Kern v. State ex rel. Bess

• Decision Date: 05 November 1937
• Docket Number: 26879.
• Citation: 10 N.E.2d 915,212 Ind. 611
• Parties: KERN, Mayor, et al. v. STATE ex rel. BESS.
• Court: Indiana Supreme Court

10 N.E.2d 915

212 Ind. 611

KERN, Mayor, et al. v. STATE ex rel. BESS.

No. 26879.

Supreme Court of Indiana

November 5, 1937

Appeal from Superior Court, Marion County; Joseph T. Markey, judge.

Reginald H. Sullivan and Edw. H. Knight, both of Indianapolis, for appellants.

Holmes & Holmes, of Indianapolis, for appellee.

FANSLER Chief Justice.

This is an action to mandate the trustees of the Indianapolis police pension fund to place the relatrix upon the pension roll and to pay her the amount prescribed by law as the widow of Charles G. Bess, a deceased member of the Indianapolis police force, and to pay her the statutory burial fund. The evidence was stipulated and agreed upon. The cause was tried by the court, and there was judgment mandating the defendants to pay the amounts demanded.

Error is assigned upon the overruling of appellants' demurrer but we need consider only the error assigned upon the overruling of appellants' motion for a new trial, which questions the sufficiency of the evidence.

The facts are: That on July 13, 1915, Charles G. Bess, the husband of relatrix, became a member of the police department, and thereafter paid his assessments to the police pension fund. On June 24, 1919, 'because of disability arising from an operation for stomach ulcers,' he was, upon recommendation of the police surgeon, retired from active duty on the police force to the pension fund. The recommendation of the surgeon was by letter, reading as follows: 'I recommend the retirement to the pension of Charles Bess, due to physical disability caused by an operation for gastric ulcer.' There was a motion before the board that the retirement be made, which was unanimously carried, and the retirement was treated as effective as of June 24, 1919. From that date until his death from a cerebral hemorrhage, contributed to by stomach ulcers, on March 5 1936, the trustees of the pension fund paid him each month an allotted pension as provided by law. On April 28, 1917, the relatrix became his wife, and continued to live with him, and they had one child, now eighteen years of age. Upon the death of her husband, relatrix notified the board of his death, and demanded that she be allowed the pension as surviving widow, as provided by law, and that she be paid the burial fund provided by law. Her demand was refused upon the ground that her husband was retired because of disability caused by an operation for gastric ulcer, having served only three years and eleven months in the department, and that under the law he was required to serve five years before he was entitled to a pension, unless injured in line of active duty.

By chapter 31 of the Acts of 1919 (Acts 1919, p. 72) the pension law was amended to provide that no member or his dependents shall be entitled to share in any of the benefits provided by the act 'until he shall have been a member of such police force at least five (5) consecutive years and shall have passed the examination hereinafter provided for, except in case such member shall receive a personal injury from violent external cause while in the actual discharge of his duty as such police officer, in which case benefits due for injury, death or disability directly resulting therefrom, shall be payable regardless of length of the member's service.' Section 1. In section 2 of the act it is provided: 'Such fund shall be used and devoted to the following purposes: First. To the payment of such temporary benefits as the board of trustees may determine, not in excess, however, of fity dollars ($50) per month to such...