Summary
In Allenbaugh v. City of Canton, 137 Ohio St. 128, involving a civil service employee, it was held that before such employee may waive any right he has under the law, in order to establish a waiver, the evidence must be sufficient to warrant a court in saying that his intent to waive is unmistakable, and a right conferred by statute need not constantly be asserted in order to be preserved.
Summary of this case from State, ex Rel. Brubaker v. HardyOpinion
No. 27838
Decided June 26, 1940.
Waiver — Statutory rights — Silence and duty to speak — Civil service employee — Evidence of unmistakable intent to waive right necessary — Constant assertion of right unnecessary — Estoppel in pais strictly applied.
1. Before silence will be construed as a waiver of rights expressly conferred by statute, the duty to speak must be imperative.
2. While a civil service employee may waive any right he has as such under the law, in order to establish a waiver the evidence must be sufficient to warrant a court in saying that his intent to waive is unmistakable.
3. A right conferred by statute upon a civil service employee need not constantly be asserted in order to be preserved.
4. The doctrine of estoppel in pais must be strictly applied and will not be deemed to arise from facts which are ambiguous and subject to more than one construction.
APPEAL from the Court of Appeals of Stark county.
This action originated in the Court of Common Pleas of Stark county, Ohio, when the plaintiff, a civil service employee of the Canton fire department, filed an action to recover from the defendant, the city of Canton, Ohio, the sum of $240, which he claims is due to him in salary for certain periods he was laid off without pay, in violation of the civil service laws which require reductions in the force of firemen employed by a city to be made by laying off the youngest employees in point of service.
The petition of the plaintiff alleged that he was a duly appointed and qualified fireman in the fire department of the city of Canton, and had been since the date of his appointment on February 27, 1919, and that his salary was set by ordinance of the city of Canton at the sum of $2,040 annually.
Plaintiff then alleged that on April 2, 1932, the city of Canton, through its duly authorized officers, superior to the plaintiff, without any reason or authority in law or fact, caused the plaintiff to leave his employment, and, by the orders of his superior, not to return to his employment as fireman until April 17, 1932; that during this period he was able, willing and qualified to perform his services for the city of Canton as such fireman, but was deprived of doing so by said city; and, further, that the city refused to pay him his compensation under the ordinance for this period of fifteen days, amounting to $85.
Plaintiff further alleged that likewise, on June 1, 1932, he was again deprived of his work for a period of fifteen days from June 1, 1932, to June 15, 1932, inclusive, and that the city failed and refused to pay him for this fifteen days his monthly salary in the sum of $85, although he was at all times able, ready and willing to perform the work in accordance with his civil service employment.
Plaintiff then alleged that on the 25th day of July, 1932, the council of the city of Canton, Ohio, by ordinance, reduced his salary to $1,680 per annum, payable semi-monthly, and that on August 1, 1932, the city of Canton again caused the plaintiff to leave the fire department, depriving him of his employment without any legal authority or right for a period of fifteen days up to and including August 15, 1932; that the plaintiff, during good behavior and while able to perform his work, had a legal right to hold the employment and perform his services without any molestation or interference on the part of the defendant, as provided by the civil service laws of the state of Ohio; that he was always ready, able and willing to perform his part as fireman, but was prevented by the defendant from doing so without any cause or reason on his part; and that these actions of the city of Canton were without his consent.
Plaintiff further alleged that the city of Canton failed, neglected and refused to pay his salary as provided by ordinance, amounting to $70 for this period. He then asked judgment against the defendant in the sum of $240, which amount he claims is due him for the three periods he was laid off.
The answer filed by the defendant, after admitting some of the allegations contained in the petition, denied generally all other statements, allegations and averments of the petition not therein specifically admitted to be true, and contained several affirmative defenses. The city claimed, in its second defense, that the plaintiff, by his action, had waived any right he might have to salary for these periods. In its third defense, the city claimed that the plaintiff is now estopped from repudiating his voluntary and intentional lay-off without pay. For its fourth defense, the city claimed that the plaintiff remitted his salary by agreement; and in its fifth defense the city alleged that there was not a sufficient appropriation for the year 1932 to pay these salaries.
These defenses of the city were put in issue by the plaintiff's reply.
The case came on for trial and the plaintiff and defendant stipulated that the plaintiff was a fireman under civil service; that the ordinances, as pleaded, were correct; that the salary, as pleaded by the plaintiff, was correct; and that the plaintiff was not paid for the periods set forth in the petition. There was further stipulated, however, that the pay roll ledger for the year 1932, on line 77, showed the plaintiff's name, followed by the words "off without pay from April 2 to 17," followed by the signature of the plaintiff; and that in this book for the first half of August, the plaintiff's name appeared on line 78, followed by the words "off without pay from July 31 to August 15," followed by the signature of the plaintiff. That the words "off without pay" were stamped on line 78 before plaintiff affixed his signature. It was further stipulated that the city was faced with an operative deficit in 1932 of about $400,000, and that by ordinance it had reduced the appropriation for regular firemen as a result of these lay-offs from $188,000 to $158,000. At the end of the stipulation, the plaintiff rested and the defendant proceeded.
Evidence was offered that Mr. H.H. Emmons, who was the director of public safety of the city of Canton in the year 1932, and testified for the defendant, called together the firemen at a meeting held in firehouse No. 1; that the plaintiff, Mr. Allenbaugh, attended this meeting; and that at the meeting, the safety director talked to the firemen and told them of the precarious financial condition of the city and suggested to them that they agree to be laid off temporarily for a vacation period during the summer, which would prevent the city from having to lay off the younger firemen, as would be required under the civil service law, and would also prevent a reduction in salaryfor "we didn't want to reduce the salary of firemen because once you get it down it would be hard to get it back up again."
Mr. Emmons further testified that at the conclusion of his talk he had said something like this: "Now after I have explained this to you gentlemen, if any of you feel that isn't fair and don't want to go along with us on this proposition I would like for you here perfectly to so state so we may know your views about this matter"; and that at this time no remarks were made by any of the firemen present.
After this meeting, the lay-offs were effected, and the plaintiff was laid off for the periods he claimed in his petition.
Evidence was then introduced to show that the city's finances were rearranged in accordance with the savings effected by these lay-offs, and the defendant then placed in evidence the pay roll books, showing that the plaintiff had signed his name to the pay roll books as pleaded in the answer.
At the conclusion of the case, by leave of court, the plaintiff was allowed to offer in evidence, by stipulation, the rule of the fire department, in effect prior to the year 1932 and during 1932, "that no fireman shall leave the city during their day of rest and day off without leave of the superior officers, and be subject to call at any times for duty." At the conclusion of the defendant's case, the court rendered judgment for the plaintiff. This judgment was affirmed by the Court of Appeals, with a memorandum opinion, which states: "* * * appellant concedes the facts as pleaded in the petition and relies upon waiver and estoppel. The record, however, shows that the very thing upon which waiver and estoppel is predicated, to wit: The avoidance of the passage of a salary reduction ordinance, cannot avail the city, because on the twenty-fifth day of July, 1932, council did enact a salary reduction ordinance."
The case is before this court upon the allowance of a motion to certify the record of the Court of Appeals.
Mr. Alexander S. Greenbaum, for appellee.
Mr. Paul G. Weber, city solicitor, for appellant.
The case revolves around the question whether the plaintiff has waived, or is by his conduct estopped from denying that he has waived, his rights under that part of Section 486-17 b, General Code, which reads:
"Whenever it becomes necessary in a police or fire department, through lack of work or funds or for causes other than those outlined in Section 486-17 a of the General Code, to reduce the force in such department, the youngest employee in point of service shall be first laid off."
The record discloses that at the meeting of firemen referred to in the statement of facts, Mr. H.H. Emmons, who was the director of public safety of the city of Canton, announced, at the conclusion of his address: "Now after I have explained this to you gentlemen, if any of you feel that isn't fair and don't want to go along with us on this proposition I would like for you here perfectly to so state so we may know your views about this matter." Neither the plaintiff, nor anyone else attending the meeting, arose to express an opinion concerning the director's plan temporarily to lay off firemen in a manner different from that prescribed by Section 486-17 b, General Code, quoted above. It is not without significance that notwithstanding the statement of the safety director that the proposed temporary arrangement would obviate the necessity of the reduction of salaries, an ordinance was enacted July 25, 1932, making the very reduction of salaries it was promised would not be made.
Did plaintiff's silence constitute a waiver of his rights under the statute?
The rule is that mere silence does not amount to a waiver where one is not under a duty to speak. 40 Ohio Jurisprudence, 1239, Section 5, citing List Son Co. v. Chase, 80 Ohio St. 42, 88 N.E. 120, 17 Ann. Cas., 61. Was plaintiff under any legal duty to speak in order to protect and preserve his legal rights under the statute?
Before silence will be construed as a waiver of rights expressly conferred by statute, the duty to speak must be imperative, and the silence must clearly indicate an intent to waive, or be maintained under such circumstances that equity will impute thereto such intent. Where, however, the silence is, under the circumstances, susceptible of more than one interpretation, the waiver will not be inferred therefrom.
In the instant case, the statement made by the director of public safety amounted to no more than an invitation for an expression of opinion by those who disagreed with his proposal. Silence, under the circumstances, may have been due to any one of a number of considerations, such as sheer timidity, deference to a superior officer, indecision and the like. The silence was not so clearly indicative of assent as to justify the defendant in the belief that by their silence the firemen waived their rights under the statute, or to justify reliance upon such belief. If the defendant was at all misled, it was misled, not by plaintiff's silence, but by its own misinterpretation of his silence.
A right conferred by statute upon a classified civil service employee need not constantly be asserted in order to be preserved. While it is true that a civil service employee may waive any right he has as such, in order to establish a waiver the evidence must be sufficient to warrant a court in saying that his intent to waive is unmistakable. In our opinion, under the circumstances disclosed in the record, such intent cannot be attributed to plaintiff's silence, which, as said above, is more consistent with indecision than it is with an intent to waive. Such silence will not work an estoppel.
The doctrine of estoppel in pais must be strictly applied (19 American Jurisprudence, 643, Section 43) and will not be deemed to arise from facts which are ambiguous and subject to more than one construction. Hall et al., Trustees, v. Henderson, 126 Ala. 449, 490, 28 So. 531, 61 L.R.A., 621, 85 Am. St. Rep., 53.
The record discloses that the pay roll ledger for the year 1932 showed, on line 77, the plaintiff's name, followed by the words "off without pay from April 2 to 17," followed by the signature of the plaintiff; that for the first half of August of the same year, the words "off without pay from July 31 to August 15" followed plaintiff's name, which were in turn followed by plaintiff's signature; and that, in the latter case, the words "off without pay" were stamped on the ledger before the plaintiff affixed his signature.
Defendant contends, in substance, that the conduct of plaintiff in accepting checks for lesser amounts than due, without protest, and signing his name next to the words "off without pay," was evidentiary of an intent to waive his right to his salary for the periods of his lay-offs.
We do not consider this contention as tenable. The words "off without pay" were those of the defendant. Had it been defendant's intention to effect a waiver of the right to the unpaid portion of the fixed salary, words expressive of that intent could have been used.
This case is unlike that of State, ex rel. Hess, v. City of Akron, 132 Ohio St. 305, 7 N.E.2d 411. In that case, the plaintiff accepted a reduction in pay and signed a pay roll sheet "56 successive times," which recited "am't due" or "received pay in full to date," clearly indicating that the amount received was the amount due and was received in full payment.
In the instant case, the words "off without pay" can in no manner be construed as meaning "amount due" or "received pay in full to date." Consequently, the Hess case is not here applicable.
The signing of a pay roll ledger by a civil service employee next to the words "off without pay" does not, in and of itself, constitute a waiver of his right to claim the unpaid salary for the periods covered by such lay-offs.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.