Bruggner v. Shaffer, 20064

• Decision Date: 05 October 1965
• Docket Number: No. 1,No. 20064,20064,1
• Citation: 210 N.E.2d 439,138 Ind.App. 183
• Parties: Frank J. BRUGGNER, Clement C. Fiwek, Orson E. Harman, Clement Hazinski, Stephen Ciesielski, Irvin Hampton, Daniel Radman, Walter Borkowski, Matthew Barczykowski, As the Board of Trustees of the Police Pension Fund of the City of South Bend, Appellants, v. Carl L. SHAFFER, Appellee
• Court: Indiana Appellate Court

Page 439

210 N.E.2d 439

138 Ind.App. 183

Frank J. BRUGGNER, Clement C. Fiwek, Orson E. Harman Clement Hazinski, Stephen Ciesielski, Irvin Hampton, Daniel Radman, Walter Borkowski, Matthew Barczykowski, As the Board of Trustees of the Police Pension Fund of the City of South Bend, Appellants, v. Carl L. SHAFFER, Appellee.

No. 20064.

Appellate Court of Indiana, Division No. 1.

Oct. 5, 1965.

Rehearing Denied Nov. 5, 1965.

Transfer Denied Dec. 21, 1965.

[138 INDAPP 184]

George Sands, South Bend, for appellants.

Norman Kopec, South Bend, for appellee.

PRIME, Presiding Justice.

Appellee instituted this action below pursuant to the Indiana Declaratory Judgments Act, Acts of 1927, Ch. 81, Sec. 1, p. 208, being Sec. 3-1101, Burns' 1946 Replacement. In his complaint the appellee prayed for a decree construing and interpreting Chapter 302 of the Acts of 1943, being Sec. 48-6428, Burns' 1963 Replacement.

Appellee had on December 21, 1933, been license by the Federal Communications Commission as a police radio operator in South Bend, Indiana; and on December 1, 1938, he was appointed as a member and officer of the police department of said city. Appellee was then, on February 5, 1961, retired from said police department and granted retirement benefits based upon his length of service from December 1, 1938, until retirement date. Appellee initiated this action in an attempt to gain an interpretation of the above mentioned statute, which would cause his tenure of duty as a police radio operator prior to December 1, 1938, to be added to his service time used in arriving at the amount of his retirement benefits.

[138 INDAPP 185] The applicable portion of said statute is set out below:

'All persons now regularly employed as full time police radio operators who have been duly licensed by the federal communications commission shall be appointed members of the police department in first, second, third and fourth class cities, * * * That such police radio operators shall be admitted to membership in such police pension funds subject to the rules governing the acceptance of members of the police department * * * And, further provided, That the date of their membership in such police pension funds shall be as of the time of their original appointment as such police radio operators * * *.' (Emphasis added.)

The court entered judgment favorable to the appellee and appellants filed their motion for a new trial. The appellants alleged in their motion that: (1) the decision was not sustained by sufficient evidence, and (2) the decision was contrary to law. The motion was overruled and appellants assign this adverse ruling by the trial court as error. Appellants have confined their argument to the second specification of their motion for a new trial, viz.: the decision is contrary to law.

The evidence was stipulated by the parties and consists of the following facts, towit:

'1.

'That said plaintiff was born on the 16th of October, 1905; that he was employed in the Electrical Department of the City of South Bend, Indiana, from June 1, 1925, to September 1, 1925, a period of three (3) months; from June 1, 1926, to November 1, 1926, a period of five (5) months; from January 1, 1927, to December 1, 1938, for a period of eleven (11) years and eleven (11) months; that his wages and salary were paid out of funds duly appropriated for the Electrical Department of said City of South Bend.

'2.

'That on the 21st day of December, 1933, and plaintiff was duly licensed by the Federal Communications Commission as a police radio operator and was regularly employed as a full time radio operator until the 1st day of December, 1938; that on the 1st day of December, 1938, said plaintiff was duly appointed as a police officer and a member of the Police Department of said city and was, on [138 INDAPP 186] the 6th day of March, 1939, admitted as a member of the South Bend Police Pension Fund. (Emphasis added)

'3.

'That on due application therefor, plaintiff was retired as a police officer on the 5th day of February, 1961 by reason of length of service of twenty (20) years and four (4) months and was allowed a retirement pension in the amount of Two Thousand Six Hundred Forty-Four Dollars ($2,644.00) per year, and that he has been duly paid such allowance.'

After giving due consideration to the pleadings filed by the parties and the stipulation of facts, the court concluded as a matter of law that:

'4. That said plaintiff was employed as a licensed full time police radio operator from December 21, 1933, to February 5, 1961, covering a period of 27 years, 1 month and 14 years (days). That from said gross period there was deducted a period of 1 year, 10 months and 18 days for suspension and disability time leaving a net period of 25 years, 2 months and 26 days of active service as a full time police radio operator.

'5. The clear purpose of the Act, Chapter 302 of the Acts of 1943, Burns' Indiana Statutes Annotated, Section 48-6428, was to provide benefits of the said pension to police radio operators not on the basis of their service as members of the police department but on the basis of their service previously rendered as police radio operators.'

It is our opinion that the trial court's finding was contrary to law. The decision below concludes, as a matter of law that appellee was employed as a licensed full time radio operator from December 21, 1933, to February 5, 1961; yet the stipulated facts clearly state that appellee was duly licensed and regularly employed as a full time radio operator from December 21, 1933, until the first day of December, 1938. This can only be interpreted as meaning that on the effective date of the Act the appellee though a member of the South Bend police department, was not employed as a radio operator. While both appellant and appellee argue the merits of the interpretation of the questioned statute, it appears from a [138 INDAPP 187] study of the briefs presented and of the statute that appellee must have been a radio operator in 1943 at the time the Act went into effect in order to receive benefit from it.

It is an accepted rule of law in this state that facts which are stipulated between the parties, and not having been set aside or withdrawn are conclusive upon the parties and the tribunal. Mid-City Iron, etc., Co. v. Turner (1929), 89 Ind.App. 38, 165 N.E. 760; Amer. Bridge Co. .v Rev.Bd., Emp. Sec. Div. (1951), 121 Ind.App. 576, 98 N.E.2d 193; Schreiber v. Rickert (1943), 114 Ind.App. 55...