Atwell v. City of Los Angeles

• Decision Date: 14 March 1962
• Citation: 20 Cal.Rptr. 462,201 Cal.App.2d 336
• Court: California Court of Appeals Court of Appeals
• Parties: John H. ATWELL et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants. Theresa CASEY et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants. Eva Lou BOWERS et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants, Maude Thomas, Plaintiff, Respondent and Appellant. Civ. 25400-25402.

Page 462

20 Cal.Rptr. 462

201 Cal.App.2d 336

John H. ATWELL et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

Theresa CASEY et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

Eva Lou BOWERS et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants, Maude Thomas, Plaintiff, Respondent and Appellant.

Civ. 25400-25402.

District Court of Appeal, Second District, Division 4, California.

March 14, 1962.

Rehearing Denied March 28, 1962.

Hearing Denied May 16, 1962.

Roger Arnebergh, City Atty., Bourke Jones and John J. Tully, Jr., Asst. City Attys., and Weldon L. Weber, Deputy City Atty., for appellants.

Kenneth Sperry and John L. Kaesman, Long Beach, for respondents.

BURKE, Presiding Justice.

In these three companion cases consolidated for trial plaintiffs in Atwell vs. the 'Atwell case') are retired policemen the 'Atwell caseh) are retired policemen or firemen, and plaintiffs in Casey vs. City of Los Angeles (hereinafter termed the 'Casey case') and Bowers vs. City of Los Angeles (hereinafter termed the 'Bowers case') are all widows of deceased firemen and policemen of the City of Los Angeles who seek a declaration with respect to pension benefits under the charter provisions of the City of Los Angeles. The principal issue involved in all three cases is whether a July 1, 1925, amendment (art. XVII, § 183 as amended by St.1927, p. 2023 and St.1947, p. 3682) to the city charter relating to eligibility for widows' pensions, which provides that in order to be eligible for a pension a widow must have been married to her deceased pensioner husband 'at least one year prior to the date of his retirement' instead of 'for one year prior to the date of his death' as had been provided in the charter prior to 1925, was unreasonable, unconstitutional and invalid as applied to the widow plaintiffs in the Casey and Bowers cases and the widows, if any, of the plaintiff members in the Atwell case.

The plaintiffs in the Atwell case are retired policemen or firemen who were appointed to their positions prior to July 1, 1925, and who are receiving pensions from the city. Although each plaintiff is married, the date of his marriage did not occur until after such member's retirement from his active service. In the Atwell case each plaintiff seeks a declaration that upon his death his surviving spouse, to whom he shall have been married for at least one year prior to the date of his death, will be entitled to receive a fluctuating pension.

Plaintiffs in the Casey and Bowers cases are all widows of deceased pensioners who were appointed to their respective positions prior to July 1, 1925, and each of which received a pension from the city until the date of his demise. Each plaintiff and her deceased husband were married either after retirement or within less than one year prior to retirement but more than one year prior to his demise. None was married for one year prior to retirement. Each plaintiff widow seeks a fluctuating pension in the Casey and Bowers cases retroactive to the date of her husband's demise.

In the Casey and Bowers cases an additional issue is presented, to wit, whether both the first and second causes of action of plaintiffs are barred by virtue of the general claims provisions of sections 363, St.1925, p. 1137, and 376, St.1927, p. 2014, of the city charter, and further whether such provisions bar each plaintiff from recovering judgment for any monthly installment of pension benefit which accrued more than six months prior to the date upon which each plaintiff filed her claim therefor or whether defendants should be estopped from urging such defense.

In respect to defendants' appeal there is one additional issue applicable only to the Bowers case, to wit, whether both the first and second causes of each action of each plaintiff therein are barred by the provisions of sections 312 and 338, subdivision 1, of the Code of Civil Procedure.

One of the widow plaintiffs in the Bowers case, Maude Thomas, has appealed from that portion of the judgment in that case which determined that she is not now and never has been entitled to receive any death benefit pension from defendants since her husband had a 'break' in his period of service.

In resolving the principal issue presented in these three cases, the following provisions of the Los Angeles city charter must be considered:

Prior to July 1, 1925, section 4 of article XI 1/2 of the 1889 charter of defendant city provided 'that no widow of a pensioner shall be entitled to a pension unless she shall have been married to such deceased pensioner at least one year prior to the date of his death.' (Stats.1923, pp. 1411-1414.) Effective as of July 1, 1925, said provision was amended by the enactment of section 183 of article XVII of the 1925 charter of defendant city to read 'that no widow of a pensioner shall be entitled to a pension unless she shall have been married to such deceased pensioner at least one year prior to the date of his retirement' (Stats.1925, pp. 1085-1088) and the same, as so amended, is still in effect.

The trial court held (1) that the 1925 amendment is unreasonable, unconstitutional and invalid as applied to each party plaintiff in all three cases and the deceased husbands of the widow plaintiffs in the Casey and Bowers cases, except the plaintiff Maude Thomas and her deceased husband, John W. Thomas, in the Bowers case; (2) that each plaintiff widow in the Casey and Bowers cases (except Maude Thomas) is entitled to receive a fluctuating pension retroactive to the date of the demise of her deceased husband; (3) that upon the demise of any party plaintiff in the Atwell case, his surviving spouse, if any, to whom he shall have been married for at least one year prior to his demise, will be entitled to receive a fluctuating pension; and (4) that defendants are estopped to urge the defense of the statute of limitations (Code Civ.Proc. §§ 312 and 338(1)), and the claims sections of the city charter (§§ 363 and 376).

Defendants contend that the 1925 modification of the eligibility provisions of the city charter entitling widows to receive pensions only if they have been married to a deceased member one year prior to the date of his retirement instead of one year prior to his death, as had been previously provided, was not and is not unreasonable as to any member or widow involved in these cases. They further contend that the evidence is insufficient to estop the defendants from urging the application of its charter claims sections or the statute of limitations. The plaintiffs take the contrary view with respect to both of defendants' contentions.

For the reasons indicated in the cases of Henry v. City of Los Angeles, Cal.App., 20 Cal.Rptr. 440, and the other cases consolidated with that case, we hold that the 1925 modification referred to above was unreasonable, unconstitutional and invalid as to any member or widow involved in the Atwell or Casey cases. In view of the holding of the Supreme Court in the case of Abbott v. City of Los Angeles, 50 Cal.2d 438, 326 P.2d 484 (herein referred to as the 'Abbott case'), that the claims provisions of the city charter are applicable to pension claims, we affirm further the trial court's holding that each plaintiff widow in the Casey cases is entitled to receive a fluctuating pension but retroactive only for the period not more than six months prior to the time that a specific claim for such pension was filed by or in behalf of each such party plaintiff. We affirm further the trial court's holding that upon the demise of any party plaintiff in the Atwell case, his surviving spouse, if any, to whom he shall have been married for at least one year prior to his demise, will be entitled to receive a fluctuating pension for the reasons stated in the case of Henry v. City of Los Angeles, Cal.App., 20 Cal.Rptr. 440.

The plaintiff widows in the Bowers case did not commence their actions to establish pensionable status within three years after their causes of action therefor accrued, to wit, the dates of demise of each of their respective deceased husbands. The Casey case widows, whose husbands died more recently, were enabled to take advantage of the knowledge imparted to them by the Supreme Court decision in the Abbott case and to file their action within the three-year period, and therefore the defense of the statute of limitations has not been raised against them.

Initially, it is noted that none of the plaintiffs before the court in the Abbott case...