State ex rel. Hammond v. Public Emp. Retirement System, 71-449

• Decision Date: 15 March 1972
• Docket Number: No. 71-449,71-449
• Citation: 58 O.O.2d 403,29 Ohio St.2d 192,280 N.E.2d 904
• Parties: , 58 O.O.2d 403 The STATE ex rel. HAMMOND v. PUBLIC EMPLOYEES RETIREMENT SYSTEM.
• Court: Ohio Supreme Court

Page 192

29 Ohio St.2d 192

280 N.E.2d 904, 58 O.O.2d 403

The STATE ex rel. HAMMOND v. PUBLIC EMPLOYEES RETIREMENT SYSTEM.

No. 71-449.

Supreme Court of Ohio.

March 15, 1972.

Kellar, Blair & Kunkel, Delaware, for relator.

William J. Brown, Atty. Gen., and George P. Parthemos, Columbus, for respondent.

PER CURIAM.

The only issue is whether respondent is under a duty specially enjoined by law to continue the monthly payment to a trustee of the property under the foregoing circumstances.

Relator contends that, in the absence of proof of death, he, as trustee, is entitled to receive the monthly payments; that the burden of showing proof of death is upon respondent; and that a presumption of death in the case of an unexplained absence for seven or more years does not arise until the date of the court decree authorized by R.C. § 2121.04, a section of the Presumed Decedents' Act.

Relator urges also that the right to the retirement payment is vested by virtue of R.C. § 145.561, which reads as follows:

'The granting of a retirement allowance, annuity, pension, or other benefit to any retirant or beneficiary pursuant to action of the public employees retirement board vests a right in such person, so long as he remains the recipient of any benefit of the funds established by section 145.23 of the Revised Code, to receive such retirement allowance, annuity, pension, or other benefit at the rate fixed at the time of granting such retirement allowance, annuity, pension, or other benefit. Such right shall also be vested with equal effect in the recipient of a grant heretofore made from any of the funds named in section 145.23 of the Revised Code.'

Respondent argues that where the evidence shows that a person was last seen in a state of imminent peril, an inference of immediate death may be drawn. Relator views the evidence submitted otherwise, to the effect that Miss Hammond was not in imminent peril, being an experienced hiker, and that in such a case the inference does not arise. In view of our disposition of the matter, we need not evaluate the merits of this issue.

Neither do we find R.C. § 145.561 controlling, as it purports to guarantee only that a recipient will continue to receive his annuity at the rate fixed at the time such annuity was granted.

The rights of a public employee to a retirement annuity are derived from R.C. Chapter 145. We have found no authority, and relator has set forth none, requiring respondent to continue making monthly payments to a trustee where a retirant has disappeared and has not thereafter been heard from. In the event she reappears, respondent must then make current her payments.

Marjorie Hammond's right to receive payments from the respondent is a personal right, continuing only during her actual lifetime. Although for certain purposes, the Presumed Decedents' Act provides that the 'presumption of death shall be regarded as having arisen as of the date of such decree' (R.C. § 2121.04), such 'presumption' does not prove the existence of actual life prior to the decree, so as to enable a third person to receive property through or on behalf of the 'missing' person. See Baker v. Myers (1953), 160 Ohio St. 376, 116 N.E.2d 711.

Where, as in Baker, the right of a party to recover is predicated on whether a person is actually alive at a particular time or times, the burden of proof is upon the party so claiming. (Paragraph one of syllabus of Baker v. Myers, supra.)

For mandamus to issue, in this case, relator must show a right, clear and free from doubt, as well as a duty specially enjoined by law to make retirement payments to a trustee of the missing retirant. State ex rel. Szekely, v. Indus. Comm. (1968), 15 Ohio St.2d 237, 239 N.E.2d 665, and State ex rel. Spellmire v. Kauer (1962), 173 Ohio St. 279, 181 N.E.2d 695. As we find that relator has failed to satisfy these requirements, the writ is denied.

Writ denied.

C. WILLIAM O'NEILL, C. J., and CORRIGAN, STERN, LEACH and BROWN, JJ., concur.

SCHNEIDER and HERBERT, JJ., dissent.

HERBERT, Justice (dissenting).

As a result of the decision by the majority in this case, Marjorie Hammond will be deprived of at least the investment potential of thousands of dollars, due to her under her contract with the Public Employees Retirement System at the rate of $262.37 per month and payable until her death. Furthermore, this deprivation will be effected without notice and hearing, in a totally ex parte proceeding, conducted by a person or persons not clearly empowered to do so.

In 1966, Marjorie Hammond was issued a Certificate of Retirement by the respondent P. E. R. S. It provided that she was to receive 'an annuity to be paid throughout (her) life only and terminating at (her) death with no further payment * * *.' The payments under the plan were made until July of 1970, when Miss Hammond apparently disappeared. At that time, the annuity payments were stopped by the P. E. R. S. upon its assumption that Miss Hammond was no longer entitled to them, despite a total absence of statutory authority for that obligor to take such action. The insurmountable fact remains that legally, Marjorie Hammond is not now, and has not been, dead.

Retirant's brother, as her court appointed 'trustee for absentee' under R.C. § 2119.01 et seq., stands ready and legally...