State Ex Rel. Tilkens v. Board of Trustees of Firemen's Pension Fund

34 N.W.2d 248 | Wis. | 1948

Proceedings begun in January, 1948, by Gerald Tilkens to compel the Board of Trustees of the Firemen's Pension Fund of the city of Green Bay to retire him and pay him a pension. An alternative writ of mandamus was issued on January 27, 1948. An order of April 5, 1948, quashed the alternative writ of mandamus. Petitioner appeals.

Petitioner, Gerald Tilkens, was employed by the city of Green Bay as a fireman since October, 1928, a period of about eighteen years. The city of Green Bay, a city of the second class, has a firemen's pension fund as provided in sec. 62.13 (10), Stats., to which fund Tilkens contributed. He is now suffering from arthritis and congenital anomalies. An orthopedic specialist advised him not to do any work requiring bending or lifting. His duties as a fireman evidently involved heavy lifting and straining. Claiming he could no longer do this type of work Tilkens applied to the Board of Trustees of the Firemen's Pension Fund to be retired and allowed a pension under sec. 62.13 (10) (e), which provides:

"The provisions of paragraphs (b) to (d) of subsection (9) shall apply to the firemen's pension fund, . . . except, if any member of the department while contributing to the fund, shall sustain injury while not on duty, and be found upon examination by a medical officer . . . to be permanently disabled, physically or mentally by reason thereof, so as to render necessary his retirement from service in such department, the board shall retire him and order payment to him monthly of a sum equal to ten per cent of his monthly compensation at the date of his retirement if such disability occurs at any time after the completion of six years of service, . . . excepting that no pension shall be paid where the disability or disease herein results from gross negligence or wilful misconduct."

Par. (c) of sub. (9) which is incorporated into sub. (10) deals with pensions for disability.

"If any member of the department, while contributing to the fund, shall, within the hours when he was required to be on active duty, and while engaged in the performance of duty, . . . be injured, or contract a disease due to his occupation, . . . the board shall retire him . . . ."

On October 8, 1946, the board held a hearing at which Tilkens and the orthopedic specialist testified. The board thereafter ordered petitioner examined by Dr. E.R. Killeen who, after examining Tilkens, reported to the board:

"The X-ray findings do not represent changes due to trauma, but are rather congenital anomalies and arthritis, which of course are permanent conditions. In my opinion they are sufficient to cause a certain degree of low back instability and pain, but I do not think they should cause total disability. I believe this condition would safely permit activity which does not involve straining, heavy lifting, or marked stooping."

September 11, 1947, the board denied Tilkens' application for a pension. He then petitioned the circuit court for a writ of mandamus to compel the board to grant him that relief. On January 27, 1948, an alternative writ was issued which was quashed by order of April 5, 1948, because it failed to show an "injury" as required by the statute and also because Dr. Killeen's report did not show that Tilkens was permanently disabled so as to render his retirement from the department necessary. The decision in this case depends on the construction to be given sec. 62.13 (10) (e), Stats., particularly with reference to the phrase therein reading "sustain injury while not on duty."

In determining the meaning of any single phrase of a statute it is necessary to look at it in the light of the whole of the statute. Sec. 62.13 (10) (e), Stats., provides that a member of the fire department shall be entitled to a pension, (1) if he "while engaged in the performance of duty . . . be injured, or contract a disease due to his occupation," or (2) if he "sustaininjury while not on duty." If, as appellant contends, the legislature intended the word "injury" to include both results caused by disease and those caused by external violence or accident, then there would have been no need to include in the statute the phrase "disease due to his occupation."

The words "injury" and "disease" are used together in such a manner that we conclude, as did the learned trial judge, that "injury" is to be understood in the sense of damage caused by some external violence as distinguished from damage caused by disease. This is the meaning commonly attributed to the phrase "sustain injury," sec. 370.01 (1), Stats.

However, appellant in claiming that "sustain injury while not on duty" as used in sec. 62.13 (10) (e), Stats., is broad enough to include disability resulting from a condition due to congenital anomalies and arthritis, cites another part of that section for support. He points out that the provision for a pension if the fireman sustains injury while not on duty concludes with the words "excepting that no pension shall be paid where the disability or disease herein results from gross negligence or wilful misconduct." It may be that this use of the word "disease" makes the legislation ambiguous. If so the court may take judicial notice of the legislative history to determine the intent. Polzin v. Wachtl (1932), 209 Wis. 289,245 N.W. 182; 2 Horack's Sutherland, Statutory Construction (3d ed.), p. 485, sec. 5003; Richbourg Motor Co. v.United States, 281 U.S. 528, 50 Sup. Ct. 385, 74 L. Ed. 1016. And the conclusion we reach is not without support in the legislative history.

Sec. 62.13 (10) (e), Stats., was last amended by ch. 290, Laws of 1943. The bill, No. 119, S., as originally introduced and referred to the committee on state and local government read "shall sustain injury while not on duty or contract a disease not due to his occupation." By amendment No. 1, S., to No. 119, S., the phrase "or contract a disease not due to his occupation" was stricken out. Evidently the word "disease" inadvertently remained at the end of the amended section although it had been used originally in connection with the deleted phrase "or contract a disease not due to his occupation." The legislative intent clearly seems to have been to exclude just such a situation as appellant is here contending is within the statute. It is well within the competency of the legislature to provide for a pension for injury sustained while not on duty and not for disease not due to the occupation. Because it was providing for one type of disability does not mean that it had to provide for all. There is nothing in the phrasing to warrant interpreting it as a plan for health insurance.

Appellant also relies on the case of State ex rel. McManusv. Trustees (1909), 138 Wis. 133, 119 N.W. 806, as authority for his interpretation of the meaning of "sustain injury." There this court held that pneumonia contracted because of exposure while on duty was an injury within the wording of a statute which allowed a policeman's pension to the widow if her husband's death was caused by injury during the course of duty.

However, as respondent points out, there is a difference in the physical facts connected with the policeman's pneumonia in the McManus Case and petitioner's condition. The pneumonia was caused by exposure to the cold, by external violence. The condition of petitioner due to arthritis and congenital anomalies in his back is, according to the doctor's report, a "permanent condition," and not related to or caused by his employment.

By the Court. — Order affirmed.