Smith v. City of South Bend
| Decision Date | 04 February 1980 |
| Docket Number | No. 3-677A151,3-677A151 |
| Citation | 399 N.E.2d 846 |
| Parties | Edward SMITH, Irene Smith, John Porte, and Mae Hunt, Plaintiffs-Appellants, v. CITY OF SOUTH BEND; Jerry E. Miller, Mayor of the City of South Bend, Indiana; Jack R. Bland, Chief of the Fire Force of the City of South Bend, Indiana; John H. Walsh, Chief of the Police Department of the City of South Bend, Indiana; Board of Trustees of the Firemen's Pension Fund of the City of South Bend, Indiana; Board of Trustees of the Police Pension Fund of the City of South Bend, Indiana, Defendants-Appellees. |
| Court | Indiana Appellate Court |
Roland Obenchain, Milton A. Johnson, South Bend, for plaintiffs-appellants.
Timothy P. McLaughlin, Thomas J. Brunner, Jr., South Bend, for defendants-appellees.
This is an action for declaratory judgment brought against the City of South In general the trial court found that police pensions had been properly computed on the basis of the salary paid to a first-class patrolman and fire pensions had been properly computed on the basis of the salary paid to a first-class fireman. The court also found that during the years in question corporals on the force were not first-class patrolmen nor were engineers on the fire department first-class firemen. It further found that corporals and engineers were paid by rank and not by length of service. Accordingly, judgment was entered in favor of the City.
Bend et al. (City) by retired policemen and firemen and the widows of former policemen and firemen of the City (collectively referred to as Retirees) to recover additional pension benefits for the years 1970 to 1975, inclusive. Police retirees were seeking the difference between the pension benefits already paid and those payable if the pension base had been calculated according to the monthly wage paid to a corporal. Fire retirees sought a similar recomputation based on the monthly salary of an engineer.
The issues raised by this appeal are:
(1) whether the findings of fact and conclusions of law are clearly erroneous;
(2) whether the trial court erred in rejecting the Retirees' offer to read into evidence statements made by the City in response to certain motions to produce; and
(3) whether the trial court improperly rejected the Retirees' offer of Exhibit 4 into evidence.
Retirees assail the findings of fact and conclusions of law as being clearly erroneous. They insist that the only difference between a corporal and a first-class patrolman and an engineer and a first-class fireman is that the corporals and engineers receive additional pay based on length of service. It is suggested that the titles of corporal and engineer were created so that the City would not have to include longevity pay in the computation of pension benefits.
The findings or judgment of the trial court will be found clearly erroneous only when on the entire record the reviewing court is left with the definite and firm conviction that a mistake has been committed. University Casework Systems, Inc. v. Bahre (1977), Ind.App., 362 N.E.2d 155.
The record discloses that on July 28, 1969 the Board of Public Works and Safety (Board) adopted a resolution establishing a salary schedule for the City's police and fire departments which included corporals and engineers. During the years in question the South Bend Police Department rank structure included in decreasing order of salary: (1) chief; (2) division chief; (3) captain; (4) lieutenant; (5) sergeant; (6) corporal; (7) first-class patrolman; (8) patrolman; and (9) officer-in-training. Throughout these same years the rank structure of the South Bend Fire Department included in decreasing order of salary: (1) chief; (2) assistant chief; (3) battalion chief; (4) captain; (5) lieutenant; (6) engineer; (7) fireman first-class; (8) fireman; and (9) fireman-in-training. In both departments, each member of a particular rank received the same salary as all other members of that rank. From the budget requests and pay ordinances it is apparent that as an individual advanced in rank his salary increased. Furthermore, there were varying numbers of policemen who were first-class patrolmen and policemen who were corporals. Similarly, there were varying numbers of firemen who were first-class firemen and firemen who were engineers. A comparison of statistics compiled by the City shows the following:
Firemen First Class Engineers
--------------------- ---------
1969 131 0
1970 7 153
1971 32 142
1972 28 133
1973 35 143
1974 30 134
1975 23 165
Patrolmen Corporals
---------- ---------
1968 68 0
1969 46 0
1970 20 66
1971 33 60
1972 41 57
1973 41 64
1974 51 72
1975 29 74
It was also established that promotions were not automatic. After five years of service first-class patrolmen and firemen became eligible for promotion to the respective ranks of corporal and engineer. The first step in attaining such a promotion was to obtain a recommendation from the police or fire chief. However, if the chief determined that an individual's general performance did not warrant a promotion, it was within his power to withhold any recommendation. In fact four or five first-class patrolmen were not recommended for promotion to the rank of corporal. If a recommendation was obtained then the Board could approve the promotion by resolution and order. Nevertheless the Board was authorized to reject any recommendation from the chiefs.
In light of this evidence, it must be concluded that the findings of fact were not clearly erroneous. The record reveals that salaries were paid by rank and not by length of service. No first-class patrolman or fireman was automatically entitled to a promotion after five years of service. The fact that very few patrolmen or firemen were denied promotions may indicate that the City considered their respective forces to be of a high caliber. It certainly does not lead irresistibly to the conclusion that the City's purpose in creating the ranks of corporal and engineer was to circumvent the pension laws.
IC 1971, 19-1-24-3 (Burns Code Ed.) provides generally that police pensions shall be computed on the basis of the monthly salary of a first-class patrolman. IC 1971, 19-1-37-14 (Burns Code Ed.) provides that fire pensions are to be based on the monthly pay of a first-class fireman. The City acted in accordance with these statutes. To the extent that Retirees believe their pensions ought to be computed on the basis of the salary paid to corporals or engineers, their recourse lies with the Legislature. Here Retirees failed to sustain their burden of proof that corporals and engineers were the same as first-class patrolmen and firemen.
Retirees also contend that the findings were erroneous because: (1) ultimate facts and not evidentiary facts should be set out in the findings of fact; (2) the findings contained conclusions of law; and (3) facts missing in the findings cannot be supplied by the conclusions of law. This contention was disposed of by In re Marriage of Miles (1977), Ind.App., 362 N.E.2d 171 where the court opined:
(Footnote omitted.) 362 N.E.2d at 174.
Special findings are intended to preserve the grounds for error on appeal by disclosing the factual basis for the legal theory applied below. Indianapolis Raceway Park, Inc. v. Curtiss (1979), Ind.App., 386 N.E.2d 724.
Miles, supra, 362 N.E.2d at 174.
As noted earlier, the findings of fact and judgment of the trial court were not clearly erroneous. The findings disclosed that the theory on which the trial court decided the case was that first-class patrolmen and firemen were not corporals and engineers and that salaries were paid by rank rather than length of service. There was no error here.
Retirees next maintain the trial court erred in rejecting their offer to read into evidence statements made by the City in response to certain motions to produce. Prior to trial Retirees filed two motions to produce. The first motion sought the production of written job descriptions adopted for the categories of first-class patrolmen and corporals for the years 1969 through 1975. In their response the City stated that they had no written job descriptions for the categories in question. The second motion sought the production of all documentary evidence setting out the qualifications for the ranks of corporal and engineer other than length of service. The City's response to this motion stated that there was no documentary evidence which established other qualifications for the ranks of corporal or engineer besides length of service.
Retirees first allege that these responses were admissions in...
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