Opinion
41104.
DECIDED JANUARY 28, 1965. REHEARING DENIED FEBRUARY 24, 1965.
Action for retirement benefits. Richmond Superior Court. Before Judge Kennedy.
Cumming, Nixon, Eve, Waller Capers, Samuel C. Waller, for plaintiff in error.
Isaac S. Peebles, Jr., Oliver K. Mixon, Starkey S. Flythe, contra.
Under the terms of the statute controlling the plaintiff's retirement benefits, he was entitled to increases in the amount of benefits received in a like degree as the salary of the position held by him upon retirement increased. Changes in the title of the position and in the rank of the officer currently holding it were immaterial since the duties and responsibilities of the position were substantially the same.
DECIDED JANUARY 28, 1965 — REHEARING DENIED FEBRUARY 24, 1965.
This was a suit brought by William E. Wilhelm against the City Council of Augusta to recover a judgment for a sum of money allegedly owed him by the defendant because of an underpayment since May 1, 1959, in a pension which he was receiving from the City of Augusta.
The record in this case disclosed that Mr. Wilhelm who held the position of "Detective and Fingerprint Expert" with the Augusta Police Department, and as such was in charge of the identification bureau of the department, was retired on November 4, 1946, as being totally and permanently disabled to perform the duties of his position as a result of injuries received by him in the line of duty as a police officer. Upon retirement he received a pension of one-half salary under an Act which contained an escalator provision reading as follows: "[S]hould the amount of the salary of the rank in which he [the pensioner] was serving increase, when such increase takes effect, then he shall receive a pension of one-half the amount of salary the said position or rank is then commanding." Ga. L. 1925, pp. 867, 870.
On November 1, 1948, the title of "Detective and Fingerprint Expert" was abolished by the defendant city council when the position of "Lieutenant in Charge of Identification Bureau as Identification Officer, Fingerprint Expert and Photographer" was created and the officer then in charge of the identification bureau was elected to the new position. Upon the creation of this position, Mr. Wilhelm received as his pension one-half of the salary paid to the officer holding the new title; and this continued until May 1, 1959, when the City Comptroller without prior notice to Mr. Wilhelm reduced his pension from one-half of the amount paid a "Lieutenant" in the police department to one-half of the amount paid a "Detective."
This suit was filed by Mr. Wilhelm on August 21, 1961, to recover the money allegedly owed him because of the action of the City Comptroller; and after the trial of the case, the jury returned a verdict for the plaintiff and judgment was entered for him in the amount of $1,249.44. The defendant filed a motion for new trial on the general grounds and a motion for judgment notwithstanding the verdict, and the exception is to the denial of these motions and to the antecedent order of court overruling the defendant's general demurrer to the petition.
The evidence in this case clearly authorized the finding that the position of "Detective and Fingerprint Expert" held by the plaintiff upon retirement and that of "Lieutenant in Charge of Identification Bureau as Identification Officer, Fingerprint Expert and Photographer" were substantially the same in so far as duties and responsibilities were concerned, the major differences being in title and pay. Where the duties and responsibilities of the position are substantially the same, any other differences become immaterial.
The plaintiff was thus entitled to have his retirement pay computed at one-half the salary paid the officer holding this position in view of the express terms of the escalator provision of the retirement Act that the retired employee "shall receive a pension of one-half the amount of salary the said position or rank is then commanding." (Emphasis supplied).
To hold, as contended by the defendant, that the plaintiff's pension should be computed at one-half of the salary paid to a "Detective" in the police department rather than one-half of the salary paid to the officer currently in the position held by the plaintiff upon retirement, would require that we ignore the plain and unambiguous language of the pension Act, as set forth above, and would do violence to the purpose of the Act, as expressed in its preamble, "to provide that as the salary of the respective positions the retired employees once held, increases, the amount paid to such retired employees as pensions shall increase in a like degree." Ga. L. 1925, p. 867. Where construction is needed, the rule is that pension Acts must be liberally construed in favor of the rights of the pensioner. City of Macon v. Herrington, 198 Ga. 576, 589 ( 32 S.E.2d 517).
The plaintiff's petition stated a cause of action, and the evidence adduced on the trial of the case authorized the verdict in his behalf.
Judgment affirmed. Felton, C. J., and Russell, J., concur.