Doody v. Davie

LANGDON, P. J.

Petitioner is a member of the Oakland fire department and the defendants are members of the city council which passed a resolution refusing to pay

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petitioner’s claim for salary during a period when he was incapacitated from performing his duties as a member of the fire department by reason of a sore foot, which condition was brought about by stepping on a nail while in the yard of his home on July 12, 1922, which was his “day off.”

A demurrer to the complaint was overruled and defendants answered. Upon motion of petitioner, judgment was entered upon the pleadings, from which judgment defendants appeal.

It appears from the pleadings that petitioner’s foot was dressed by a physician every other day and that for a period of nine days petitioner was unable to walk or put his weight upon the sore foot. Petitioner promptly reported to the fire department that he was “sick” and furnished the necessary doctor’s certificate required by the department. The said' department never asked for any other certificate and on July 22, 1922, petitioner returned to his work, and furnished what is known in the department as a “well” certificate.

Thereafter petitioner endeavored to collect his monthly salary from the city of Oaldand for the month of July, and received in lieu of his salary of $150 the sum of $106.45, being informed that the difference, or the amount of $43.55, was deducted from his salary by reason of his nine days’ absence from his regular occupation. Thereafter petitioner duly demanded of the said city of Oaldand the balance of $43.55 and the defendants, acting as the city council of the city of Oakland, by a resolution, regularly adopted, rejected the claim of petitioner, setting forth in the resolution of rejection the following: “For the reason that the charter authorizes no compensation to fire-men during periods of incapacity from duty arising solely from injuries not received in the performance of any duty.”

The only question presented is one of construction of section 100 of the charter of the city of Oaldand, the pertinent portion of which reads as follows:

“Section 100. ... A member (of the Fire Department) becoming incapacitated for duty by reason of sickness shall be entitled to sixty days’ sick leave without loss of pay. If such sickness shall continue, he shall be entitled to half-pay for an additional period of sixty days, and if such sickness shall continue further, he shall receive such pay, if any,