Lead Opinion
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.
Eelator contends that, in the absence of proof of death, he, as trustee, is entitled to receive the monthly payments; that the burden оf showing proof of death is upon respondent; and that a presumption of death in the case of an unexplained absence for seven or morе years does not arise until the date of the court decree authorized by E. C. 2121.04, a section of the Presumed Decedents’ Act.
Eelator urges also that the right to the retirement payment is vested by virtue of E. 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 Eetirement Board vests a right in such person, so long as he remains*194 the recipient of any benеfit 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 аt 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 lаst 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 Hаmmond 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 аnnuity 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, rеquiring respondent to continue making monthly payments to a trustee where a retirant has disappeared and has not thereafter been heard from. In the еvent 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),
Where, as in Baker, the right of a party to recover is
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),
Writ denied.
Dissenting Opinion
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 Eetirement 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 pеrsons not clearly empowered to do so.
In 1966, Marjorie Hammond was isued a Certificate of Eetirement by the respondent P. E. E. S. It provided that she was to reсeive “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. E. S. upon its assumption that Miss Hammond was no longer entitled to them, despite a total аbsence of statutory authority for that obligor to take such action. The insurmountable fact remains that,
Eetirant’s brother, as her court appointed “trustee for absentee” under E. C. 2119.01 et seq., stands ready and legally obligated to accept and manage the рayments for her, under court supervision, and, in my opinion, the P. E. E. S. is under the clear duty to either continue the payments it agreed to make during Marjorie Hammond’s lifetime or establish the terminаtion of that lifetime in an adversary legal proceeding. This is in keeping with our prior observation that statutes of this general nature are to be liberally construed, State, ex rel. Hanrahan, v. Zupnik (1954),
Additionally, there seems to be no question that membership in the Public Employees Eetirement System constitutes “a contract between the member and the system, into which was incorporated the legislation creating and regulating the insurance.” Jenkins v. Public Employees Retirement System (1961),
The majority opinion cites Baker v. Myers, supra (
In the case of Marjorie Hammond, the ending of the annuity payments apparently -will not cause physical hardship. The record discloses no dependents who relied upon her for food, clothing or shelter,. However, in future cases, where there are such dependents, the majority’s decision in this case could well precipitate cruel and unwarranted consequences. While the majority states, as thе sheerest of dictum, that the respondent “must then make current” this retirant’s payments “in the event she reappears,” what will be done, upon such reappеarance, to compensate for the lapsed insurance policies,
The writ prayed for should be allowed and the guidance needed by the multi-billion dollar retirement systems of this state should be carefully provided in a full mаjority opinion.
Notes
Respondent itself, in this case, easts doubt upon the efficacy of its own ex parte determination of death by continuing to pay the instant retirant’s medical insurance premiums. Subsequent to the announcement of the majority opinion, it would appear likely that such self-doubts will vanish, along with the insurance premium payments,