*1 July 28, In Bank. A. No. 18221. [L. 1942.] ELETHA CITY AN DILLARD, Appellant, OF LOS (a Municipal Corporation) al., et Respondents.
GELES *2 George Cryer & Alston Jones Cryer Jones, E. and R. Appellant. City Attorney, and
Ray Chesebro, Robert J. Stahl L. and Deputies City Attorney, Respondents. Olstyn, Edward J. deny- judgment CARTER, J. appeal This is from a ing compel respon- petition a for a writ of mandate to city pension dent and board of commissioners to to petitioner pension and her child on rolls which she by city entitled under the claims she is laws undisputed. reason of her husband’s death. facts regularly husband, deceased, a Petitioner’s now was Angeles. city officer On employed police of Los decedent, night January 22, 1940, patrol- radio as a car regular p.6 man, m. to a. m. was suspect At 10:15 m. a who was taken into cus- p. about tody patrolling, and a fellow officer were while decedent doing and in struck decedent on attempted escape to so chest; a struggle face over considerable and extended a and to prisoner time. The taken period of was subdued hospital given and medical care. where he decedent were They police to the central station proceeded where then perspir- prisoner pale there was left. While decedent was and being ing weak. His condition observed appeared and go sergeant, he was told home. stated desk he drive own car home assis- he believed could patrolman fellow He was taken tance. parked. 12:10
lot car He was left there about where his was a. m. his At about 12:40 car collided with an automobile a. m. forty about feet south of an intersec- parked curb hearing ran the crash the scene of col- person A tion. slumped steering decedent wheel lision found over and shortly alive. He died thereafter. unconscious but still Angeles surgeon Los found autopsy that decedent body and and was about limbs his ribs were bruised ruptured. fatty The heart was fractured and his heart coronary artery sclerotic, open- descending was its being analysis cent. A ing per reduced chemical ethanol; of 25 cent per blood showed the presence amount ethanol indicated intoxication. He found the death crushing rup- been “a the chest and to have being heart, contributory ture of to that internal hem- orrhage.” In “had a opinion the decedent chronic heart years developing condition which had been over subject to render was such as attack any time; that the amount of alcohol was found sufficient intoxication, way indicate there no was to deter- whether or not accident mine could have liquor condition.” Dr. Webb his affi- davit used motion for new trial stated subject heart condition was that he such to a heart attack any time and under the facts as above stated the suffering an attack he such was at the cen- tral station which “was the direct natural result fight had prisoner car, had the radio *3 in view of condition the autopsy; heart revealed seriously the deceased was so ill at time in pre- such carious condition that he should never been have allowed attempt go home alone or to automobile; drive an he was liable any to lose consciousness at moment and the in collision which might resulted his death what well expected from driver in his condition Anthony’s time.” report. Dr. affidavit was of similar Decedent gave was sober and no indication whatsoever having of any beverage intoxicating consumed up to the time parking he was at the lot. presence of in alcohol blood after his the collision that it indicated must have been thirty consumed in minutes time he was left at the lot until collision. With reference thereto Anthony Dr. stated in his in the opinion affidavit: “that of taking liquor affiant of under the circumstances was the man in unnatural act of a the exhausted and weakened time, of in an condition said deceased effort to stim- home; ulate himself for the drive to was the act of waning strength a stricken and man to bolster his further effort.” city provision question charter reads: “Whenever Department
any member of the Fire Police shall die as 602 any injury of
a result of performance duty, discharge or from sickness such duty monthly . . . then annual pension paid shall be widow, installments (Los to his child ...” children. Angeles City Charter, 183.) § liberally
Pension laws should be construed thereby applied policy end that estab the beneficent recognition. (Casserly proper City lished accorded v. Oakland, (2d) 425]; 215 P. Cal. 603 Klench v. [12 App. Fund 79 171 Pac. Commrs., Board Pension Cal. [249 46]; ; 176 Aitken Cook, O’Dea v. Cal. 659 Pac. v. [169 366] Roche, App. 464].) 48 753 That should Cal. Pac. rule [192 kept in appeal. mind determination considering question point
Before the main should also be observed that under circumstances heart condition involved the fact that decedent’s chronic which suffering contributing from which was cause ultimately to a right pen death, led to his not bar the does occurring performance sion where events while death. attack which led to his regardless is true whether or not chronic condition duty. The fact originated in the while previous police that a had at officer the time right dependents’ affliction defeat itself by aggra if precipitated his death vating (Buckley Roche, Cal. heart condition. System, (2d) 929]; City E. P. Peters v. Sacramento [4 Naughton v. Retire App. (2d) (2d) 179]; 27 Cal. P. [80 (2d) (2d) F., App. ment Board S. Cal. foregoing the evi 714].) of facts As seen from the recital altercation dece dence contradiction shows without custody the blows there prisoner dent had with the in his a heart attack received caused- decedent to have there suffering when the central he was station after. case, that the to the
Turning main contention *4 dispute that the case comes establishes evidence charter, is, died the that that decedent the terms of during injury performance an received the as a result of undisputed leads duty, that evidence it clear died as the conclusion, is, that that the deceased only one during performance injury received an result of strug- was was received while decedent injury The duty. gling a prisoner endeavoring retain in cus- tody. he That he was in the when that cannot questioned. received death true equally resulted from that clear. While it is that he the immediate cause his death was collision, that the automobile collision was result His the heart brought attack. station, such, condition was central verge that he was on the death attack brought injury. in no to operate condition was permitted should not so. automobile and to do The that medical evidence establishes the automobile acci- dent resulted from either the heart attack or the decedent argue having beverage. Respondents consumed alcoholic that possible are two there inferences deducible from the is, evidence, that that the accident automobile resulted from the heart attack or that it was the intoxication decedent, and in the latter no pension event is allowable. They point testimony to the medical that could not whether the ascertained automobile accident was caused intoxication or They the heart attack. assert no pension may be allowed when death follows an by the becoming of the officer, misconduct and that Assuming, deciding, intoxicated is such misconduct. but that intoxication is right misconduct which will defeat the pension, to a thereby. conclusion is not affected evi- dence shows without contradiction that consumption the alcohol necessarily decedent must have occurred during thirty over transpiring minutes parking time he was left at the lot his associate to the time of the automobile accident. There dispute is no up to time he left at was lot he was sober intoxicating consumed any beverage. had not His con- beverage sumption that time was the natural act, by Dr. expressed Anthony, “of a stricken and man waning strength bolster his further effort.” There- fore, it follows which caused the heart attack consumption beverage also caused the which resulted Thus, condition of intoxication. immaterial whether the automobile accident which immediate cause of death was the of intoxication result attack. former result the latter which was *5 injury by duty. received the impetus, is injury,
It all to the initial traceable which brought on the attack. heart The situation is dissimilar not to the employee case of an who suffers the course employment to and takes what believes medicine be temporarily, relieve his condition turns but medicine out to abe substance deleterious and causes serious may or death. Such or occurred death be said or out arisen possibility that accident occurred automobile as negligence the result of rather than the pre- by attack or intoxication is removed from the case sumption (Code negligent. of Civ. Proc., 1963(4).) other actor in the automo- There was no § parked bile collision as decedent collided with a car inasmuch at the curb.
Analogous presented to the case those cases employee that an is the rule is stated entitled compensation compensation under the workmen’s laws aggravated injury new or which results the medical injury, surgical treatment of an industrial whether carrier, employer, doctor his insurance was furnished employee. (Fitzpatrick Fidelity & was selected (2d) (2d) 276]; Sarber v. Casualty Co., Cal. 434; (2d) 39 A. L. R. Co., F. cases collected Ins. Aetna Life 1108.) intervening phy of a 1276; L. If the act 127 A. employee causing a sician new selected causation, certainly broken is not the chain of break from an person, where a stricken endeavoring reach a is killed when employment, Fitzpatrick In case safety in his automobile. place of approval page 234': quoted is the Sarber case “ weight authority employer great . . under ‘. consequences following an acci- legitimate all liable judgment of the error of including dent, unskilfulness employee entitled required, and the as physician furnished compensation for extent schedule under the to recover accident, result on the ultimate disability based of aggravated disability has been that the regardless the fact intervening negligence or carelessness increased reasonableness of physician.’ selected employer’s added.) (Emphasis In case patent.” principle comprehensive the Work- as is at least act bar the Compensation Act, is, mens’ result, ultimate death, conse- sustained, is the natural quence injury. of that
In recovery foregoing, addition to the petitioner’s predicated upon the occurrence the automobile collision which immediate cause of the death of de *6 cedent, and that result should reached if it assumed even be provision that under the charter must have arisen out of and occurred in un employment. the course of The disputed facts show series circumstances. compelling of Decedent.became ill heart attack as direct result struggle of the which occurred in the course of and while he employ of to that performing one the duties incident taking custody ment, person into of a vio and retention lating the illness, law. As direct result reg expiration was forced to return home of before his duty; ular of the automobile collision also occurred expiration before of that time. was directed his superior that return to home reason of illness. It his transportation was known that his means of his home going necessarily his car. While to his home he would en counter the operating hazards incident motor vehicle public When an or in employee streets. becomes ill capacitated as the result of an occurs in injury which or. may his employment, justly arises out course of employment that he is said still course of his en route, employer’s at his direction, place employ from his of a place safety may ment to or of where he care and receive regular for the treatment illness hours An injury of labor. en route is certainly while so employment, initially an incident of re employment way in the ceived caused him to be on the attention. mere fact used receive that he his automo refuge seeking consequence; bile in of no that was done employer of implied with the assent inasmuch as lat go home, knowing ter him to use directed would means that transportation. may fairly of It en be said while so of he is on the business both the master route and his own. Principles applicable compensation to workmen’s cases necessary where to show that of arose out employment, support occurred the course of the foregoing. engaged An work employee outside employment step seeking out the course while of of shel- 606 (Western
ter from Pac. v. a storm. R. R. Co. Industrial Acc. Com., 754].) 413 Pac. Cal. ease falls [224 com employee necessary the rale those of to his acts fort, convenience, safety or are inci welfare while work employment, dental to his an sustained arises in the such acts out of occurs (Whiting-Mead v. course of Com. Co. Indus Pac. 5 A. L. R. Com., trial Acc. Cal. [173 1518]; Angeles Com., Industrial County Acc. Los 362].) illustration, Pac. For in the ease App. Cal. Angeles Com., supra, Acc. an County Los v. Industrial employee going place from his injury received while get station to water for a fellow employment to service employee fainted, was to have arisen out of who had held principle of employment. and occurred course employee where the receives apply well treatment employment compels to seek course refuge em away place and care or a seeking treatment, care In the act of ployment. either case employment and arises refuge incidental to the out it. coming rule is not an obstacle going The so-called exceptions, under the many It has conclusion. *7 application. The em- involved, no has circumstances day’s completed. work is going home after ployee reason of Bather he is compelled treat- to seek incurred away ment, refuge care a clear of dis- foregoing there was abuse
For the reasons refusing in peti- board part cretion court pension, superior and the for application tioner’s evidence, undisputed law, upon matter of should aas for her. prayed granted writ of mandate is reversed. judgment Traynor, J., con Shenk, J., Curtis, J., and J., Gibson, C. curred.
Respondents’ petition rehearing August for a was denied opinion rendered: 24, 1942, following thereupon and the By petition rehearing in THE COURT. this cause determining respondents contend that “this court has erred appeal upon strength this ex- opinions of statements and pressed affidavits filed support of a motion new trial,” contrary to the rule announced in Lucci v. this court Company, Credit & United Collection 220 Cal. 492 (2d) 369], contention rea- This cannot be sustained for the son that transcript last page following stipu- of the appears: lation hereby stipulate “We foregoing (pages inclusive) to 77, full, true and transcript fair papers, papers, and all of used considered on the hear- ing trial (in the within cause addition to the record contained in transcript judgment the clerk’s roll here- in).” affidavits opinion referred this court are embraced the pages contained record referred into the above-mentioned stipulation, and the contained facts in such affidavits parties were discussed in the briefs of both any suggestion that such facts could not be considered court they because were contained affidavits on mo- tion for a new trial.
Other in respondents’ petition contentions made re- for a hearing disposed of in opinion of this court.
Respondents’ petition for rehearing is denied.
Edmonds, J., rehearing. voted for a July F. No. In Bank. 16803.
[S. 1942.] PEARL SLOAN, Petitioner, F. MICHAEL J. DON
OGHUE, Registrar Voters, etc., Respondent.