Opinion
Page __
__ Cal.App.2d __ 240 P.2d 27 JARVIS v. HENDERSON, Director of Department of Motor Vehicles, et al. Civ. 7948. California Court of Appeals, Third District Jan. 21, 1952.Hearing Granted March 20, 1952.
Rehearing Denied Feb. 13, 1952.
[240 P.2d 29] Wilmer W. Morse, Deputy Atty. Gen., for appellants.
Desmond, Miller & Artz, Sacramento, for respondent.
SCHOTTKY, Justice pro tem.
Petitioner, a former State Traffic Officer, brought mandate proceedings to compel payment to him by the State of claims for overtime worked by him between 1935 and 1939 while acting as chauffeur and bodyguard for the then Governor of the State, he having been assigned to perform said duties by his superior officers in the State Highway Patrol.
Following a trial, judgment was rendered in favor of petitioner for $7,225.82 as a lump sum payment for overtime hours worked by him between January 1, 1935 and August 31, 1939 as a State Traffic Officer, and for an additional sum of $788.90 as a lump sum payment for days worked by petitioner between January 1, 1935 and December 31, 1938, which days should have been days off or holidays. Both parties have appealed from the judgment, the appeal of petitioner being upon the grounds (1) that he was entitled on separation in 1948 to a lump sum payment for all overtime, based on his final compensation; and (2) that the trial court abused its discretion in denying his motion to amend his petition.
There is no dispute as to the facts, which, as found by the trial court, are as follows:
Petitioner was appointed a state traffic officer in 1931, and until July, 1934, he performed the regular and usual duties of that office, namely, patrolling the highways in connection with enforcement of laws regulating the operation of vehicles.
In July, 1934, in response to an order of the Governor to furnish him with a personal bodyguard and chauffeur, petitioner's superior officers in the California Highway Patrol directed him to report to the Governor's Office; accordingly, the petitioner reported to Captain Castle of the California Highway Patrol, who was then stationed in the Governor's Office, and then presented himself to the Governor, who directed him to act as his personal bodyguard and chauffeur. Continuously from July, 1934, to January 5, 1939, the petitioner acted as bodyguard and chauffeur to the Governor, working such days and hours as the Governor directed. On January 6, 1939, petitioner's assignment to the Governor's Office terminated, and he then returned to the regular and usual duties of state traffic officer, which he continued to perform until January 31, 1948, when he resigned. During all times petitioner's salary was fixed on a monthly basis, and it has been duly and regularly paid.
During the period petitioner worked as bodyguard and chauffeur for the Governor, eight hours of work in any 24-hour period was established by the appointing authority for the California Highway Patrol as a normal day's work for all members of the Patrol, and all time worked beyond eight hours was overtime; during the same period it was the understanding and agreement that traffic officers should have one day off a week plus a day off for each holiday worked; hours and days worked in addition to this schedule were to be compensated for by compensating time off to be taken at such times as, in the opinion of the immediate superior officer, would not jeopardize the efficiency of the service. These matters were elements of the employment contract which the appointing power for the Patrol had with the petitioner from the time of his original employment in 1931.
During the period between January 1, 1935, and August 31, 1939, petitioner worked 7,682 extra hours; between January 1, 1935, and December 31, 1938, he worked, in addition, 129 extra days. On August 21, 1945, the appointing power for the Patrol, on the grounds, among others, that it was the general understanding among members of the Patrol during the period prior to September 29, 1943, that an officer's salary was in full for all services performed by him including any performed beyond the hours ordinarily worked, and that there was no law providing [240 P.2d 30] for compensation for overtime worked prior to 1943, denied liability for the extra hours and notified the petitioner that overtime credit would not be recognized or entered, on the books of the department. All overtime hours claimed to have accumulated prior to September 29, 1943, were canceled. The appointing power further on August 5, 1942, denied compensating time off for the 129 extra days on the grounds that the use of said days had previously been suspended.
We shall first discuss respondents' appeal from the judgment.
Respondents' Appeal
Respondents' first and second main contentions are:
First, that under the law as it stood at the time the work was performed, payment of petitioner's monthly salary was payment in full for all services that might be required of him; that there can be no such thing in the absence of statute as 'extra' hours or days so as to give rise to a monetary obligation over and above an employe's monthly salary.
Second, that the employer-employee relationship in public service is governed by statutory law and administrative regulation, and the appointing power was without jurisdiction to contract with the petitioner in any manner so as to obligate the State for compensation in addition to his fixed salary.
These same contentions were made by counsel representing respondents in the case of Martin v. Lampton (Redwine v. Lampton), Cal.App., 240 P.2d 21. In those cases the petitioners were likewise Highway Patrol officers, and the factual situations, so far as these contentions are concerned, were not substantially different from the instant case. Upon the authority of Pohle v. Christian, 21 Cal.2d 83, 130 P.2d 417, Clark v. Personnel Board, 56 Cal.App.2d 499, 133 P.2d 11, and Howard v. Lampton, 87 Cal.App.2d 449, 197 P.2d 69, we decided adversely to respondents' contentions, and we refer to our opinion in those cases for a discussion of these contentions of respondents.
Respondents' third main contention is that if, as found, a valid contract was made for compensating time off, petitioner's claims for the cash value on separation from service are barred by the statutes of limitation.
This same contention was made in the Martin (Redwine) case. We discussed it fully in those cases and determined it adversely to respondents' contention, and we refer to our opinion therein.
Respondents' fourth major contention is: That under the law, petitioner, in the Governor's Office, was not working as a state traffic officer but rather as an employee of the Governor, and compensation for the work there performed must be paid from the appropriation for the support of that office; that petitioner does not have a valid claim against the funds of the California Highway Patrol for services rendered to the Governor, and particularly he does not have a claim over and beyond his fixed salary as state traffic officer.
This contention has little merit and it is difficult to understand how, in view of the record in this case, it can be urged seriously.
The findings clearly show that the petitioner held the position or office of a state traffic officer in the California State Highway Patrol for the whole of the period in question. They further show that the petitioner reported to Captain Castle of the Highway Patrol, who was then stationed in the Governor's Office, upon orders from petitioner's immediate superior, Captain Little. Captain Castle then directed petitioner to the Governor personally and apparently told him to take further specific orders from the Governor himself.
The findings further show that continuously from the period January 1, 1931, to August of 1939, petitioner was paid a salary through the Highway Patrol as a state traffic officer. The evidence made it clear that he wore the uniform of such an officer at all times. A stipulation on file herein indicates that petitioner prepared daily activity reports which were sent to Headquarters of the California [240 P.2d 31] Highway Patrol showing his hours on duty and the days he worked which should have been holidays or days off.
The evidence further proved that within the California Highway Patrol 'general duty' was regarded as patrolling the highways, making arrests, keeping the peace, etc.; 'special duty,' on the other hand, might consist of any particular job assigned to a traffic officer--for example, strike duty, fire duty, earthquake or riot duty or duty involving a particular traffic tie-up. Both types of duty were recognized as normal to the work of the State Highway Patrol. Certainly one did not lose his status as a member of said Patrol simply because his type of duty was changed from general to special.
It is a matter of common knowledge that for many years a member of the Highway Patrol has been assigned by the Department to the Governor, and we do not believe that such assignment is in excess of the powers of the chief of the California Highway Patrol, or that, by virtue of such assignment and the performance of service as chauffeur and bodyguard for the Governor while wearing the uniform of a traffic officer, petitioner was any less a member of the California Highway Patrol. And as such member of the Highway Patrol he was an employee of that department and entitled to be paid out of the funds appropriated therefor.
No other contentions of respondents require discussion.
Petitioner's Appeal
The petition filed in this case alleges 7,711 hours of overtime work at $1.20 per hour based on a salary of $230 per month, and 129 days of overtime work worth $9.60 per day. A writ is prayed for to compel payment on that basis.
It was stipulated that during the period the alleged overtime was worked the petitioner's salary was fixed on a monthly basis in amounts ranging from $175 per month at the beginning to $200 per month at the end. The court found accordingly. The trial court found the value of the overtime to be in accordance with these amounts and ordered a writ to issue accordingly.
Following the submission of the cause for decision and after the court made its minute order that judgment be for plaintiff, the petitioner filed a notice of motion to amend his petition and to set aside the submission of the cause for purposes of introduction of such evidence in support of the amendments as should be necessary. The purpose of the proposed amendments was to obtain a recovery on the basis of a salary of $325 per month for a five-day week rather than on the basis of a salary ranging from $175 to $220 per month for a six-day work week. These motions were denied.
The petitioner has appealed from so much of the judgment as denied him an additional recovery on the basis of his proposed petition, contending that under Government Code Section 18005 he was entitled, on separation in 1948, to a lump sum payment for all overtime based on his final compensation, and that the trial court abused its discretion in denying his motions to amend his petition and set aside the submission.
Respondents, in answer to petitioner's contention, argue first that the trial court did not abuse its discretion in denying petitioner's motions, and second, that even if the amendment were permitted petitioner could not recover the additional amount.
The record shows that the action was filed on May 3, 1948, and that it was tried on March 30, 1949. The court ordered judgment for petitioner as prayed for, on December 14, 1949. On January 3, 1950, petitioner filed his motion to amend his petition.
It thus appears that a year and eight months elapsed in this case between the filing of the petition and the application to amend it. There appears to be no excuse for the delay. The trial had been completed and the court had ordered judgment in accordance with the prayer of the petition. The granting of the motion would have required the reopening of the case for further testimony. Upon this state of the record petitioner urges this [240 P.2d 32] court to hold that the trial court abused its discretion when it denied his motion to amend his petition and to set aside the submission of the cause.
It is too well settled to require the citation of authorities that the matter of allowing an amendment to a pleading after the issues have been formed is ordinarily within the discretion of the trial court. To justify an appellate court in holding that a denial of such an amendment by the trial court was prejudicial error requiring a reversal of such order, there must appear to be a clear abuse of discretion.
The general rule is well expressed in Berry v. Chaplin, 74 Cal.App.2d 669, at page 672, 169 P.2d 453, at page 456: 'In a legal sense discretion is abused whenever in the exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered. Makzoume v. Makzoume, 50 Cal.App.2d 229, 231, 123 P.2d 72. An abuse of discretion is never presumed but must be affirmatively established by the party complaining of the provisions of the order. Wilder v. Wilder, 214 Cal. 783, 785, 7 P.2d 1032; Kaiser v. Hancock, 25 Cal.App. 323, 328, 143 P. 614; Lynch v. Lynch, 69 Cal.App. 66, 71, 230 P. 462. The burden is on the party complaining of the order to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice an appellate court will not substitute its opinion and thereby divest the trial court of its discretionary power. Hale v. Hale, 55 Cal.App.2d 879, 883, 132 P.2d 67; Sharpe v. Sharpe, 55 Cal.App.2d 262, 265, 130 P.2d 462.'
In the instant case the application to amend was made 20 months after the petition was filed and 9 months after the case was tried. No good reason was shown for the delay, and the effect of the amendment would be very substantially to increase the amount which petitioner was seeking to recover from the State. As we view the matter it was for the trial court to decide whether or not the motion to amend the petition should be granted. The language of our Supreme Court in Scholle v. Finnell, 167 Cal. 90, 138 P. 746, in which case a motion was made during trial to amend the complaint a year after the answer had been filed, is apropos. The court said, 167 Cal. at page 102, 138 P. at page 751: 'Without considering whether the proposed amendment embraced new causes of action, the order was justified on the ground that the motion was made too late. It appears that the facts upon which the proposed amendments were based were known to plaintiff for over a year. There was no satisfactory showing why leave to amend was not sought earlier, and it was within the discretion of the court to refuse to allow them for this unreasonable and unexplained delay.'
We therefore hold that the trial court did not abuse its discretion in denying petitioner's motions to amend the petition and to set aside the submission of the case.
In view of the foregoing the judgment is affirmed. The appeal from the order denying the motion to vacate the judgment is dismissed.
ADAMS, P. J., and PEEK, J., concur.