S. F. No. 7533. | Cal. | Jul 25, 1916
Lead Opinion
This is a proceeding in mandate by the surviving wife of Frederick W. French, deceased, who was at the time of his death a member of the police department of the city and county of San Francisco, against the board of trustees of the Police Relief and Pension Fund of said city and county and their secretary, to compel provision for and payment by said board of a monthly pension to plaintiff, on the theory that her husband was injured while in the performance *127 of his duty as a member of the police department, and died as a result of such injury within one year from the date thereof.
By the terms of the charter of San Francisco the board of police commissioners constitutes a board of trustees of the Police Relief and Pension Fund, from which they provide for the payment of pensions to members of the force retired by them on account of age or disability on account of bodily injury received in the performance of their duties. Provision is also made for a pension to the widow, children, and dependent parents of officers killed in the performance of their duty, section 4, chapter 10, article VIII, of the charter providing: "The Commissioners shall out of the Police Relief and Pension Fund, provide as follows for the family of any officer, member or employee of the Department who may be killed or injured while in the performance of his duty, and who shall have died within one year from the date of such injury; . . . First — should the decedent be married, his widow shall as long as she may remain unmarried be paid a monthly pension equal to one-half of the salary attached to the rank held by the decedent at the time of his death." The trustees of the pension fund possess the powers vested in the board of police commissioners to make rules and regulations, and are required to hold quarter-yearly meetings and keep a public record of their proceedings. Such board has the power conferred on every board or commission provided for in the charter, to administer oaths and affirmations, to issue subpoenas, and to take and hear testimony concerning any matter or thing pending before it. (Charter, art. XVI, sec. 24.) The charter apparently contains no other provision than those already referred to in any way material to the procedure in the matter of such a pension as the one here sought. There is no provision whatever as to any hearing or finding by the board.
The petition for a writ of mandamus in this proceeding alleged that on November 14, 1910, Officer French, while engaged in breaking a colt for the police department pursuant to orders to that effect, was thrown from the colt and injured to such an extent that he died on January 10, 1911, as the result of the injury. It further alleged that plaintiff, on or about October 1, 1911, filed her verified petition with the board of trustees of said pension fund praying that she be *128 awarded the pension to which she would be entitled under such circumstances, and that on October 18, 1911, her application was denied by said board. She further alleged: "That at said hearing of said application and petition of the plaintiff for said pension, the plaintiff introduced evidence fully sustaining each and every allegation therein and herein set forth, without any material evidence of any kind or character being offered in contradiction or opposition to said evidence." She further alleged that on July 25, 1912, she filed a petition for a rehearing with said board, and that the same was denied on October 7, 1912.
By its answer, the board denied that the officer was injured while in the performance of any duty as a member of the department, and affirmatively substantially alleged that he was on duty until December 16, 1910, and perfectly sound in mind and body until that date, when he reported himself ill on account of "la grippe," and that he died on January 10, 1911, solely from the effects of "la grippe" and pneumonia, which were in no way contributed to or superinduced by any injury received by him while in the performance of his duty. The answer contained also an explicit denial of the allegations as to the effect of the evidence given on the hearing, which we have hereinbefore quoted, and affirmatively alleged that the evidence introduced conclusively established in the minds of the members of the board that the death was due solely and directly to "la grippe" and pneumonia, and that no injury received by French in the performance of his duty was a contributing cause of his death.
The findings of the trial court, so far as they went, were in accord with the allegations of the petition, but the only finding on the issue as to the showing made before the board of trustees was as follows: "That at said hearing of said application and petition of the plaintiff for said pension the plaintiff introduced testimony to support all of the allegations therein set forth, and that the said board of trustees of the Police Relief and Pension Fund then and there on said last mentioned date denied said application of said plaintiff for said pension." There was no finding whatever upon the allegation in the petition to the effect that there was no substantial conflict on material questions of fact in the evidence given on the hearing before the board, nor was there any finding on matters affirmatively alleged in the answer. *129
Upon these findings judgment was given for plaintiff, directing the issuance of a peremptory writ of mandate. We have before us an appeal from this judgment and from the order denying defendant's motion for a new trial, the same having been transferred to this court after decision by the district court of appeal for the first appellate district. The record on appeal does not set forth any of the evidence given upon the trial in the court below.
We are unable to see in the charter provisions bearing on the matter anything which can fairly be held to make the board in relation to such an application as this a tribunal possessing judicial powers whose decision on questions of fact is at all binding. The charter prescribes the contingencies on which such a pension shall be granted by the board. It says substantially that if a member of the department is killed or injured while in the performance of his duty, and dies within one year from the date of such injury, the board "shall out of the Police Relief and Pension Fund," provide for the payment to his widow, as long as she remains unmarried, of a monthly pension equal to one-half of the salary attached to the rank held by the decedent at the time of his death. These facts existing, the plain duty to make the provision exists. It has been held under very similar circumstances that the widow has a vested right from the date of death of her husband (Kavanagh v. Board ofPolice Pension Fund Commrs.,
In view of what we have said on the matter already discussed, there is no force in any of the points made for reversal. *131 The petition for a writ of mandate sufficiently stated a cause of action, and this altogether regardless of the allegation that the evidence adduced by petitioner on the hearing before the board was not contradicted by any other evidence. That allegation was superfluous and immaterial, and no finding thereon was essential. Therefore a failure to find thereon cannot be cause for reversal. The findings in her favor upon the other allegations of her petition are full and complete. As to matters affirmatively alleged by defendants in their answer by way of defense as to which no findings were made, the evidence not being before us, it must be presumed that no evidence was introduced tending to support such allegations. The trial court did not err in receiving evidence as to the facts essential to plaintiff's right to a pension, entirely regardless of whether such evidence so received was introduced on the hearing before the board. Even if this were not so, defendants would not be in a position to insist upon a reversal on account thereof, for the record does not show what any of such evidence was, and consequently it could not be held that the action of the court was in fact prejudicial.
The judgment and order denying a new trial are affirmed.
Sloss, J., Lorigan, J., Henshaw, J., Lawlor, J., and Melvin, J., concurred.
Rehearing denied.
In denying a rehearing the court in Bank rendered the following opinion on August 24, 1916:
Addendum
In denying the application for a rehearing, we deem it proper to say, in view of certain expressions therein as to the supposed or possible far-reaching scope of the opinion, that we were considering the status of the pension board solely with relation to pensions in the event of death of the officer, and what is said is not to be taken as expressing any opinion as to other matters in which the board is required or empowered to act. *132