Bennett v. Brady

California Court of Appeal Oct 16, 1936 No. Civ. 9968Published

Before: Gray

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Holding. A petition for a writ of mandate to compel the granting of a pension fails to state a cause of action if it does not allege facts showing that the administrative board acted arbitrarily or that the evidence before the board was so one-sided that no conclusion other than the petitioner's entitlement could be reached. Because the evidence regarding the cause of the officer's death was conflicting, the board's decision was within its discretion and not subject to control by mandate.

Issues

Whether a petition for a writ of mandate states a cause of action when it fails to allege that the administrative board acted arbitrarily, capriciously, or fraudulently.
Whether a court may issue a writ of mandate to compel the granting of a pension when the evidence before the administrative board was conflicting.

Disposition. affirmed

Quotations verified verbatim against the opinion

“To state a cause of action, the petition must set forth facts showing that a pension ought to have been allowed, and that respondents’ refusal to do so was an abuse of their discretion.”

“Since the evidence as to the cause of death was conflicting, respondents were authorized to decide such conflict and their decision cannot be controlled by mandate.”

GRAY, J.,

pro

tem.

The widow of a deceased police officer petitioned for the issuance of a writ of mandate compelling1 respondents to grant her a pension under the provisions of section 4, chapter 10, article VIII, of the former San Francisco charter. (Stats. 1917, p. 1708.) A judgment denying her such writ was entered after a general demurrer to her petition had been sustained without leave to amend. Her appeal presents the question as to whether or not her petition states a cause of action.

Briefly stating its essentials, her petition alleges that she is the unmarried widow of William M. Bennett, who at the time of his death had been a member of the San Francisco police department continuously since 1914 and had held the rank of lieutenant since December, 1929; that on October 30, 1931, while in the performance of his duties as such lieutenant, he had received injuries which directly and proximately caused his death on March 2, 1934, and that she had previously filed with respondents an application stating such facts and requesting the pension allowed by the charter. Her petition further states that respondents had heard her application: that she had presented to them evidence

“which established and proved all of the allegations”

of her application, but that notwithstanding the presentation of such evidence respondents had refused to award her the pension. Copies of her application, and of the transcript of the evidence taken at the hearings, are attached to and by reference incorporated in the petition.

[116]

In passing upon the sufficiency of the petition to state a cause of action, the attached transcript of evidence cannot be considered for the purpose of supplying any deficiency in its allegations.

(People

Reid,

195 Cal. 249 [232 Pac. 457, 36 A. L. R. 1435].) A petition in substantially the same form was held in

Hogan

Bennett v. Brady

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GRAY, J.,

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