Cawley v. Board of Trustees of Firemen's Pension or Relief Fund of City of Beckley

Decision Date07 July 1953
Docket NumberNo. 805,805
Citation76 S.E.2d 683,138 W.Va. 571
CourtWest Virginia Supreme Court
PartiesCAWLEY, v. BOARD OF TRUSTEES OF FIREMEN'S PENSION OR RELIEF FUND OF CITY OF BECKLEY et al. C.C.

Syllabus by the Court.

Under Section 12, Chapter 88, Article 6-a, Acts of the Legislature, 1949, Regular Session, a person over thirty-five years of age who has been improperly certified as being eligible for appointment as a member of a paid fire department, and who is thereafter appointed and confirmed by the mayor and common council of a municipality, is not eligible for a pension for permanent disability to be paid from the Pension or Relief Fund for Firemen, though such person has become permanently disabled while performing the duties of fireman, and his disability resulted from that performance.

James M. Henderson and Sayre, Lynch & Henderson, Beckley, for relator.

Benjamin D. Tissue, and Joseph Luchini, Beckley, for defendants.

LOVINS, Judge.

Roy L. Cawley, seeking a writ of mandamus to require the payment of pension benefits for permanent disability allegedly incurred while a member of the fire department of the City of Beckley, instituted this proceeding in the Circuit Court of Raleigh County, against the Board of Trustees of the Fireman's Pension or Relief Fund of the City of Beckley, a corporation, Harman Mandeville, Alvin F. Marion, Otis Lyons, Cecil P. Conner and George B. Chambers, members of such board, Thomas E. Bazzarre, Jr., Recorder-Treasurer of the City of Beckley, and as such, custodian of the Fireman's Pension or Relief Fund, the City of Beckley, a municipal corporation and George B. Chambers, Mayor of that city.

The Board of Trustees of the Fireman's Pension or Relief Fund of the City of Beckley will be hereinafter designated as 'Trustees'; the City of Beckley will be referred to as 'City'; the Fireman's Pension or Relief Fund as 'Fund'; the Common Council of the City of Beckley, as 'Council'; the Medical Board of the Fireman's Pension or Relief Fund of the City of Beckley as 'Medical Board'.

A demurrer having been interposed by defendants to the original petition, the same was sustained. The original petition is not in this record.

Thereafter, the relator filed an amended petition on which a rule was awarded, returnable the 25th day of August, 1952. The defendants again filed their joint and several demurrer to the amended petition, assigning grounds of such demurrer which, so far as necessary, may be summarized as follows: (1) That no facts are alleged to show relator was qualified for appointment as a member of the paid fire department, (2) that he admits that he was 41 years of age at the time of the civil service examination and no waiver of the age requirement by the medical examining board is shown, (3) that he was not awarded permanent disability benefits, (4) that the petition and amended petition of the relator do not show a factual basis entitling him to pension benefits for permanent disability, (5) that no waiver of the statutory age requirement by the Trustees and the City is shown.

The Circuit Court of Raleigh County sustained a demurrer to the amended petition and certified certain question to this Court.

Relator is a resident of the City of Beckley and has been for the past ten years. He sets forth in haec verba an ordinance establishing the Fund for the City, as well as an amended ordinance relating to the same subject. These ordinances seem to conform to the statute authorizing the establishment of such Fund. The ordinances above mentioned provide for the establishment and maintenance of the Fund, and the Trustees as a Board to administer such Fund. A Civil Service Commission, having certain duties and powers with respect to members of the paid fire department, is established for the City.

Relator was employed as a fireman for the City of Beckley by the Mayor of such City, March 1, 1945; and on that date commenced to perform his duties as such. He received a monthly salary from the City as a member of the fire department until payment of his salary was terminated on November 1, 1950. His alleged appointment as a member of the fire department of the City was confirmed by the Council on the 26th of December, 1945. He submitted to physical and mental examinations, including a Civil Service Commission examination, prior to his confirmation.

He performed duties as a member of the fire department of the City from the time of his appointment until the 22nd day of July, 1950. On the last mentioned date he contracted virus pneumonia by reason of services he performed as a member of the fire department of the City. He was absent from his duties as a fireman, because of such illness, from July 22, 1950, until August 28, 1950, returning to his duties on the last mentioned date and serving in such capacity until September 23, 1950, when he suffered a recurrence of his malady and at the request and direction of the then Trustees, he was examined by a physician who advised him to rest and return for further treatment. After another examination, he went to a clinic for further treatment. He returned on or about October 26, 1950, and was then examined by the same physician who advised that because of his malady, it would be unwise for him to return to full duty as a member of the fire department.

The relator submitted to x-ray and other examinations, and it was disclosed that he was suffering from a chronic disease of the lungs.

The acting mayor of the city recommended that the relator be relieved of his duties by 'the City Fire Department'. The recommendation was carried out by the adoption of a resolution by the Council, purportedly relieving him of his duties as of the 1st day of November, 1950.

Relator contends that he was relieved without warrant of law, since the removal was without just cause and no statement of the reasons for such removal or discharge as fireman was furnished by the Civil Service Commission of the City of Beckley, nor was the relator furnished with such statement of the reasons for his discharge by the Council and given an opportunity to be heard thereon. He alleges that he has been a member of the fire department of the City since March 1, 1945, until the date of this proceeding, notwithstanding the actions of the Council on the 12th day of December, 1950; that he has paid money into the Fund for the City, as required by statute and ordinance of the City; that his payment into the Fund amounted to approximately $365.48.

He was advised by the acting mayor of the City of Beckley to make application for temporary disability payments. This application was denied by the Trustees upon the ground that he was over the age of thirty-five years at the time of his appointment as city fireman. Thereupon, he applied to the Judge of the Circuit Court of Raleigh County for a writ of mandamus to compel the payment of temporary disability. That Court, on the 26th day of June, 1951, adjudged that the relator was entitled to temporary disability payments on the ground that he had been found to be temporarily disabled by the Medical Board. He was awarded a peremptory writ of mandamus, requiring the payment of temporary disability benefits for 26 weeks, from November 1, 1950.

In accordance with the peremptory writ, the Trustees have paid the full amount of pension benefits for temporary disability. The order awarding the writ of mandamus for temporary disability payments provided that such award should 'be in no way an adjudication that the petitioner is or is not covered by pension act statutes and ordinances if, when and should a claim for permanent pension be asserted by the petitioner.'

After the expiration of the period covered by the temporary disability, relator was again examined by the Medical Board who found that the relator was permanently disabled from the performance of his duties as a member of the fire department of the City.

Upon such report, the relator made application to the Trustees for a permanent pension, and in support thereof, filed the report made by the Medical Board. The Trustees met on the 31st day of August, ----, and inserted in their minutes the report made by the Medical Board. Relator alleges that the Trustees awarded him a pension for permanent disability as required by law. Thereafter, the Trustees, according to the allegations in the petition, without notice to relator, or giving him opportunity to be heard, by a resolution adopted September 14, 1951, denied his application for a permanent pension award on the ground that he failed to qualify under 'law of Civil Service'.

The relator alleges that the denial of benefits for permanent disability by the Trustees was capricious, wrongful, arbitrary and without just cause, and that the Trustees, by their action, rescinded a former allowance of a pension made by them.

Relator admits in his petition that he was 41 years of age at the time he made his application for appointment as a member of the fire department of the City; that the Civil Service Commission of the City was duly advised of his correct age, that his date of birth was given on his application; and, that the Mayor and Council of the City, and the members of the Civil Service Commission were fully cognizant of his correct age at the time of his appointment.

He further alleges that he has complied with all pertinent and applicable statutes, and that he is entitled to the benefits and privileges of the Fund. He alleges that he is disabled permanently and that he is unable to carry on his duties as a fireman because of the disability.

In his petition, relator directs attention to the fact that he was a member of the paid fire department of the City of Beckley, from the date of his initial employment, March 1, 1945, until the date of his permanent disability, a period of 6 years and 3 months.

He avers that he has a clear legal right to the award of permanent disability...

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