Tumey v. City of Detroit

• Citation: 316 Mich. 400,25 N.W.2d 571
• Decision Date: 06 January 1947
• Docket Number: No. 38.,38.
• Parties: TUMEY et al. v. CITY OF DETROIT, DETARTMENT OF STREET RAILWAYS.
• Court: Supreme Court of Michigan

316 Mich. 400

25 N.W.2d 571

TUMEY et al.

v.CITY OF DETROIT, DETARTMENT OF STREET RAILWAYS.

No. 38.

Supreme Court of Michigan.

Jan. 6, 1947.

Appeal from Circuit Court, Wayne County; Vincent M. brennan, judge.

Consolidated actions by Harry A. Tumey and others against the City of Detroit, Department of Street Railways, to recover ‘Emergency Contributions from Salaried Employees' withheld from plaintiffs' salaries by the defendant. From judgments entered for plaintiffs after defendant's motion for judgments notwithstanding verdict was granted in part and denied in part, the defendant appeals and the plaintiffs cross-appeal.

Order granting in part motion for judgments notwithstanding the verdict set aside and cases remanded with directions for entry of order denying motion, and for entry of judgments in accordance with verdict.Before the Entire Bench.

William E. Dowling, Corporation Counsel, and Clarence E. Page, Asst. Corporation Counsel, both of Detroit, for appellant.

Thomas F. Chawke, of Detroit, for appellees and cross-appellants.

CARR, Chief Justice.

Plaintiff Harry A. Tumey was employed by the city of Detroit, department of street railways, during the period from January 1, 1932, to October 1, 1933. Claiming that deductions during said period were made from his salary under an arrangement whereby he was entitled to recover the amount thereof, he brought suit in the circuit court of Wayne county. The declaration alleged that defendant withheld from plaintiff's salary five per cent during the months of January and February, 1932, 10 per cent thereafter until August 1, 1932, 55 per cent during August, 10 per cent from September 1, 1932, until January 1, 1933, and 24.3 per cent thereafter until October 1, following. It was further alleged that plaintiff was promised that when funds became available the amounts so withheld would be repaid, that plaintiff performed his services in accordance with such agreement, that funds became available to make payment in accordance therewith, but that defendant refused to discharge the obligation claimed. The declaration, also, included the common counts in assumpsit.

Defendant filed its answer denying the existence of any contract or agreement to pay plaintiff the sums deducted from his salary and asserting that such salary was in fact reduced from time to time by the street railway commission. Defendant further claimed that plaintiff had been paid all salary owing to him and, hence, that there was no further liability on defendant's part. The statute of limitations was also pleaded.

Other parties, employees of defendant during the period in question, brought actions of like character, the pleadings and issues being identical, except as to names and amounts claimed, with those in the suit started by Mr. Tumey. Seventeen cases were started by administrators, either general or special, of the estates of deceased employees. All suits, 286 in number, were commenced during the period beginning March 27, 1942, and ending December 7, 1943. By agreement of counsel the cases were consolidated for trial before a jury.

At the conclusion of the proofs, defendant moved for a directed verdict, claiming in substance that there were no factual issues to be submitted to the jury and that under the showing made plaintiffs were not entitled to recover. The motion was taken under advisement under the provisions of Comp. Laws 1929, § 14531, as amended by Act No. 44, Pub. Acts 1939, Comp. Laws Supp. 1940, § 14531, Stat.Ann. 1946 Cum.Supp. § 27.1461, and the questions in issue were submitted to the jury, which returned a verdict in favor of plaintiffs for the full amount of their claims, with interest from July 1, 1939. Thereafter, defendant moved for judgments notwithstanding the verdict, which motion was granted in part and denied in part. Separate judgments were entered for plaintiffs in accordance with the determination of the trial court. All parties have appealed.

Pertinent provisions of the charter of the city of Detroit are found in title 4, chap. 13, which provides for the operation and maintenance of a street railway system. A Board of Street Railway Commissioners was created pursuant to such provisions, with full authority, subject to the approval of the mayor, to supervise, manage and control the system, ‘as fully and completely as if said board represented private owners.’ Authority was specifically granted to appoint a general manager and other employees, and to make payment of expenses out of the earnings of the railway system. The charter provisions in force during the period involved in these cases were sufficiently broad in scope to cover all matters concerning employees, and other details of operation.

In the latter part of 1931, it was considered necessary by the street railway commission to reduce costs of operation to accord with reductions in income. December 22, 1931, a resolution was adopted by the street railway commission, referring to 33 salaries positions, and directing the general auditor to ‘deduct 10 per cent from the salaries after each of the positions shown above and credit the amount so deducted to an account to be termed: ‘Emergency Contributions from Salaried Employees.” On December 29th, following, a second resolution was adopted, effective as of January 1, 1932, providing for a like deduction of 10 per cent, applicable to all positions carrying a salary of $250 a month or more, and five per cent from all salaries from $100 to $225 a month, inclusive. As in the prior resolution all such deductions were required to be credited to ‘Emergency Contributions from Salaried Employees.’ Under date of January 6, 1932, the general manager of the street railway system issued a notice to employees with reference to the action of the commission, stating therein that deductions from salaries would be made accordingly, and that the amounts thereof would be credited to the account designated.

By ordinance No. 146-C, approved January 6, 1932, the common council of the city of Detroit provided that all officers and employees of said city, other than those of the street railway system, should contribute to the city a sufficient number of days' work each pay period so that the amount of their contributions would equal 10 per cent of the salaries or wages of officers and employees generally, and an additional 10 per cent of the salaries or wages of officers or employees receiving in excess of $4,000 per year. Subsequently, ordinance No. 166-C, was adopted, referring to the prior ordinance and providing for further contributions by officers and employees of the city. The construction of said ordinance No. 166-C, was before this court in Detroit Municipal Employees Ass'n v. City of Detroit, 310 Mich. 480, 17 N.W.2d 858, in which it was held that the deductions from salaries and wages made thereunder did not constitute reductions in pay and were, in fact, contributions that were to be repaid later when payment became possible.

On the trial in circuit court plaintiffs contended that they were given assurances by the general manager and by other supervisory officers of the street railway system that they would receive the sums deducted from their respective salaries as set forth on the payrolls of the defendant when funds became available for that purpose. It was further contended that the services were rendered and accepted, in reliance on such representations and that, under the circumstances disclosed by the proofs, the street railway commission was bound by the statements of its general manager on the ground of express or implied authority, or of ratification. It was also claimed that additional deductions, subsequently authorized, were made pursuant to the policy evidenced by the alleged agreement.

At a meeting of the commission held March 1, 1932, another resolution was adopted, referring to ordinance No. 146-C and providing for the payment of salaries in strict compliance therewith. This was followed July 28, 1932, by action requiring, in terms, that during the month of August following, the pay of salaried employees, other than those on half time, be reduced an additional 50 per cent; and on December 22, 1932, on the recommendation of the general manager, a further reduction in the sum of 14.3 per cent was authorized. The reductions, or deductions, contemplated by the various resolutions of the commission, other than that applicable solely to the month of August, 1932, continued in effect until October 1, 1933.

The trial court submitted to the jury the question whether, under all the proofs, there was a contract or agreement obligating defendant to pay to plaintiffs the sums deducted from their salaries, pursuant to resolutions of the street railway commission, when funds became available for such payment. The jury was charged, in substance, that plaintiffs could not recover unless such agreement was made as claimed. A careful examination of the entire record brings us to the conclusion that the issue was factual and that it was properly submitted to the jury for determination.

The action of the street railway commission in establishing the account, designated as ‘Emergency Contributions from Salaried Employees,’ and carrying on the payrolls the salaries of the plaintiffs in the amounts originally fixed therefor, was not consistent with the claim of the defendant that the salaries were, in fact, reduced. It further appears that warrants, signed by the president of the commission, were issued to the city treasurer, in the full amount of the payrolls; that the city treasurer made deposits in the payroll account in such sums as to cover the salaries in full; that the certification to the civil service commission of salaried employees set forth the respective salaries payable to each in accordance with the payrolls without reference to deductions or reductions; that the general ledger of the defendant, in the account entitled ‘Wages Payable’ carried the full...