Arnold v. Browning

• Citation: 294 Ky. 164,171 S.W.2d 239
• Parties: ARNOLD v. BROWNING et al.
• Decision Date: 04 May 1943
• Court: Kentucky Court of Appeals

171 S.W.2d 239

294 Ky. 164

ARNOLD v. BROWNING et al.

Court of Appeals of Kentucky

May 4, 1943

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division; Joseph J. Hancock, Judge.

Suit by Mrs. Ethel Arnold against Chester L. Browning and others, as members of the Board of Trustees of the Firemen's Pension Fund of Louisville, Ky. for a mandatory order to require the Board to place plaintiff's name on the pension rolls. From a judgment sustaining a demurrer to and dismissing petition as amended, the plaintiff appeals.

Affirmed.

Jones Keith & Jones, of Louisville, for appellant.

Richard Priest Dietzman, Lawrence S. Poston, and Richard H. Hill, all of Louisville, for appellees.

VAN SANT, Commissioner.

The appeal is from an order sustaining a demurrer to and dismissing appellant's petition as amended, wherein she sought a mandatory order to require appellees, who are members of the Board of Trustees of the Firemen's Pension Fund in the city of Louisville, to place her name on the pension rolls.

Appellant married Captain William Arnold in the year 1903. At that time and continuously thereafter until July 1, 1925, Captain Arnold was an active employee of the Louisville Fire Department. On the last-named date, because of physical infirmities, he was retired by the Board of Trustees of the Pension Fund as then constituted, and thereafter until his death on June 23, 1941, he participated in the benefits of the firemen's pension fund. In the year 1917, Captain and Mrs. Arnold were divorced. She remarried and was divorced from her second husband in the year 1924. On October 7, 1935 she and Captain Arnold remarried and lived together until his death. At the time Captain Arnold's name was placed on the pension list, the law governing the rights of retired members of the fire department and their widows was prescribed by an Act of the General Assembly of 1912, c. 122 as numerously amended and finally compiled in the 1930 edition of the Kentucky Statutes under section 2896a-16 et seq. The Legislature of 1936, c. 73, repealed that act and the amendments thereto in their entirety and enacted another empowering cities of the first class to enact their own legislation providing for pensions for firemen and their dependents. The General Assembly of 1938, c. 152, enacted a new law in respect to firemen's pension funds in cities of the first class, which act is now in effect and is compiled in KRS 95.310, 95.320, 95.330 95.340, 95.350, 95.360, 95.370, 95.380, 95.390, 95.400, 95.410, 95.420 and 427.120 (Carroll's Kentucky Statutes, section 2896b-5 to and including section 2896b-15). The 1938 Act provides for the payment of a pension to the widow of a retired employee of the department, provided the widow and the deceased employee were married to each other at the time of the latter's retirement from active duty. The act in effect at the time of the retirement of Captain Arnold did not contain such a provision but did provide, which the 1938 Act did not, that no appeal could be had from a decision of the Trustees of the Board of Pensions concerning the eligibility of any person to participate in the fund. The 1938 Act provides that all beneficiaries drawing pensions at the time of the effective date of the act from any fund theretofore created by Statute or ordinance of a...