Benedict v. Board of Police Pension Fund Com'rs of Seattle
| Decision Date | 18 January 1950 |
| Docket Number | 31058. |
| Citation | 214 P.2d 171,35 Wn.2d 465 |
| Court | Washington Supreme Court |
| Parties | BENEDICT v. BOARD OF POLICE PENSION FUND COM'RS OF SEATTLE et al. |
Mary Evelyn Benedict filed a petition against the Board of Police Pension Fund Commissioners of the City of Seattle, and William F. Devin, and others, members of the Board, for alterative writs of mandate requiring Board to approve petitioner's application for a pension for death of her husband band who was a police officer of the city, or to show cause why writ directing allowance of pension should not issue.
The Superior Court, King County, Hugh C. Todd, J., ordered peremptory writ of mandate to issue directed to the Board commanding it to allow a pension to petitioner, and the defendants appealed.
The Supreme Court, Beals, J., held that decision of Board that death did not occurwhile officer was in performance of police duty was not as a matter of law arbitrary or capricious under the evidence so as to justify Superior Court in reversing order.
Order reversed and cause remanded with instructions.
A. C Van Soelen, Glen E. Wilson, Seattle, for appellants.
Kennett & McCutcheon, Seattle, for respondent.
The late Virgil Benedict and Mary Evelyn Benedict were for many years husband and wife, and had one son, Richard, who was twelve years of age June 4, 1948, the date of his father's death. Virgil Benedict joined the police force of the city of Seattle in 1937, and was on active duty as an officer until his death.
June 4 1948, after his afternoon tour of duty, Officer Benedict went to his home. During the early evening, a neighbor called on him, stating that people near her home were chopping trees in the public street. Officer Benedict, taking his police badge and service revolver, went to the place where the chopping had been going on, but, the offenders having departed, he went home, after visiting with the neighbor and her husband for about fifteen minutes.
Upon his arrival at his home, Officer Benedict went into the bathroom, and hung his loaded revolver on a hook, over a coat or some article of clothing, then went into the kitchen where he sat at a table at which Mrs. Benedict was also seated. Officer Benedict was drinking a cup of coffee, and, while so engaged, his son, Richard, entered the kitchen from the living room and went into the bathroom, where he remained a short time. Richard then opened the bathroom door, leading into the kitchen, whereupon Mrs. Benedict looked at him and observed him standing in the doorway with his father's revolver in his hand. Officer Benedict was sitting in such a position that the left rear portion of his head was toward the bathroom door. Richard raised the revolver and discharged it, the bullet striking his father in the head, inflicting a mortal wound.
In due time, Mrs. Benedict filed with the board of police pension fund commissioners her application for a pension, claiming that she was entitled to receive it, pursuant to Rem.Rev.Stat. (Sup.), § 9585, which reads in part as follows: 'Whenever any member of the police department of any such city shall lose his life through violence while actually engaged in the performance of his duty as such police officer, leaving a widow or child or children under the age of sixteen years, then upon satisfactory proof of such facts made to it, such board shall order and direct that a yearly pension, equal to one-half of the amount of the salary attached to the rank which such member held in said police department at the time of his death, shall be paid to such widow during her life, or if no widow, then to the child or children, until they shall be sixteen years or age: * * *.'
Her petition was heard by the board October 5, 1948, Mrs. Benedict appearing in person and by her attorney. A member of the staff of the corporation counsel of the city of Seattle participated in the hearing. Mrs. Benedict testified Before the board, as did the lady who had requested Officer Benedict's assistance on the evening referred to, and the physician who had performed an autopsy. The proceedings Before the board were reported, and a typed transcript thereof prepared.
The board denied Mrs. Benedict's application for a pension upon the ground that, at the time of Officer Benedict's death, he was not actually engaged in the performance of his duties as a police officer.
Thereafter, Mrs. Benedict, as relator, filed with the clerk of the superior court for King county her petition for an alternative writ of mandate directed to the board of police pension fund commissioners of the city of Seattle. An alternative writ was issued, requiring the board either to forthwith approve Mrs. Benedict's application for a pension or show cause, at a date specified, why a writ should not issue directing that the pension be allowed.
The respondents demurred to the alternative writ, also moving to quash the same and filing an answer thereto.
When the matter was called for trial, both parties appearing (relator in person and by her counsel and the respondents by the corporation counsel of the city of Seattle), the respondents' demurrer was argued and overruled, whereupon the court heard the witnesses called by relator, and admitted in evidence the exhibits which she offered, including a certified transcript of the hearing Before the board. At the close of the case, the court delivered its oral decision, reviewing the evidence and directing that the writ of mandate sought by relator should issue, 'not that the Board acted arbitrarily and capriciously, but that it improperly applied the law to the facts.'
Thereafter, the court entered its findings of fact and conclusions of law, followed by a judgment reciting the preliminary proceedings and ordering that a peremptory writ of mandate issue, directed to the respondent board, commanding it to forthwith allow a pension to the relator.
From this order and judgment, respondent members of the board have appealed to this court.
Appellants assign error upon the entry of three findings of fact and the court's conclusion of law to the effect that the writ should issue; upon the refusal of the trial court to make findings of fact as proposed by appellants, and upon the entry of the order and judgment from which they have appealed.
At the hearing Before the superior court, three witnesses only were called by respondent, namely, W. C. Thomas, the comptroller of the city of Seattle, who was a member of the police pension board and acting as its secretary; Ernest Truesdale, a civilian clerk in the employ of the Seattle police department, whose duty it was to keep the official records of the board of police pension fund commissioners; and James Lawrence, a captain in the police department. The appellants called no witnesses.
Mr. Thomas testified that he attended three meetings of the board, one in July, one in August, and the last in October, at which meeting evidence under oath was taken concerning the circumstances connected with the death of Officer Benedict.
A typed transcript of the evidence introduced by respondent Before the police pension board at its meeting held October 5, 1948 was identified and introduced in evidence Before the superior court.
Mr. Truesdale produced and identified certain letters in connection with respondent's claim, which were introduced in evidence; read into the record portions of the minutes of the meetings which referred to the claim; identified two memoranda, one signed by Mr. Thomas, and the other by William Devin, the mayor of the city, who was also a member of the board, and a copy of the verified application for a pension by Mrs. Benedict, and a copy of a letter from her counsel to the board, dated September 3, 1948, requesting the formal hearing at which testimony would be submitted, which was later held as above stated.
An exhibit consisting of a letter, dated September 7, 1948 from the board to the corporation counsel, requesting an opinion advising the board as to the interpretation to be given the words 'while actually engaged in the performance of his duty as such police officer,' as contained in Rem.Rev.Stat. (Sup.), § 9585, supra, together with a copy of the corporation counsel's answer, was also received in evidence Before the court.
At the hearing held October 5, 1948 (as disclosed by the transcript which was introduced in evidence), Dr. Gale Wilson, a practicing physician and surgeon, testified Before the board that he bad performed an autopsy upon the body of Virgil Benedict. The doctor stated that death was caused by a bullet would in the head; that the bullet (a '.38 caliber') entered at the outer corner of the left eye, went through the eyeball, through the back of the nose, the base of the brain, and lodged in the middle portion of the right ear, and that there were no powder burns. The witness testified that 'from the point of entrance to the point where the bullet was lodged would be an almost straight line or perhaps a half an inch rise from one side to the other.' The transcript of testimony of Dr. Wilson, introduced Before the board, discloses the following:
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Benedict v. Board of Police Pension Fund Com'rs of Seattle, 31058.
...214 P.2d 171 35 Wn.2d 465 BENEDICT, v. BOARD OF POLICE PENSION FUND COM'RS OF SEATTLE et al. No. 31058.Supreme Court of Washington.January 18, Department 1. [35 Wn.2d 466] [214 P.2d 172] A. C. Van Soelen, Glen E. Wilson, Seattle, for appellants. Kennett & McCutcheon, Seattle, for respondent......