# STATE Ex VASTINE v. CINCINNATI (City)

> Ohio Court of Appeals · January 11, 1937 · 56 Ohio App. 526

URL: https://www.frixlaw.com/law-library/cases/3728007

## Case

- **Full name:** State Ex Rel. Vastine v. Cincinnati City
- **Court:** Ohio Court of Appeals
- **Decided:** January 11, 1937
- **Citations:** 56 Ohio App. 526; 24 Ohio Law. Abs. 97; 9 Ohio Op. 512; 11 N.E.2d 188; 1937 Ohio App. LEXIS 409
- **Precedential status:** Published
- **Opinion:** Concurrence by Ross
- **Judges:** Hamilton, Tatgenhorst, Ross
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

CONCURRING OPINION
By ROSS, J.
Original action in mandamus.
George Punke was an employe in the Highway Department of the City of Cincinnati, and became entitled by reason of his position, compliance, and the provisions of the City Retirement System to certain benefits provided for such city employes.
The relator is the daughter of a sister of the first wife of deceased. Punke died childless. His father and mother predeceased him. He left a widow.
The relator was designated by the deceased employe as the beneficiary of death benefits provided for such employe by the system. This designation was made at the time deceased became a member of the department. The relator was then 17 years of age. She had been an inmate of decedent’s home ever since she was seven years of age, when, upon the death of her father, she came to live with him. Her mother also lived with' decedent. Both mother and daughter rendered decedent services in his home and also in and about his garage business. The relator was reared, educated, and maintained by decedent until his second marriage in September, 1934. She then left his home.
His widow was the beneficiary of his estate, amounting to some $30,000. Funke died in April, 1936. The widow has made claim to the death benefits of which relator was the original designated beneficiary. At the time of the decedent’s death, the designation had not been changed.
The respondents, the City of Cincinnati and the trustees of the retirement System of such city have taken no action upon the claim either of the relator or of the widow.
To this proceeding, the city has filed an answer which is in the nature of a bill of interpleader, stating because of the adverse claims, hereinbefore set out, it refuses to pay either claimant the fund in question. It further states: “that it is ignorant of the rights of the respective claimants, and . does not know to which it can safely pay the money; that it is ready and willing to pay the same as the court may direct, and hereby offers to do so in order that the said claimants may settle their claims between themselves.” The prayer of the answer is "for an order of this court to pay said sum of $659.66 to whomsoever the court may direct.”
The respondents, other than the City has made no answer to the petition, when the case was submitted.
Article IV, §6 of the Constitution of Ohio fixes the original jurisdiction of this court. This original jurisdiction does not include interpleader either statutory or equitable. An answer or cross-petition is entitled to no greater consideration than a petition, when the jurisdiction of a court over the subject-matter is involved. In other words, if a court would not have original jurisdiction of the subject-matter of a cross-petition or answer, if it were contained in a petition, it does not have such jurisdiction because contained in an answer or cross-petition filed in response to a petition, containing a cause of action the sub
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ject-matter of which is within the original jurisdiction of this court.
The answer filed in this action is therefore valueless, and may be ignored.
The questions then presented by the petition are: Does the relator have a clear legal right to the relief requested? Has she an adequate remedy at law? See: 25 Ohio Jur., 997, and note 23, supplement. State ex Miller v Industrial Commission, 128 Oh St 254.
We prefer to so consider the matter, rather "than to take summary action upon the' failure of the respondents to file a valid defense to making the alternative writ permanent.
The right to maintain this action of mandamus seems to be clearly authorized by the case of State ex v Conners et, 122 Oh St 359, wherein it is stated in paragraphs 1, 2 and 3 of the syllabus:
“1. The police relief fund of the City of Cincinnati was established and is maintained by virtue and under authority of statutory law, and the powers of the board of trustees of the police relief fund with respect to such fund are the powers conferred by statute.
“2. A discretion has not been conferred by statute upon the board of trustees of the police relief fund to deny a pension to a retired or dismissed police officer who is entitled to a pension by the rules of such board duly adopted and in force at the date of his retirement or dismissal.
“3. Rule 45 of the board of trustees of the police relief fund of the City of Cincinnati, ‘Any member of the Police Department who has served fifteen consecutive years, who is discharged for any offense other than dishonesty, cowardice or being convicted of a felony, shall, upon the approval of the Board of Trustees of the Police Relief Fund, be paid a pension from said fund in amount equal to $2.00 per month for each year of consecutive service, provided the pension under this rule shall in no case be more than $50.00 per month,’ does not confer upon such board a discretion to deny .a pension to a ‘member of the police department who has served fifteen consecutive years, who is discharged for any offense other than dishonesty, cowardice, or being convicted of a felony’.”
In the case at bar the right to benefit is governed by the ordinance of the city:
“D. Ordinary Death Benefits:
“(I) Upon the receipt of proper proofs by the Board of the death of a member in service which is not the result of an accident in the actual performance of duty, as defined in paragraph E (1) of this section, there shall be paid to such person having an insurable interest in his life as he shall have nominated by written designation duly executed and filed with the Board, or if there be no such designated person, then to his legal representative:
(a) His accumulated contributions.
(b) A benefit equal to a lump sum payment of fifty per centum of the compensation received by the employee during the year immediately preceding the death.”
While in the Conners case the appropriate statute is involved, we consider the holding as applicable to an appropriate city ordinance. Upon the death of- the employe the rights of the beneficiary became fixed beyond' the discretion of the board. No discretion is vested in the board to deny the rights of relator, if she is entitled to the benefits provided for in the ordinance.
That the regulations may be changed before death is beside the question. The case of Mell et, Trustees v State ex Fritz, 130 Oh St 306, is not applicable.
The ordinance in question requires two things must exist in the payee of the benefits: — First, that such person must have an insurable interest. The language used requires such characteristic to exist at the time of payment, “shall be paid to such person having an insurable interest.” Secondly, the payee must have been designated by the employe. As to the latter requirement, the relator, qualifies without question. Had she an insurable interest at the time payment was due? Her relationship as a protege, helper about the house and business of the decedent for many years, her relationship by marriage all taken together unqualifiedly justify such conclusion as to the period up to within two years of the death of the employe, when he again married. In 14 R.C.L., §96, p. 919, it is stated:
“While all the authorities are agreed that an interest of some sort must exist in the case of life insurance, there is not exact harmony on the question of what constitutes the requisite interest. There are cases which hold that the interest must be a pecuniary one and that near relationship is not per se enough. The better view, however, seems to be that any reasonable exoectation of pecuniary benefit or advantage from the continued life of another creates an insurable interest in' such life. Accordingly it is deemed unnecessary that
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the advantage or benefit be capable of pecuniary estimation, but an insurable interest arises from any relation, whether of consanguinity or affinity, which is such as warrants the conclusion that the beneficiary had an interest, whether pecuniary or arising from dependence or natural affection, in the life of the person insured. But in all cases there must be a reasonable ground founded on the relations 'of the partios to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the continuance of the life of the assured.”
The reason existing in the policy of the state requiring one who insures another’s life for his own benefit to have a sound reason for desiring the continuance of the life of the assured is obvious. To permit any person, without such reason and cause to desire the continuance of the life, of one whose life he insures, would be at least an indirect invitation to the unserupulous to profit by death of the insured. The fact that such considerations are completely foreign to the issues here presented makes it extremely difficult to find direct authority in point. Public policy is not here involved, only legislative construction. The situation here presented is in principle rather than of one who insures his life for another, against which there is no restriction. It is only because of the peculiar, and we may properly say unconsidered language of the ordinance that we find ourselves presented with the necessity of referring to general principles of insurance in order that we may determine whether the relator is within the provisions of the language used in the ordinance, and has an insurable interest.
In considering what has been written upon the subject, however, the factors just mentioned are entitled to weight and those cases containing rigorous inhibitions against recovery certainly have no application. See 32 C. J. 1110.
Although it must be admitted the relator had no legal claim upon the deceased employe, certainly his kindness and their association for many years coupled with her services in his interest, both in his home and business, would justify the relator in believing that should adversity fall upon her, she could in all confidence look to the deceased for aid and assistance. His continued life was to her advantage. His death, a distinct loss. His remarriage would not, of itself, foreclose the right to such normal expectancy. Other matters might be considered strengthening a conclusion in favor of the relator. The trustees and the city do not in fact dispute the claim of the relator. The real contestant is the widow, who has no standing in this action in spite of the fact she was erroneously made a party.
An alternative writ has been issued, and no just reason has been advanced why the relator should not have a permanent writ, other than that which the court sua sponte has presented to itself, as herein considered. The relator being entitled to the benefits under the ordinance, no discretion in the trustees has been conferred by the ordinance to deny the benefits, and the writ will be made permanent.
TATGENHORST, PJ, concurs with ROSS, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3728007. Public record. Not legal advice.