on the basis of the statutory day is not sufficient, cannot afterwards recover for the additional time.’

The rule is of course otherwise where the right to recover for overtime is declared by statute, United States v. Post, 148 U.S. 124, 13 S.Ct. 567, 37 L.Ed. 392, 396.

In notes in A.L.R. Vols. 25 at p. 238 and 107 at p. 713, the liability of employers for overtime, excluding governmental and municipal employees, under statutes merely fixing the hours constituting a day's labor is treated, and cases are there cited and stated holding that the liability does not exist in absence of an agreement therefor.

In the Vogt case, supra, a New York decision, McCarthy v. Mayor, etc., of City of New York, 96 N.Y. 1, 48 Am.St.Rep. 601, is cited in support. The plaintiff cites Wright v....