In McPadden v. Morris, 126 Conn. 654, 13 A.2d 679 (1940), we said (p. 659) "[t]he phrase `living with him' and similar wording has uniformly been interpreted as meaning actually residing with, making a home with.Summary of this case from Kaplan v. Kaplan
A section of the charter of Bridgeport provides for a pension to the widow of any member of the police department who shall die, and recites that the term "widow," as used in this section, "shall be limited in its meaning to the surviving spouse of such member who shall have been married to him and living with him at the time of his death." Held that the widow of a deceased policeman, who was living apart from him at the time of his death, by reason of the fact that he had mistreated her and ordered her out of his home, was not entitled to receive the pension.
Argued May 10, 1940
Decided June 5, 1940.
ACTION for a declaratory judgment, determining which of two claimants to a pension, the plaintiff or the defendant Susan M. McPadden, if either, is legally entitled to certain pension payments, brought to the Superior Court in Fairfield County and tried to the court, O'Sullivan J.; judgment determining that neither claimant is entitled to the payments, from which the plaintiff appealed. No error.
After the denial of applications by the widow and mother of a policeman to the board of trustees of the policemen's relief fund of Bridgeport for allowances under 116, Special Act No. 296, approved May 16, 1935, 22 Special Laws, p. 170, providing for the administration of the fund, the widow instituted this action for a declaratory judgment to determine the rights of the parties.
The finding may be summarized as follows: Daniel F. McPadden was a member of the Bridgeport police department from June 1, 1915, to December 23, 1937, when he died while in active service. The plaintiff is his widow. In 1926, the deceased, then married to the plaintiff, mistreated her and ordered her out of his home. They never thereafter lived together although the plaintiff several times sought a reconciliation. In 1931, a divorce action, instituted by the deceased, was dismissed after trial. Upon the trial of the case the court concluded that neither the widow nor the mother were entitled to allowances under the act and the plaintiff widow appealed.
The trial court filed a memorandum of decision which is, in part, as follows:
One provision of Section 116 of the charter of the city of Bridgeport reads, in abridged form: "When any member (of the police department) shall die, the widow of such member shall, subject to the provisions hereinafter contained, receive, until her death or remarriage, a monthly sum, etc." Another provision recites: "The term `widow,' as used in this section, shall be limited in its meaning to the surviving spouse of such member who shall have been married to him and living with him at the time of his death."
The underscored words furnish the barrier which the plaintiff must clear if judgment is to be rendered in her favor. She attempts to do this by asking this court to add to the language defining a "widow" such appropriate wording as will permit the trustees to pay a pension to a widow who "if not living with the deceased, was separated from him with legal justification." If one's personal impulse were to be followed, there would be little hesitation in pursuing this suggestion because the predicament of the plaintiff is most appealing and merits considerable sympathy. However, a court is powerless to add to the wording of a statute which is clear and direct. It cannot seek out what it may conceive to be the equities of each particular case and ignore specific provisions of a law which clearly controls them. Blodgett v. New Britain Trust Co., 108 Conn. 715, 719 [ 145 A. 56]. Where the language is unambiguous the judiciary is helpless to intervene even to remedy a mistake. To attempt so to do would be an unwarranted exercise of legislative functions. Farmer v. Bieber-Goodman Corp., 118 Conn. 299, 303 [ 172 A. 95].
The language of the charter is clear and direct. The definition accorded to the word "widow" expressly places a limitation for the class of surviving spouses who may qualify as beneficiaries of the pension plan. It excludes all those who are not living with their husbands at the time of his death. To live with another means to dwell, to reside, to make one's abiding place or home with that other. The phrase may also mean to cohabit. Webster's International Dictionary.
I accept the definition found in Nelson's Case, 217 Mass. 467, 469 [105 N.E. 357], as most in accord with sound legal logic. "`With whom she lives' means living together as husband and wife in the ordinary acceptation and significance of these words in common understanding. They mean maintaining a home and living together in the same household, or actually cohabiting under conditions which would be regarded as constituting a family relation. There may be temporary absences and incidental interruptions arising out of changes in the house or town of residence, or out of travel for business or pleasure. The matrimonial abode may be a roof of their own, a hired tenement, a boarding house, a rented room or even a room in the house of a relative or friend, however humble or temporary it may be. But there must be a home and a life in it." And in Gallagher's Case, 219 Mass. 140 [ 106 N.E. 558], it was held that living together does not embrace those instances where a wife is justified in law in leaving her husband or where she is actually living apart from him, although this may be due to no fault of her own.
If the Legislature had intended by the language it used to include those widows who were separated from their husbands with cause, it could easily have added language to that effect as it did when enacting Section 5156 of the General Statutes, which is concerned with the statutory share of the survivor in the estate of the deceased spouse. That section, it will be recalled, provides that such survivor shall not be entitled to the statutory share who, without sufficient cause, has abandoned the other and continued that status to the time of the spouse's death.
The plaintiff does not fall within the definition of a widow as the Legislature expressed itself. She was, in fact, living apart from him, in a different house in another section of the city. There is no room for interpretation. Inclined though one may be to warp the statute to meet his sympathies and to obtain an objective of less harsh character, such considerations must bow before the statutory mandate. The General Assembly has spoken and the law must be enforced as it was enacted. Under the circumstances, with real regret, I conclude that the plaintiff is not entitled to receive the benefits of the pension.
Francis J. King and Isadore L. Kotler, with whom on the brief, was Alexander L. DeLaney, for the appellant (plaintiff).
Walter Werner, with whom was Harry Schwartz, and, on the brief, John V. Donnelly, for the appellees (defendants).
For the reasons stated in the memorandum of decision, quoted above, we find correct the conclusion reached, that the plaintiff was not "the surviving spouse of such member who shall have been married to him and living with him as his wife at the time of his death," within the meaning of the charter provision. As stated by the trial court, there is no room for construction when the wording of the statute is clear and direct.
The brief of the plaintiff is, in the main, concerned with the claimed inequitable result of this application of the statute. She points out that while she was living apart from her husband, it was through no fault of hers and argues that the Legislature could not have intended to deprive widows in her situation of the benefit of the pension. Similar arguments have been frequently made and have never prevailed where the wording of the statute is as plain and unambiguous as that here under consideration. State v. Nelson, 126 Conn. 412, 416, 11 A.2d 856. We are not concerned with the wisdom or unwisdom of legislation, Connelly v. Bridgeport, 104 Conn. 238, 249, 132 A. 690, nor with the recognition of equities which contravene such wording. Wilcox v. Bliss, 116 Conn. 329, 332, 164 A. 659; Blodgett v. New Britain Trust Co., 108 Conn. 715, 719, 145 A. 56. "We construe the Act as it is, and are not concerned in determining whether, if other provisions had been included, the Act would have been a better Act." State ex rel. Lewis v. Turney, 97 Conn. 496, 504, 117 A. 499.
The phrase "living with him" and similar wording has uniformly been interpreted as meaning actually residing with, making a home with. Nelson's Case, supra, 469; Gallagher's Case, supra; State ex rel. Livingston v. Minneapolis Fire Department Relief Association, 205 Minn. 204, 285 N.W. 479. In each of these cases the wife was living apart from her husband without fault on her part but relief was denied her because of the wording of the statute. In the only case cited by the plaintiff on this point, Reymond v. Louisiana Trust Savings Bank, 177 La. 409, 425, 148 So. 663, the question arose under a homestead statute and the husband was not dead but very much alive and apparently engaged in a conspiracy to defraud his wife and the court.