English v. City of Long Beach

• Decision Date: 21 November 1952
• Citation: 250 P.2d 298,114 Cal.App.2d 311
• Court: California Court of Appeals Court of Appeals
• Parties: ENGLISH v. CITY OF LONG BEACH et al. Civ. 18980.

Page 298

250 P.2d 298

114 Cal.App.2d 311

ENGLISH v. CITY OF LONG BEACH et al.

Civ. 18980.

District Court of Appeal, Second District, Division 1, California.

Nov. 21, 1952.

Rehearing Denied Dec. 8, 1952.

Hearing Denied Jan. 19, 1953.

Kenneth Sperry, Long Beach, for appellant.

Irving M. Smith, City Atty., Clifford E. Hayes, Deputy City Atty., Long Beach, for respondents.

PATROSSO, Justice pro tem.

Petitioner appeals from a judgment dismissing her petition for writ of mandate by which she sought to compel the defendant City of Long Beach, the members of its city council, and other administrative officers to grant her a widow's pension under the provisions of Section 187(4) of the city charter.

Appellant alleges that she was married to Henry W. English on December 12, 1940; that there was born as the issue of said marriage a child aged four years; that she was living with her husband at the time of his decease on April 11, 1950, and has not since remarried; that her husband was appointed to a position in the police department of the defendant city on July 16, 1942, and served regularly as a member thereof, except for such periods during which he was on authorized leave of absence, up to and until April 5, 1950, at which time he was compelled to retire from active service due to sickness caused by the discharge of his duties as a police officer; and that his death on April 11, 1950, was the result of injuries received by him during the performance of his duties as a police officer or from sickness caused or aggravated by the discharge of such duty. It is further alleged that on February 14, 1951, appellant filed an application for a widow's pension with the defendant city council but that said defendants have filed and refused to recognize petitioner's rights in the premises or to cause any pension payments to be made to her; that more than a reasonable time has expired since the filing of such application and that unless compelled to do so defendants will continue to refuse to grant her the pension to which she is entitled.

Upon the filing of the petition an alternative writ was issued to which respondents made return by filing an answer denying that petitioner's husband's death was service connected, and, while admitting that Mr. English had been appointed as a patrolman in the police department on the 16th day of July, 1942, and that he continued in this capacity until the 3rd day of August, 1945, proceeds to allege that on the last named date the city manager filed charges against him, 'dismissing him from the service of the City'; that on the 12th day of September, 1945, a hearing was held before the civil service board and thereafter the board made its order sustaining the charges and approving the dismissal; that Mr. English sought and obtained a peremptory writ of mandate directing the defendants named in said action to reinstate him to the position of patrolman; that defendants therein took an appeal from said judgment and on August 31, 1948, the petitioner English obtained an order that the appeal not operate as a stay, whereupon the defendants reinstated him to the position of patrolman and he continued to work for the defendant city until April 5, 1950; that on April 17, 1950, the Supreme Court of California reversed the decision of the trial court in the mandate proceeding insofar as it ordered the reinstatement of English but ordered the entry of a judgment directing the civil service board to set aside its order sustaining the dismissal of Mr. English and to accord him a full and fair hearing. English v. City of Long Beach, 35 Cal.2d 155, 217 P.2d 22, 18 A.L.R.2d 547. It is further alleged that following the decision of the Supreme Court, on August 30, 1950, the trial court entered a judgment therein in accordance therewith but that no peremptory writ of mandate has ever been served upon the civil service board, and that the board has not set aside its previous order sustaining the dismissal of Mr. English nor has the board set the matter for hearing and that 'the matter is still pending before the Civil Service Board.'

The hearing upon the alternative writ was thereupon continued for one week, at which time appellant filed what is denominated a traverse to respondents' answer, in which it is admitted that written charges were filed by the city manager against Mr. English as alleged in the answer and alleges that such charges were to the effect that 'he had failed to pass a certain physical examination and that it appeared from certain medical reports that he had contracted a physical ailment or defect which incapacitated him from the performance of his duties as a patrolman,' but denies that Mr. English was dismissed from the police department on the date upon which the charges were filed or at any time; denies that the city manager had the right or power under the city charter to bring about the discharge of Mr. English without affording him an opportunity to be heard before the civil service board, and that any purported discharge could not become effective until he had been afforded a fair hearing before said board in respect to the truth of the charges; that Mr. English filed a written denial of the charges within the time provided by the rules and regulations of the civil service board and that, as determined by the Supreme Court of California in the case previously adverted to, he had never been afforded a fair hearing before said board. It is further alleged that at all times subsequent to September 1, 1948, Mr. English 'was carried on the payroll of the Police Department * * * and was certified by the Civil Service Board as being employed and performing services for the City of Long Beach in accordance with the provisions of the City Charter,' and that he performed the services of a patrolman up to and including April 5, 1950, 'at which time he was compelled to retire from active service by reason of a heart ailment which was directly attributable to the services performed by him as a patrolman in the Police Department of the City of Long Beach throughout the period from July 16, 1942, to April 5, 1950'; that if in fact Mr. English 'had on August 3, 1945, contracted an ailment which prevented him from properly performing his duties as a patrolman * * *, said ailment was directly attributable to and caused by the services performed by him as a patrolman following his original appointment in July of 1942, and therefore was eligible to receive a disability pension at the time said written charges were filed against him in August of 1945, and regardless of whether or not it should eventually be determined by the Civil Service Board that he was physically unable to perform the duties of his position as patrolman, petitioner would be entitled to receive the death benefit pension provided by Section 187, Subd. (4) of the City Charter of the City of Long Beach'; that the Supreme Court of California had not been advised of Mr. English's death at the time it rendered its decision on April 17, 1950, and that because thereof it would be and is now impossible for the civil service board to conduct a fair hearing of the issues presented by the written charges filed on August 3, 1945. Finally it is alleged that on September 1, 1948, the civil service board of the City of Long Beach duly made and entered an order setting aside the purported dismissal of Mr. English and duly reinstated him to his position as patrolman and that at the time of his death he was a member of said department. While counsel for respondents undertake to question the propriety of the filing of this document, it was clearly authorized, Scott v. Superior Court, 205 Cal. 525, 526, 271 P. 906, and appellant was entitled to have the allegations contained therein considered with like effect as if originally set forth in her petition.

We have set forth in some detail the allegations contained in the pleadings because it is in the light thereof that we must judge the propriety of the manner in which this proceeding was disposed of in the trial court. Upon the date to which the hearing had been continued counsel for appellant filed a written request for a jury trial upon the issues of fact raised by the pleadings, and requested the judge presiding to transfer the cause to a trial department inasmuch as the hearing would occupy two or three days. Counsel for respondents, however, moved the court that the proceeding be abated upon the ground that no hearing had as yet been held by the civil service board upon the charges filed against Mr. English on August 3, 1945. To this counsel for the appellant vigorously objected upon the ground, among others, that aside from what might be ultimately determined as to Mr. English's status in the police department subsequent to August 3, 1945, the pleadings raised a triable issue of fact, namely, whether his death occurred as the result of the injuries received by him during the performance of his duties as a patrolman or from sickness caused or aggravated by the discharge thereof during the time between his original appointment to the position on July 16, 1942, and August 3, 1945, throughout which period his status as a member of the department was not in question. In reply counsel for the respondents, while conceding that, if it were established that the death of appellant's husband was directly attributable to injuries or sickness incurred in the line of duty prior to August 3, 1945, she would be entitled to the relief which she seeks, urged that the motion should nonetheless be granted because the issues might be limited if a hearing upon the charges filed against Mr. English was first had before the civil service board.

The trial court granted the motion of counsel for the respondents, and, while stating that he would enter an order abating the proceeding, thereafter caused a judgment to be entered dismissing the petition and discharging the alternative writ. This action was...