
    FIELDS, Plaintiff-Appellant, v. McEVOY et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 4085.
    Decided April 19, 1960.
    
      Mr. Marvin Traxler, for plaintiff-appellant.
    
      Mr. S. S. Fekett, law director, and Mr. John J. Leskovan■y, assistant law director, for defendant-appellee.
    For further history see Omnibus Index in bound Jume.
   Phillips, J.

Plaintiff appeals on questions of law from a dgment of the court of common pleas dismissing his petition r a writ of mandamus to compel the Trustees of Youngstown dice Relief and Pension Fund to award him a pension for irmanent total disability as provided by Section 741.49 (B), rvised Code.

Plaintiff is forty-six years of age and the head of a family, e has been a member of the Youngstown Police Department ice December 20, 1937, holding the rank of sergeant and com-ising a period of twenty-one years of continuous service, aintiff’s duties consisted of patroling the downtown section the city in a cruiser car, accompanied by two patrolmen assigned to him for such purpose, in a Cadillac sedan armed wi a machine gun, a tear-gas gun, and several riot guns. TJ cruiser was also used to check patrolmen walking their bea downtown.

On May 1, 1949, plaintiff was sitting in the cruiser durh a rain while on patroling duty. The vehicle was parked wi its lights on under a street light. A car proceeding from ti rear of the cruiser at a speed of fifty miles per hour ramm< into the rear of the cruiser and knocked it about thirty fe< The impact was so violent that it tore off the emergency brak and a seat from the floor, causing the seat and patrolman M Guire, who sat in the back to be thrown on him, knocking hi against the dashboard.

At page 14 of the record plaintiff stated:—

“I was hit so hard I flew up against the dash and then knocked me down underneath the seat after the seat was to loose from the floor.”

Plaintiff had three admissions to Youngstown Hospitals the years 1951 and 1956, and since the injury has suffered frc various complications and undergone several operations. ! rays taken at Youngstown Hospital on February 2,1956, show diaphragmatic hernia which his attending physicians attribut to the automobile accident in 1949. Plaintiff’s attending phyi cians found him permanently and totally disabled from p( forming his duties as a member of the Police Department.

The Police Pension Board awarded him a limited pensi of $181.33 per month under the provisions of Section 741.49 (I Bevised Code. Plaintiff claims he should receive a pensi of $295.49 under Section 741.49 (B), Bevised Code, as a pern nent total disability.

Plaintiff states the board contends claimant’s present d: ability did not result from the automobile accident in 19' Plaintiff contends that the preponderance of medical eviden shows a causal relationship of the diaphragmatic hernia to t injury in 1949 in the course of employment. Plaintiff furth contends that the board’s denial of benefits as provided by S< tion 741.49 (B) was a gross abuse of discretion on the ps of the Pension Board, and is contrary to law.

Plaintiff charges error as follows:—

“1. The findings of the Pension Board are against t anifest weight of the evidence and not supported by any sjeetive medical evidence.
“2. Gross abuse of discretion on the part of said Pension oard in refusing to award appellant the disability benefits as rovided by Section 731.49 (B), Revised Code.
“3. Error of the trial court in finding no abuse of discre-on on the part of said Pension Board.
“4. The judgment of the trial court is contrary to law.”

Plaintiff further contends that the Pension Board abused s discretion in denying claimant the benefits as a permanent >tal disability under Section 741.49 (B), Revised Code, war-fflted by the evidence; and that the judgment of the trial court lould be reversed and a writ of mandamus issued directing te board to pay claimant the disability benefits as provided y said section.

Defendant contends the issues present the following ques-ons:—

1. Is plaintiff entitled to a pension based on total permanent isability, which plaintiff contends resulted from injuries sus-tined during the performance of his duty?

2. Did the Pension board act within its discretion when it >und that the total permanent disability was not the result of ijuries sustained by plaintiff during the performance of his aty?

There is no necessity to discuss the assignments of error' jparately.

On April 17,1958, plaintiff submitted to the Chief of Police is resignation from the Police Department. On April 30, 1958, íe last day plaintiff was employed as a policeman, he applied >r a pension. Plaintiff was injured on May 1, 1949. A period c nine years passed between the date of injury and the date l resignation from the Police Department. Plaintiff had been orking regularly during this nine year period.

Plaintiff’s retirement became effective May 1, 1958. To stain full pension disability benefits plaintiff must prove to Le Pension Board that the hernia on May 1,1958, resulted from guries sustained May 1, 1949.

It appears from all the medical history that plaintiff’s srnia was not observed until almost seven years after plain-ff was injured.

Did the members of the Pension Board act according to thei discretion, or did they abuse their discretion?

1 Ohio Jurisprudence (2nd), Section 186, pages 577 an 578, comments on “abuse of discretion” as follows:—

“Discretion may be said to be abused where the action con plained of has been arbitrary or capricious or based on pe: sonal, selfish, or fraudulent motives, or on false information c under total lack of authority to act, where it amounts to evasio of a positive duty, or there has been a refusal to consider pe tinent evidence or to hear the parties when so required, * * *
“The term ‘abuse of discretion’ connotes more than a error of law or of judgment; it implies an unreasonable, arb trary, or unconscionable attitude. * *■

Section 188, Page 580, states:—

“* * * The general rule is that administrative orders an findings will not be disturbed unless they are against the man fest weight of the evidence or not supported by any substanti; evidence, even though the court should conclude that it wí against the greater weight of the evidence.”

Section 189, page 582, states:—

“The question is not whether the court would have mac a different order under the evidence but whether the Commi sion was free from an abuse of discretion and whether the ordc of the Commission is unlawful or unreasonable.”

The trial court in its opinion said:—

“There are two issues. The first is whether relator permanently and totally disabled. On this the evidence disclose relator is disabled totally and permanently as a police officer.
“The second issue is whether his disability was a resu of the performance of his official duties. On this there is conflict of evidence though the weight of the evidence seems i favor relator’s contention.
“Mandamus, however, does not lie to control the discretic given by law to an administrative board, unless the court fine an abuse of discretion in that the board’s decision was arb trary. * *

The trial court found that the trustees of the Youngstov Police Belief and Pension fund acting as an administrate board did not abuse their discretion nor act in an arbitral anner, and for that reason denied and dismissed the petition ; relator’s costs.

We are not convinced that the hernia which was observed i February 2, 1956, was caused by the injury sustained on 'ay 1, 1949.

We are unable to conclude that relator presents a case Lrough which this court would be warranted in issuing the rtraordinary writ of mandamus.

A determination by the Trustees of the Youngstown Police elief and Pension Fund that a claimant is not entitled to a snsion under the rules, in the absence of a showing of bad lith or abuse of discretion, is not reviewable and can not be mtrolled by mandamus. See State, ex rel. Little, v. Selby, 22 Ohio Law Reporter, 410.

We are unable to determine that relator presents evidence y which a court would be warranted in issuing the extra-rdinary writ of mandamus, and therefore the judgment of the >urt of common pleas must be affirmed.

GrBirriTH, P. J., and LoNahue, J., concur.  