Sirgo v. Board of Trustees of the Firemen's Pension & Relief Fund of the New Orleans Fire Department

2 Pelt. 365, 1919 La. App. LEXIS 43
CourtLouisiana Court of Appeal
DecidedApril 24, 1919
DocketNo. 7527
StatusPublished

This text of 2 Pelt. 365 (Sirgo v. Board of Trustees of the Firemen's Pension & Relief Fund of the New Orleans Fire Department) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sirgo v. Board of Trustees of the Firemen's Pension & Relief Fund of the New Orleans Fire Department, 2 Pelt. 365, 1919 La. App. LEXIS 43 (La. Ct. App. 1919).

Opinion

CHARLES F. CLAIBORNE, JUDGE.

This case presents a contest between the widow of a deceased fireman on the one hand, and the beneficiary consti-ti^ed by the deceased on the other hand, for a death benefit under Act 43 of 1902 p. 51 as amended by Act 27 of 1914 p. 85.

Louis F. Sirgo, Sr. alleges that Joseph Escobedo, his uncle, was a member of the New Orleans Fire Department at the date of his death on February 9th, 1917; that -under the Acts above mentioned creating the Firemen*s Pension and Relief Fund each member of the Fire Department is authorized to designate a beneficiary to whom $1000.00 shall be paid upon the death of the member, as a death benefit; that the deceased member Joseph Escobedo filed on May 16th, 1916 with the Board of Trustees of the Fund, on a form furnished by said Board, his death benefit, by which he made petitioner his beneficiary; that the Board refuses to pay petitioner $1000.00 which he asks that the Board be condemned to pay to him.

The defendant Board admitted all the allegations of the petition, but denied that_petitioner was a nephew of Escobedo *r that Escobedo yras*»bnti tlyn to designate a beneficiary to whom $1000,00 is to be paid, at the timé of the death of the said member,' as a death benefit11; that under the acts above mentioned creating the Board it was its duty to appropriate from the funds of the Board the sum of $1000 to be paid to the beneficiary designated by the Section 21 of Act 43 of 1902 as amended by Act 27 of 1914;. that the Widow of Joseph Escobedo is also claiming from the Board the aforesaid sum of $1000.00, and has advised said Board that she will institute legal proceedings for the recov[367]*367ery of the same; therefore the Board deposited the sum of $1000.00 in the Registry of the Court for such disposition as the Court may deem legal, and prayed that Widow Escobedo he made a party to this suit.

Widow Escobedo filed her answer, and denied tfc* any designation of beneficiary other than the wife or minor children or dependent mother of the fireman could legally b® made; she, specially denied that the petitioner Sirgo, had any legal right to said death benefit, and averred that his designation as beneficiary was null and void, because he was neither the wife, nor the child, nor dependent mother of the deceased; she averred that Escobedo left no children and that therefore as his widow^she is entitled to the death benefit of $1000.00 arising from the death of her husband under section 22 of the Act of 1902 and section 21 of the Act of 1914; she further averred that in the event the Court was of opinion that under section 22 of the Act of 1914 a person other than a surviving widow, minor children or dependent mother could be made beneficiary, that according to the title of the Act of 1902 and according to the terms of the act and more particularly section 22 all benefits went to the fireman while alive, and after his death to his wife, children and mother; that the title of the Act of 1914 makes no reference to the fact that said benefits could be made payable to others and even to strangers in no wise dependent upon said fireman; and that if section 22 of the Act of 1914 can be construed so as to allow the deceased to designate as his beneficiary the plaintiff Sirgo, then said section 22 is unconstitutional, null and void, as violative of Article 31 of the Constitutions of 1898 and 1913, because no reference is made in said titles to the allowance of benefits to be made to such persons not dependant upon the fireman, either in the Act of 1902 or in the Act of 1914; she further avers that if the Court holds that the object is expressed in the Act of 1914, then the said act is unconstitutional because the title then embraces two objects^ namely: The creation of a mutual benefit association and a life insurance company, which is also in violation of Article 31 of the Constitutions of 1898 and 1913.

It was admitted that Sirgo was a nephew of Joseph Escobedo; [368]*368that he Was duly designated on the regular font of the lire Department atr his beneficiar?; that lire. Escobedo is his widow, and that she is. still unmarried; that she and her husband did not live together for about twenty years although not legally Separated, and that she was á good woman; that Joseph Escobedo died without leaving any children or mother.

Ihere was judgment in favor of Widow Escobedo decreeing her entitled to the (1000.00, and against Sirgo, rejecting his demand. He has appealed.

The first question presented is whether the Act of 1902 or the Act of 1914 amendatory thereto designate and fix the beneficiaries, or whether the fireman has a right himself to designate the beneficiary.

The title of Act 43 of 1902 p. 51 reads;

"An act creating a Board of Trustees of the Firemen's Pension and Relief Fund for the City of Hew Orleans; providing for the pensioning of disabled firemen, and the widows or minor children or widowed mothers of deceased firemen; authorizing the retirement from service, and relieving and pensioning members of the fire department; providing for the raiding of funds". Section 1 provides:
"That the City of Hew Orleans having a paid fire department, one (1) per centum of all revenues collected or received by said city from licenses issued by said city, shall be set apart by the treasurer of said city $o whom the same Shall be paid, as a fund for the pensioning of disabled and superannuated members of the fire department, and of the widows and orphans of deceased members of the fire department, or of dependent mothers of deceased members of the fire department, and to relieve said members in case of temporary disablement)1.

Section 2 designates the persons who shall compose the ■Board of Trustees of the Firemen's Pension and Relief Fund".

Section 3:

"That the said board shall have exclusive control and management of the fund mentioned in the first section of this act, and of all money donated, paid or assesed [369]*369for the relief, or pensioning of disabled superannuated and retired members of the fire department, their widows and minor children, or widowed mother" &c &c.

Section 4 prescribes the duties of the City Treasurer in relation to funds paid by Insurance companies.

Section 5 dedicates to this fund all forfeiture® and fines imposed by the Board of fire’ Commissioners.

Section 6 dedicates to this fund all proceeds of sale of the personal property of the said fire Department.

Section 7 dedicates to this fund all donations to the fire Department, - and provides-for the accumulation of $200flQ0.00.

Section 8 authorizes the Board to invest this fund.

Section 9 dedicates the interest of said fund "to the payment of pensions and relief under this act".

Section 10 directs the manner in which the money of the fund shall be paid out.

Section 11 provides for the payment of a sum of money to a disabled or retired fireman.

Section 12 provides for the payment, in case of death of the fireman, of a sum of money to his widow and minor children, and in default of these, to his widowed mother.

Section .13 provides for partial payments in case the fund is insufficient.

Section 14 provides for the payment to a retired firdman.

Section 15 directs the keeping of records of retired firemen and the action of the Board regarding then. It further provides:

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Bluebook (online)
2 Pelt. 365, 1919 La. App. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sirgo-v-board-of-trustees-of-the-firemens-pension-relief-fund-of-the-lactapp-1919.