Branson v. Firemen's Retirement Fund of State of Idaho

• Decision Date: 25 June 1957
• Docket Number: No. 8387,8387
• Citation: 312 P.2d 1037,79 Idaho 167
• Parties: La Verna BRANSON, Widow of John L. Branson, Claimant-Appellant, v. FIREMEN'S RETIREMENT FUND OF the STATE OF IDAHO, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1037

312 P.2d 1037

79 Idaho 167

La Verna BRANSON, Widow of John L. Branson, Claimant-Appellant, v. FIREMEN'S RETIREMENT FUND OF the STATE OF IDAHO, Defendant-Respondent.

No. 8387.

Supreme Court of Idaho.

June 25, 1957.

Mark B. Clark, Jones, Pomeroy & Jones, Pocatello, for appellant.

Graydon W. Smith, Atty. Gen., Glenn A. Coughlan, Asst. Atty. Gen., for respondent.

SMITH, Justice.

Appellant seeks to recover from respondent Firemen's Retirement Fund, death benefits allegedly payable on account of the death of her husband, John L. Branson, herein sometimes referred to as Branson.

February 6, 1947, Branson commenced working as a paid fireman for the City of Pocatello. June 29, 1947, he received an injury to his right knee caused by an accident arising out of and in the course of said employment. He was totally disabled for work on account of such injury from January 15, 1948 to July 25, 1951.

July 25, 1951, Bannock County employed Branson as a deputy sheriff; he served in that capacity until and including March 1, 1952. The City of Pocatello then reemployed him March 2, 1952, as a paid fireman, and he so served until August 31, 1952, when the city terminated his employment. Bannock County then reemployed him September 1, 1952, in the sheriff's office where he served until November 7, 1953. He was not thereafter employed. His death occurred December 30, 1953.

July 2, 1947, Branson, by claim filed with the Industrial Accident Board, claimed, and April 15, 1952, by compensation agreement approved by the Board, was awarded, compensation under the Workmen's Compensation Law for his total disability for work on account of such injury, for the period from January 15, 1948 to July 25, 1951, and specific indemnity for a resultant permanent injury.

November 14, 1949, Branson, by claim filed with the Board, also claimed, and June 12, 1952, by agreement approved by the Board, was awarded, benefits under the Firemen's Retirement Fund payable during a portion of the period he was incapacitated from serving as a paid fireman on account of such injury. He received payment of such benefits from March 4, 1949, the effective date of amendment of I.C., sec. 72-1414, to July 25, 1951, less reduction by the amount he had received during said time under the Workmen's Compensation Law on account of his incapacitation, as so provided by I.C., sec. 72-1414(B).

March 7, 1953, Branson by claim filed with the Board, claimed additional benefits under the Firemen's Retirement Fund.

November 13, 1953, Branson filed with the Board his petition for additional compensation under the Workmen's Compensation Law and for additional benefits under the Firemen's Retirement Fund. Respondent State Insurance Fund by its answer, inter alia, pleaded the bar of the statute of limitations under the Workmen's Compensation Law, i. e., I.C., sec. 72-407, which allows four years from the date of the accident causing the injury, for hearing of a claim under the Workmen's Compensation Law upon which compensation has been paid and discontinued; and I.C., sec. 72-607, which allows four years from the date of the accident causing the injury within which to apply for modification of an award on the ground of change in condition. The Board treated Branson's petition as an application for modification because of changed condition and, since four years had expired since June 29, 1947, the date of the accident which caused Branson's injury, ruled that any further relief to him was barred. No appeal was taken from such decision within 30 days or at all as provided by I.C., sec. 72-608.

August 7, 1954, appellant filed with the Board her claim for benefits under the Firemen's Retirement Fund. She alleged the accident of June 29, 1947, and Branson's personal injury thereby received, while working for the City of Pocatello as a paid fireman, and his retirement from such work, and death as attributable to said accident.

Respondent, Firemen's Retirement Fund, through its administrator, generally denied liability on appellant's claim; also, in bar to said claim, pleaded res judicata and the statute of limitations, I.C., secs. 72-407, 72-607 and 72-608 of the Workmen's Compensation Law. The Board, upon hearing the matter, entered an order, October 18, 1955, denying appellant's claim. Appellant perfected an appeal from such order.

Appellant asserts error of the Board in denying her claim for benefits on grounds of res judicata and the bar of said statute of limitations.

I.C., sec. 72-1414, subdivisions (B) and (C), omitting the provisions relating to reduction by payments received as workmen's compensation, read as follows:

'(B) Any paid fireman incapacitated by injury in the course of duty, or by illness attributable wholly or partially to service as a paid fireman, shall be retired so long as such disability shall continue in a degree which prevents efficient service, and during such disability shall be paid from said fund [firemen's retirement] a monthly sum of ninety-five dollars * * *.

'(C) In the event a paid fireman is killed or sustains injury, from which death results, while in performance of his duty, and leaves surviving him a widow, his widow shall, during the time she remains his widow and does not remarry, be paid from the said fund the monthly sum of ninety-five dollars * * *.'

In regard to respondent's plea of res judicata the Board's ruling on Branson's claim filed March 7, 1953, for additional benefits under the Firemen's Retirement Fund, is as follows:

'This claim [filed March 7, 1953 for additional Firemen's Retirement Fund benefits] was denied in case No. 248852 [Workmen's Compensation] by decision rendered May 29, 1954. That decision upheld the plea of the defendants, including defendant herein of the bar of Sections 72-407 and 72-607, specifically as to Branson's workmen's compensation claim, inferentially as to his claim against the Firemen's Retirement Fund.

'* * * Decedent's second claim on the Firemen's Retirement Fund, dated March 4, and filed March 7, 1953, was based solely on the same accident. In fact it was a claim for additional compensation on a change of condition. So also was his petition for hearing filed November 13, 1953. Both were filed after a lapse of more than 5 1/2 years from the original accident.'

The Board then ruled:

'The facts and circumstances upon which decedent's widow relies for recovery under subdivision (C) of Section 72-1414 must be such that decedent, had he survived, could have himself sought and obtained recovery under subdivision (B) of said section.'

I.C., section 72-1423 reads:

'All claims against said fund shall be filed with the industrial accident board of the state of Idaho in as nearly as practicable the same manner that claims under the Workmen's Compensation Law of the state of Idaho are filed, and the said industrial accident board is hereby given jurisdiction to entertain and pass upon said claims, allow or deny claims and make awards, and the provisions of the Workmen's Compensation Law of the state of Idaho relative to process, hearings and appeals are hereby made applicable to the provisions of this act, and said industrial accident board is hereby given power and authority to make rules and regulations governing procedure in relation to said claims.'

I.C., sec. 72-1423 relates only to procedure, i. e., the filing, hearing and determination of claims against the Firemen's Retirement Fund, with the provisions of the Workmen's Compensation Law, 'relative to process, hearings and appeals,' made applicable. Such section of the statute, while it presupposes the necessity of making a claim for filing and determination, 40 Am.Jur., Pensions, sec. 38, p. 990, does not relate to the substantive right to make the claim, thereby to claim benefits under the Fund. Obviously, a paid fireman, retired or incapacitated, may either claim benefits under the Fund, or abandon that right by his failure to make a claim.

Additionally, I.C., sec. 72-1414(C) grants unto the decedent paid fireman's surviving widow the right to claim death benefits under the Firemen's Retirement Fund, only in the event her husband is killed, or sustains injury from which his death results, while in performance of his duty. That right of the widow, does not and cannot exist during the lifetime of her husband, and cannot come into existence until his death occurs, nor unless the surviving widow exercises her right to claim those benefits by making and filing a proper claim in the premises. Both claims, i. e., the fireman's claim and his surviving widow's claim, cannot exist concurrently, since the rights under each claim exist at different times, independent and separate, the one from the other. The lack of privity between the paid fireman, on the one hand, and the surviving widow, on the other hand, in respect to each respective right to benefits under said Fund becomes clear in view of each such distinct and separate right created and the distinct and separate nature of each such claim.

The right of a widow to pension benefits, under a statute providing for pensions, vests upon the happening of the contingency specified in the statute, that is, the death of the employee or former employee. Vero v. Sacramento City Employees' R. System, 1940, 41 Cal.App.2d 482, 107 P.2d 82; Chaney v. Los Angeles County P. Officer's R. Board, 1943, 59 Cal.App.2d 413, 138 P.2d 735; English v. City of Long Beach, 1954, 126 Cal.App.2d 414, 272 P.2d 875; State ex rel. Warren v. City of Miami, 1943, 153 Fla. 644, 15 So.2d 449; Hollis v. Jones, 1937, 184 Ga. 273, 191 S.E. 127; West v. Anderson, 1939, 187 Ga. 587, 1 S.E.2d 671; Arnold v. Browning, 1943, 294 Ky. 164, 171 S.W.2d 239; Meyer v. Board of Trustees of F. Pension & R. Fund, 1942, 199 La. 633, 6 So.2d 713; State ex rel. Bartelt v. Thompson, 246 Wis. 11, 16 N.W.2d 420, appeal dismissed 324 U.S. 828, 65 S.Ct. 868, 89 L.Ed. 1395.

The test of res judicata is the identity of the rights sued...