*1 permit rule, a ease to remain should on the we docket. How ever, pointed Hauber, out Fischer v. supra, 793, 257 Iowa 918, 919, if do require 134 N.W.2d we not a strict adher rule, gradual whittling away finally ence to the will result in where no situation there will be rule left. conclusion, then, appellees is our did not show relaxing substantial basis for the rule as to them and that this cause should have been eliminated from the docket the com- January mencement 1964 term, the court erred sustaining special not appearance, defendant’s and that beyond permitted actual dismissal was far the six months filing application an for reinstatement and should have been deciding, denied. In so not holding we are to be understood as grounds alleged only sufficient, reinstatement were not application timely. that the was not —Reversed. J., JJ., C. Moore
Garfield, con- Snell, Rawlings, cur.
Mason and Becker, JJ., dissent. J., part. takes no
Stuart, J., sitting.
Thornton, R. Butler, Dale v. Pension Board of Police appellee,
Department, appellants. No. *2 13, December McKinney, Renda, F.
Philip Riley, Anthony T. John T. Kelly, David McAllister, Gary Jr., D. H. Swanson Robert appellants. Moines, all of Des for Moines, appellee. of Coggeshall,
H. M. Des sought police matron, Appellee, a retired Snell, J. of benefits of denial retirement certiorari Pension Board. was appellee herein, Butler,
R. Dale police a matron with application for retirement time of She had served police department City of Des Moines. of the twenty-five department years, as a member chapter 411, provided under Code entitled the benefits Systems “Retirement for Policemen and Iowa, Firemen.” System Board of Trustees of the Police Retirement duly of Des Moines is a constituted and the members provisions chapter thereof under the of Iowa. For 411, Code convenience we will refer to defendants as the Pension Board. 23,1965, plaintiff June filed Pension Board her with the application for retirement under the statutes. She asked for July sought retirement effective 1965. The effective date birthday. type pension sought was her 65th The acci- salary pursuant disability, i.e., dental two-thirds to sections 411.6(5) 411.6(6), Code Iowa. application plaintiff stating
With her submitted letter hypertensive that she had a that she at- cardiovascular disease daily tributed to police duty. strain and tension of She also submitted statement from the showing chief of her sal- *3 ary past years. schedule for the five application supported by
Plaintiff’s letter dated June 25,1965, plaintiff’s from Dr. Paul From, physician, addressed to police. the chief of Doctor findings From detailed his from a two-day plaintiff’s evaluation of condition. He stated his im- pression “Hypertensive as: Cardio-Vascular Disease with blood pressure 200/100, non-specific changes in ECG, essentially nor- mal heart size, compensated.” sinus rhythm, He then set out her current prognosis medical treatment. His was: “I believe process her disease will permanent, require be and will constant medical in attention the future.”
Section 411.5(9), provides Code of Iowa, for a medical to aid the Pension Board. Dr. Floyd M. Burgeson, a member of the medical board, letter to the Pension Board July 9, dated 1965, reported that he had plaintiff. examined physically He found her incapacitated for performance further duty incapacity that such an likely is permanent. to be He said further:
“* # * disability that said ( ) (X) is is not the natural proximate an injury result of or disease incurred or aggravated by performance the actual duty at some definite I retired from active place recommend she he tíme disabilities, any, if are as duty and that her upon follows:
“Hypertensive disease. Osteoarthritis with cardiovascular multiple joint involvement.” Burge- noted that Doctor quotation
From this it should be to plaintiff’s condition attempt son did not to attribute particular incident. board, ex- Kelsey, medical
Dr. E. a member of the James findings reported July his 14, 1965. He amined on report: significant part of quote the his detail. We “Impression: mentally I feel Mrs. Butler is or do not duty. physically incapacitated performance for further of her certainly until the date to me that she could work seems disease, hypertensive retirement. She has cardiovascular type of probably is is cause of which not known but it I recom- hypertension respond weight reduction. that will the 24th from on active mend that Mrs. Butler retired years age. I feel that do not July, becomes when she this should be a retirement.” board, Kelly, Jr., the medical
Dr. Dennis H. a member of “that she July 13, agreed He examined n general certainly reason of her entitled retire predominant rea- find did not heart disease the condition.” He son for retirement. From further advised defend- August 19, 1965, Doctor as
ant-board follows: my professional since care “R. Dale Butler under been having high blood diagnosed first October 1958. She was *4 January 24, time, she has taken pressure 1963. Since that on symptoms developed pressure, and has high medication for blood secondary pressure and high blood signs of disease to and heart coronary artery heart disease. policewoman perform duties as a be- is unable to her
“She medical illnesses. cause her 17, 1965. June August
“She was last examined so that complete 22, 1965, physical examination June she had an resubstantiated, up-to-date diagnoses all were rating could be determined. Coronary
“My diagnosis Hypertensive is that of Ar- tery high pressure, with blood abnormal electro- Heart Disease angina constantly cardiogram, pectoris. to obligated She my opinion, and in treat this condition with medication is unable diagnosis.” to work because of this secretary arrange The for fur- the board was directed plaintiff specialist. ther examination of a heart request At the was examined defendant-board August 27, 1965, Smith, specialist, Dr. Herman J. a heart of the Internal Medical Clinic. plaintiff’s reports
Doctor Smith history, reviewed medical previous plaintiff. reported and examined examinations He in detail. Under American Medical he Association evalu- tables plaintiff’s disability” ated man “whole attributable to diseases of the system percent. cardiovascular meeting
At a of the August 17, Pension Board on person. testified in service, She reviewed her her duties and her part disabilities. The most strenuous of her work was in handling plain- drunken women and mental subjecting cases tiff jujitsu violence. She has been taught department and had a gun, but because of condition was attempt physical loath to exertion. municipal
The setting code out the nature work, de- sirable knowledge, abilities and skills aof in- matron was troduced.
At a meeting of the board on 27, 1965, plaintiff’s October application was denied.
Upon plaintiff’s denial of application the district court granted certiorari and after hearing sustained the writ and plaintiff’s directed the provided allowance of in sub- sections 5 and as amended 411.6, of section Code of Iowa. De- appealed. fendant has
I. Relative to municipal provides, matrons the code among many things, other as follows:
“Nature of Work. *5 and supervising prisoners female “This routine work is city jail. maintaining in the quarters the women’s order and responsible the employee “An in class for welfare this in the care custody prisoners and internees of all female safe ** * police department. the Examples “Illustrative or Work. prisoners.
“Books and female searches city main- jail, jailer quarters in “Acts as the women’s pris- orderly among the female taining discipline and conduct * * * oners. show-up, “Prepares them to prisoners female for and escorts ** * questioning, arraignment, and trial. fingerprinting and and Skills. Knowledges, “Desirable Abilities controlling in knowledge of methods used “Working ability to caring police custody, or persons held under * * techniques. quickly apply such learn methods from physical “Good condition and health with freedom physical by physical a examination.” serious defects as indicated plaintiff had some The evidence was that uneontroverted employment developed during it her heart disease that department. not a of evidence police There scintilla physical qualify was such as to her for work that condition required by municipal police things or do the a matron as code. specialist Smith, examining
Doctor
the heart
percent
disability.” No
found 51
“whole man
defendant-board,
percent disability is in
suggested
that a woman with
one
resentful female
drunken,
to handle
disturbed or
condition
prisoners.
“good
that
condi-
No one claims
she was
physical defects
with freedom from serious
and health
tion
* *
municipal
as
code.
outlined
kept
in mind
matron.
should
employed
sedentary position.
in a calm or
She was not
a police
she
matron it was
To
was disabled
show
activity.
from all
A heart
necessary that she be disabled
City
officer.
of Iowa
may disable
v.
condition
41,
Doctor did not feel performance duty. duty. say for further of didHe not what July already stopped His examination was on 14. Plaintiff had working. plaintiff The doctor recommended that retired be duty July only days from 10 active That was after ex- Kelsey thought plaintiff amination. retired Doctor Should be in sympathy disability was not with a For the but retirement. problem answer to that we must look to the statute. The uncontroverted evidence showed suffered longer possessed from heart disease. She no qualifications the police by for municipal matron outlined code. She dis- duty police for disability developed abled matron. Her dur- ing of years with department. service re- She everyone tired thought she should. In this
II. case with uneontroverted as distin facts guished opinions legislature provided from the" the answer. 411.6(5), Iowa, provides: Section Code of “Accidental Upon application benefit. of a mem- ber in * * # service or of the chief departments of the or fire w]10 totally memker has become permanently in- capacitated duty for as the proximate natural and result of an injury or disease aggravated by incurred or per- the actual ** * formance of place some definite time and shall be * * * by retired board of trustees, provided, that the medical certify shall mentally physically such is member or incapacitated performance for further duty, that such inca- pacity likely permanent is to be and that such member should * * * be retired. **
“Disease under this section shall mean heart disease presumed and shall be to have been contracted while on active ** duty as a result strain light
In the of this statute there was a service con disability. nected It was necessary pinpoint any particular event as the cause of her condition.
III. This case involves certiorari and not appeal. Rule 306, Rules of Procedure, provides: Civil may
“When writ issue. A writ of certiorari only shall be granted specifically when authorized statute; or where an functions, officer, exercising judicial or tribunal, board inferior or proper jurisdiction its, or exceeded his alleged to have illegally.” acted otherwise privilege nor
In it is neither the function certiorari an inferior pass upon the court to the wisdom or soundness re legality may jurisdiction tribunal’s but discretion viewed. statutory provision
In no at bar there was case and order of appeal from or determination contrary or support if defendant-board, the order is without but may to the statute it be reviewed certiorari. Commission, Iowa City
In v. Civil Service Sioux 1254, 1258, we said: N.W.2d *7 support
“However, is no evidence to where there substantial law, the upon of findings which are based its conclusions the illegally, making determination, acts tribunal, its inferior meaning (Citations) within the of R. C. P. 306.” does in the case record In the ease at cited the bar “Hence, it acted support the of the Pension Board. decision by illegally in and the same was reviewable making the decision certiorari.” “conclusively established
The trial said that it court disability bene- qualified that accidental the had the deny injustice fits, and that it and manifest would a clear We agree. her such benefits.”
The case is—Affirmed. JJ., con- J., and C. Larson, Becker,
Garfield, Moore cur.
Rawlings Mason, JJ., dissent. part. no J., takes
Stuart, sitting. J., not
Thornton, respectfully dissent. J. I Rawlings, municipal pension The board in certiorari. stands This case pension. The trial court reversed. disability a petitioner denied 1036 repeatedly presents only question held certiorari a
We have
petitioner
of law and does not entitle the
to a
of the evi-
review
by
reviewing
City White,
dence
court.
v.
253
Iowa
41,
49,
266,
Dickey
48,
Iowa
111
Civil
N.W.2d
v.
Service
Commission,
1135, 1139, 1140,
Iowa
In fact the task of trial court and the court this findings they is not to if of fact are competent sustained and substantial evidence. Courts only presented should examine the evidence to determine wheth- competent er there support substantial evidence to findings by the lower tribunal. Wood v. State Iowa Commerce Commission, 253 797, 801, 802, 710, Iowa and Circle N.W.2d Exp. Co. v. Iowa Commission, State Commerce 249 Iowa 653, 654, 86 N.W.2d
Significantly Kelsey Dr. James reported E. to the board part as follows:
“Mrs. Butler stated that she would retire on 24th July, stopped working but she July, on the 5th of 1965 be- cause get she wants to retirement. She stated * * this would add to her Impression: retirement income. I do not feel that mentally Mrs. Butler is physically incapaci- or tated performance for further duty. to me seems certainly she could work until the date of her retirement. She *8 hypertensive disease, cardiovascular cause which is not known probably but it is type of hypertension that will respond weight reduction. I recommend Mrs. Butler be retired from day active July, the 24th when she be- years comes 65 age. I not feel do that this should be a disabil- ity retirement.” Also, Dr. Kelly, Jr., petitioner Dennis H. examined and re- “* *
ported to the board: is certainly she entitled to retire general reason of her I condition. do not, however, find that heart predominant disease is the reason for her retire- ment.” “In the part held follows: the trial court evidence,and re- finds that the expressly the Court
case at bar Plain- conclusively that the established the Board ports before and that disability benefits, accidental qualified for the tiff had her such injustiee-to deny bene- and manifest it would clear fits.” than a find- nothing more less this is nor the record
Under judg- own of its and a substitution the trial court ing of fact in accord with This is not tribunal. for that of the lower ment holdings. prior our compe- there is dispute and case is in in this
The evidence supporting the decision evidence substantial tent board. the trial remand with instructions
I reverse would to affirm. court joins in dissent. this J.,
Mason, appellant. DeWitt, v. appellee, Homer DeWitt, Walter No.