County of Dekalb v. Cloud ( 1945 )

Under the facts of this case the county policeman was entitled to recover his part of the moneys realized from the confiscation of motor vehicles under the liquor laws which were received by the county within four years of the filing of the action. The action was not to recover moneys due by the county under a statute. Direction is given that amounts not recoverable be written off the verdict.

DECIDED APRIL 21, 1945. REHEARING DENIED MAY 10, 1945. This is the second appeal of this case. See County of DeKalb v. Cloud, 70 Ga. App. 777 (29 S.E.2d 441). On the trial of the case the plaintiff testified as follows: "I was formerly employed by DeKalb County as a policeman. I was employed for about eight years. During that time I seized a large number of automobiles, along with other officers. We reported the seizure. As soon as the cars were seized we would come in and make a detailed report of where, how, etc., it was seized and then the solicitor of the city court would pick it up. Here's the way we would do it. We would seize an automobile, bring it in, get the motor number and tag number, make of automobile, and registration. If it was seized at night, Mr. McCurdy would, pick the report up the following morning. If it was seized in the afternoon the same thing would take place. In other words, it couldn't have been over twenty-four hours before he would come and get the report from the police. I am sure that happened in every instance. As to what the longest period of time was in the handling of those reports on the cars to the solicitor, it couldn't have been over twenty-four hours and that would have been on a week-end. Chief Parker was chief of police when I was first employed by the county. I was paid a salary of $3 a day when I started. Nothing was said to me by anybody about fees on automobiles that were seized. After seizure of the automobiles I was never paid in any instance for seizing the automobile. As to whether I saw any checks, yes, I endorsed the checks when they came from the sheriff's office. We all did that. After that we turned them back into the clerk's office. I do not know what became of the checks after that. I never did make inquiry as to what became of them. You ask me if I had any conversation with Chief Parker about it. I did. I asked him after we had made several seizures why we didn't get our third of the fees of the automobiles and he said, ``Well, if you want to keep your job and work, you just forget about them' because Mr. Mathews at that time was commissioner, and he said ``Mr. Mathews has changed the rule that you get any money from whisky cars, or nothing else. You just get what we pay you.' After that they continued having the checks made out to the officers and we endorsed the checks and signed the receipts for them." [On Cross Examination]: "I worked for the county for about eight years. When I first went on the job I was employed by Chief Parker. He is now dead. We made detailed reports of the car seized. Those reports were in writing. I was first employed at the rate of $3 per day; then was employed supernumerarily. I worked almost every day. I was employed on a daily rate. After I worked as a supernumerary officer I was put on a salary. I think they raised us to $100 per month. I don't know the exact time that was. It was quite awhile after I started, but I finally got up to $140. After I was employed I participated in the seizing of quite a few liquor cars. I started off by seizing one or two, and then the check was presented to me along with the other officers for our share of the reward money. I endorsed that and the other officers endorsed it. We or I wasn't paid any part of that check. After I had endorsed two or three checks, I raised the question of what happened to our part of the money. Chief Parker told me if I wanted to keep my job to just forget about the checks because Mr. Mathews had discontinued that. He said that the salaries were all the officers were supposed to get. I wanted to keep my job. I knew I could be let out at any time that the chief or Mr. Mathews wanted to let me go. I was holding it at their pleasure. I knew that they could discharge me at any time with or without cause and I wanted to keep my job. For that reason I didn't say anything about the checks from then on. I never did until after I left DeKalb County police department. I didn't make any demand for any part of the reward money during the eight years that I was employed in the police department except on the one occasion I have described. Why should I? You ask me if the reason I did not make any demand was because I wanted to keep my job and I knew that I was being paid my salary and that if I raised any question about it my salary would be discontinued — I knew when I was doing that, I was entitled to one third and I knew that I would be discharged if I demanded it, but I knew that it was mine and what I can't understand is why I have to sue the county when they got my money. I knew I was working for a salary, yes. I knew the rewards were there and I knew that I didn't get it. I made a demand once for my part and that was sufficient. After that one time I made no further request for it. The reason I didn't was that I knew that I would be discharged if I did, and I wanted to hold my job and collect my salary." It was stipulated that the chief of police and the sheriff were agents of the county. The money arising from the confiscation of vehicles was distributed by order of court. The officers interested endorsed the checks issued to them jointly by the sheriff, and each gave the sheriff a receipt for his part. The defendant introduced no evidence. The court directed a verdict for the plaintiff for the sum of $1512.80. The county excepts to the order overruling its motion for a new trial as amended. 1. Under the facts of this case there was no voluntary payment or waiver of the funds. The officer's mere failure to insist on receiving the funds because he would lose his job if he demanded such funds does not amount to a gift or a voluntary payment. There was not a voluntary payment because there was no action based on a legal obligation by Cloud to the county to the funds which was present in the minds of both parties at the time. There was no evidence of an intention to waive. The case ofDunn v. Meyer, 193 Ga. 91 (17 S.E.2d 275), is distinguishable, in that in that case there was no immediate threat of the loss of a job unless a lesser amount was agreed on. In that case it was merely shown that it was within the power ofhigher authorities to discharge Dunn. It is further distinguishable, in that in this case Cloud did not accept his salary under an express or implied agreement that it would be in full payment of moneys due him under a contract with the county or owed to him under the law by the county. Estoppel would not apply because there is no evidence that the county was misled to its injury.

2. The court erred in directing a verdict for the plaintiff for the full amount sued for. The plaintiff's cause of action to recover each item arose when the county received it and treated it as its own. Jasper School District v. Gormley, 57 Ga. App. 537 (196 S.E. 232), and cases cited, and under the pleadings in this case recovery of those items received by the county more than four years prior to the filing of the action is barred. The action here is not for money owed by the county to the officer under a statute. The basis of the action is the fact that the county came into possession of the moneys, which under the law were the property of Cloud at the time the county received them, where, under the circumstances, it could not in equity and good conscience retain them. The action is not based on a claim of an indebtedness by the county to Cloud under a statute and therefore the limitation statute of twenty years does not apply. The court erred in directing a verdict for the full amount sued for and in overruling the motion for a new trial.

Direction is given that if the plaintiff will write off from the verdict the amounts not recoverable within ten days from the time the remittitur is returned to the trial court the judgment denying a new trial is affirmed; otherwise it is reversed.

Judgment affirmed, with direction. Sutton, P. J., and Parker,J., concur.