HOLT, Jr., Special Judge.
This was a suit seeking a review by a Circuit Court of the denial by the Board of Trustees of the City of Maplewood's Policemen's and Firemen's Retirement Fund of James E. McCartney's application for disability benefits. The case was tried without a jury, and McCartney appealed from a finding in favor of the individual defendants and the dismissal of his petition. During the pendency of his appeal McCartney died and on suggestion of his death here G. H. McCartney, the duly appointed administrator of his estate, was substituted as appellant. We shall designate the parties as below.
It was undisputed that the ordinance involved became effective December 2, 1948, and it contained among other provisions the following:
"Any employee of the Police Department or Fire Department permanently and totally disabled by injury or disease caused by accident of otherwise, shall be paid out of the Policemen's and Firemen's Retirement Fund monthly, for life, the sum of One Hundred ($100.00) dollars * * *."
The evidence showed that: plaintiff had been a Desk Sergeant in the Police Department of Maplewood for about eleven years prior to 1948; in October 1947 he had heart trouble and did not work between then and June 15, 1948; on June 23, 1948, the Council of the City of Maplewood adopted a resolution restoring plaintiff "to active duty effective June 15, 1948 * * * to serve at the pleasure of the Council"; on September 5, 1948, plaintiff suffered a cerebral hemorrhage and became permanently and totally disabled; plaintiff did no work for the City of Maplewood after September 4, 1948; on October 20, 1948, the Council by resolution appointed Emory Bobbitt to the Police Department, effective September 28, 1948, to do the work formerly done by plaintiff; plaintiff was last paid August 31, 1948; the Council alone had the right to employ members of the Police Department; and on December 5, 1949, plaintiff filed an application for disability benefits.
Frank L. Martini, Mayor of the City of Maplewood from April 1937 to April 1949, called by the plaintiff, testified: he was Presiding Officer of the Council; he interviewed employees or prospective employees and reported to the Council; plaintiff was on sick leave when off in 1947 to June of 1948; plaintiff received some pay then as the Council in 1946 passed an ordinance establishing sick leave pay for City employees according to their length of service; under that ordinance they were entitled to so many days of sick leave each year according to the years of service and after they had used up this sick leave their salaries stopped until they were ready to go back to work again; they were still considered as employees on sick leave; he went to see plaintiff maybe a half dozen times after the sickness of September 1948, the last time being late in December of 1948, after December 2, 1948; the last time he went was to see how plaintiff was getting along and to find out whether or not plaintiff would be able to come back to work anywhere reasonably soon; he suggested that plaintiff possibly was just lying around the house and that possibly coming back to work would take plaintiff's mind off his trouble, his sickness, and that he might be put on a night watch where there wouldn't be anything to do but answer the telephone; he considered plaintiff an employee at that time and the Council never discharged plaintiff; the Council employed several fellows on a temporary basis during the time plaintiff was sick; when plaintiff was sick in 1947 the Council employed a young fellow by the name of Walters and he instructed him when he went to work that plaintiff was sick and when able to come back to work Walters would have to terminate his employment; during plaintiff's last illness Bobbitt was first employed for a short time and discharged and then Donovan hired; he interviewed them and informed them when they went to work if and when plaintiff was able to come back plaintiff would take the job.
On cross examination Mayor Martini testified that: after September 5, 1948, the Council passed no resolution restoring plaintiff to active duty; the resolution appointing Bobbitt provided he was to serve at the pleasure of the Council; though there was nothing in that resolution to indicate Bobbitt's appointment was temporary, at the time he was employed, or anyone else to fill in for anyone sick, they were usually instructed by himself or the department head they were filling in for somebody else until that party came back to work; the same form of resolution adopted as to Bobbitt was used to make a permanent appointment; a temporary appointment would usually be terminated by a resolution of the Council; and if such an appointee were discharged usually a resolution would be adopted showing his services terminated.
At the outset of the trial counsel for plaintiff stated the parties had agreed on the issues except whether plaintiff was an employee at the time the ordinance became effective, and if he was, whether the disability occurred before the ordinance went into effect. Counsel further stated he would confine his evidence to those issues and he did. The primary point briefed as tried was plaintiff's being an employee within the ordinance vel non.
We have been cited no Missouri case but some from other jurisdictions. In 62 C.J.S., Municipal Corporations, § 576, the general rule is stated to be:
"Where the duration of the appointment of policemen is not fixed, they hold their office at the pleasure of the appointing power; and the appointment of a policeman is subject to the pleasure of the appointing power where such tenure is fixed by the express terms of the constitution, statute, or charter provisions. Under such provisions the term of the appointee is an indefinite one and is terminated by the appointment and qualification of his successor."
Cited in support of the rule, and the only case cited to us we deem near in point, is Chambers v. City of Sunnyvale, 56 Cal.App. 2d 438, 132 P.2d 849, 851. There in April 1931 Chambers was appointed a policeman at a salary of $135 per month by resolution of the City Council. He was warned several times about intoxication but was never officially dismissed by resolution of the Council. In April 1938, he became ill with cirrhosis of the liver, stopped work and never performed any further police duties. In May 1938, one Yglesias was appointed police officer in Chambers' stead. Chambers sued for his salary from May 1938 on. The court said: "The case is simply one where the indefinite terms of the appointee is ended by the appointment and qualification of his successor. This principle of law is so well settled that the authorities treat it without elaboration."
We think the above principle governs the instant case, and that plaintiff was not an employee when the ordinance became effective. The trial court, having found generally in favor of the defendant and having dismissed plaintiff's petition, must be deemed, especially under the issues agreed to be tried, to have also concluded plaintiff was not an employee within the ordinance. It follows that there was no error in the trial court's action and certainly that it was not "clearly erroneous" within "Section 510.310 paragraph 4, RSMo 1949, V.A.M.S.
In view of what we have said there is no point in considering other contentions of the parties herein. The judgment it affirmed.
BENNICK, P. J., and ANDERSON J., concur.