Treu v. Kirkwood

• Decision Date: 01 April 1954
• Docket Number: No. 6282,6282
• Citation: 42 Cal.2d 602,268 P.2d 482
• Court: California Supreme Court
• Parties: TREU v. KIRKWOOD et al. Sac.

Page 482

268 P.2d 482

42 Cal.2d 602

TREU v. KIRKWOOD et al.

Sac. No. 6282.

Supreme Court of California, In Bank.

April 1, 1954.

Edmund G. Brown, Atty. Gen., Wilmer W. Mores and Marcus Vanderlaan, Dep. Atty. Gen., for appellants.

James H. Phillips, Sacramento, for respondent.

EDMONDS, Justice.

From 1947 to 1949, Florenz Treu was a noncivil service employee in the office of the lieutenant governor. By writ of mandate, the state controller and the treasurer have been ordered to approve and pay her claim 'for overtime worked * * * for which petitioner was not compensated and was not given compensating time off.' The appeal is from that judgment.

In her petition for a writ of mandate, Miss Treu alleged that, prior to the time the work was performed, the lieutenant governor had established normal office hours and promised her compensating time off for work beyond those hours. All overtime work was authorized by the lieutenant governor, she said, and she did not receive time off or any other compensation for such work, nor was any offered to or refused by her. According to the petitioner, a payroll claim for the cash equivalent of the accumulated overtime hours at the time of her separation was filed by the lieutenant governor and approved for payment by the State Personnel Board, but the controller refused to issue a warrant.

By their answer, the controller and treasurer denied that any amount was due for overtime. They alleged that Miss Treu was exempt from, and never held a position in, the state civil service. Her salary, they said, was fixed by the lieutenant governor with the approval of the department of finance at a monthly rate which was paid in full and no salary or compensation on any other basis or in any form other than cash was authorized by the department.

Miss Treu was appointed secretary to the lieutenant governor on March 1, 1947, in which capacity she served for one year. She then became executive secretary. Her employment was terminated by resignation on August 1, 1949. In both positions she was exempt from civil service. During her employment, her salary, fixed on a monthly basis with the approval of the department of finance, progressively increased from $275 to $436 per month.

When Miss Treu commenced her work for the lieutenant governor, he fixed office hours from 9:00 a. m. to 5:30 p. m. on week days and from 9:00 a. m. to noon on Saturdays. At the beginning of her employment, he told her, she testified, 'that there was a terrific amount of work in the office and he knew I was going to work a lot of overtime, and that I was going to be paid for the overtime that I worked'. She was informed 'that she would be paid for the overtime as it would be impossible for her to take any time off because of the increased amount of work.'

Thereafter, the lieutenant governor wrote to the department of finance requesting a salary increase for his staff upon the basis that two employees 'have taken over and are doing the work that a staff of three people performed previous to my administration. Because of their willingness to assume this additional responsibility, I feel they should be compensated accordingly'. He suggested that the appropriation for his office was sufficient to increase their salaries and stated: 'I do not intend to further add to may staff as long as Mr. Mydland and Miss Treu continue doing the work that has required three people'. In response to this request, the director of finance approved a salary increase for Miss Treu. All of her salary was paid in full.

Prior to the filing of the claim which is the basis of this proceeding, the department of finance had not fixed or approved salary or compensation for Miss Treu on other than a monthly basis, or in amounts different than her agreed monthly salary, nor did it approve compensation in any form other than cash or fix normal working hours for her. An official record was maintained in the lieutenant governor's office showing hours which she worked in addition to normal office hours. All such work was authorized by the lieutenant governor, and she was at no time granted compensating time off for these hours.

Upon her separation from service, a claim for payment for overtime was approved by the State Personnel Board. While the claim was pending in the controller's office, a letter from the attorney general was forwarded to the controller by the director of finance. The attorney general's letter set forth seven facts upon which it said the validity of the claim would depend. Among these were that the lieutenant governor had established normal hours of work for Miss Treu and that he promised her compensating time off for extra hours worked. The covering letter from the director of finance stated that: 'The seven items * * * already have been substantiated, and there is available in our files the required letters and affidavits making the required substantiation.' Thereafter, the claim was rejected by the controller and this proceeding was commenced.

Upon this evidence, the trial court found the allegations of the petition to be true. Judgment was entered directing that a peremptory writ of mandate issue commanding the respondents to approve and pay her claim. The appeal is from that judgment.

In support of their appeal, the respondents contend that the finding that Miss Treu was promised compensating time off for overtime work is not supported by the evidence. In addition, they say, the judgment may not be sustained upon the theory of a contract to pay cash compensation for overtime work because no such contract was approved by the department of finance as required by statute. They argue that, in the absence of either a valid contract or a statutory provision, Miss Treu's monthly salary was payment in full for all of her services during each month, regardless of the number of hours worked. Other objections made by the respondents are that the trial court failed to find upon certain material issues and that other findings are not supported by the evidence. This court is requested to make findings of fact to conform to the proof. A final contention is that, even if Miss Treu is entitled to a cash payment for overtime work, it should be computed upon the basis of her salary at the time the work was performed, rather than her salary at the time of separation.

Miss Treu relies upon Howard v. Lampton, 87 Cal.App.2d 449, 197 P.2d 69, and Clark v. State Personnel Board, 56 Cal.App.2d 499, 133 P.2d 11, holding that a state employee is entitled, in the absence of statute, to payment upon separation from service for properly authorized overtime work. She also contends that a promise of compensating time off is not a prerequisite to payment for overtime. Even if it is, she says, the promise by the lieutenant governor to pay her for overtime work may be construed as a promise to give her compensating time off. In addition, she disputes each of the other contentions of the respondents.

In Martin v. Henderson, 40 Cal.2d 583, 255 P.2d 416, and Redwine v. Henderson, 40 Cal.2d 583, 255 P.2d 416, the Howard and Clark decisions were disapproved insofar as they determine that a state employee, in the absence of specific statutory authority, is entitled to payment for accrued overtime upon separation from service. Therefore, the question here is whether there was contractual or statutory authority for payment to Miss Treu for overtime services.

The petition specifically alleges a promise by the lieutenant governor to give Miss Treu 'compensating time off for overtime hours worked in addition to her normal hours of work'. The court found that the promise was made. However, the proof, in the form of a letter from the lieutenant governor to the department of finance and Miss Treu's own testimony, shows conclusively that she was not promised time off. She was told that 'it would be impossible for her to take any time off because of the increased amount of work'. The promise made to her was 'that she would be paid for the overtime'.

The respondents contend that this amounted to a failure of proof within the meaning of section 471 of the Code of Civil Procedure, rather than a mere variance. They rely upon Gillin v. Hopkins, 28 Cal.App. 579, 580-582, 153 P. 724, which held that evidence of a contract to accept payment in stock constituted failure of proof of a cause of action upon an agreement to pay a designated sum of money. The situation is analogous to that here. Obviously, a promise to grant compensating time off is far different from a promise to pay cash for overtime work. However, '(n)o variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.' Code Civ.Proc. § 469.

'The code also provides that the court must, in every stage of an action (and that means on appeal, as well as in the trial of the cause), disregard any error, improper ruling, or defect in the pleadings or proceedings, which, in the opinion of the court, does not affect the substantial rights of the parties. It must appear from the record that the error, improper ruling, or defect was prejudicial and caused substantial injury before the judgment rendered may be reversed or be held to be affected by it; and it must further appear that a different result would have been probable if such error, ruling, or defect had not occurred or existed. Code Civ.Proc. § 475. Not only do these code sections require this court, under such circumstance, to determine from an examination of the entire record, whether or not there has been a miscarriage of justice before reversing a judgment, but the state Constitution is equally mandatory and imperative. Const., § 4 1/2, art. 6. It therefore indubitably follows that it is not every variance that will necessitate the overthrow of a judgment.' Murnane v. Le Mesnager, 207 Cal. 485, 495, 279 P. 800,...