Cox v. Oil City

Opinion by

Me. Chief Justice Steeeett,

This record presents the single question, whether the plaintiff’, formerly a police officer of the city defendant, is entitled to recover compensation for the time he was relieved from actual duty, by reason of sickness. It appears that, upon his own request, and for the reason above stated, he was relieved from duty on September 15, 1891, and continued disabled for the performance of any duty until April 28, 1892, when he was discharged. It is conceded that, in the circumstances, defendant had a right to discharge him when he applied to be relieved from duty in September, 1891, and, if he had been discharged then, he would have had no claim on defendant for any compensation ; but, not having been discharged until the following April, his contention is that he is entitled to compensation in the meantime at the previous rate of $60 per month. In view of the uncontradicted evidence the learned judge of the common pleas thought otherwise, and instructed the jury that they “ must find for the defendant.” This instruction is the subject of complaint in the first specification.

The undisputed evidence shows that for more than a year prior to the time plaintiff asked to be relieved, the rule or regulation that policemen should not receive compensation for the time they were off duty was enforced. This was well known to plaintiff, at least as early as May or June, 1890. At that time he was docked for fourteen days lost time. Having complained of this, the mayor informed him that the regulation would be enforced, and if he did not like it and was unwilling to be governed thereby, he could quit the service. All the men on the police force were informed of the regulation that no one would be paid for time he was off duty. When plaintiff was relieved on September 15, 1891, he was informed by the mayor that the' city would employ a person to take his place while he was disabled. To this he made no objection, and accordingly a person was selected to serve in his stead, and was paid by the city defendant. At the end of that month, plaintiff, without objection, accepted pay for the first fifteen days of the month, during which time he was on duty. In December following, he resumed service, but finding himself unable to continue, he again withdrew and another was appointed to take his place. At the end of that month, he accepted, without objection, the compensation to which he was entitled for the number of days he actually served. His letter of February 20, 1892, to councils, in which he asks “ for one half pay ” for the time he had laid off on account of sickness, “ or such pay as your honorable councils may think just and proper,” shows that he did not regard the city liable to him for the time he was off duty. In view of these undisputed facts, we think the court was warranted in directing a verdict for defendant.

It is unnecessary to consider the proposition contended for by plaintiff, that he is within the rule that public officers are entitled to compensation during continuance in office, notwithstanding they are incapable of performing official duties by reason of involuntary disability. No such question is presented by the evidence in this case. On the contrary, it clearly appears that the plaintiff was in the service of the city with the distinct understanding that he would not be paid for the time he was not on duty; and, by that rule, his right to recover was correctly determined.

The second to the sixth specifications, inclusive, are not according to rule, and therefore not entitled to notice; but, waiving that, there appears to be no error in either of the rulings therein complained of. Nor, was there any error in admitting in evidence the ordinance recited in the seventh and last specification.

We find no error in the record that requires a reversal of the judgment.

Judgment affirmed.