315 P.2d 589 (Or. 1957), Mundt v. Peterson

Citation:315 P.2d 589, 211 Or. 293
Opinion Judge:ROSSMAN, J.
Party Name:Lotta A. MUNDT, Respondent, v. Fred L. PETERSON, Will Gibson, William J. Powers, Edward Grenfell, James W. Purcell, Jr., Peter C. Leinweber, Ralph O. Miller, Cecil F. Roth, Glenn L. Harms, George W. Fox, and John R. Pittenger, members of the Board of Trustees of The Fire and Police Disability and Retirement Fund, Appellants.
Attorney:George D. Leonard, Deputy City Attorney, Portland, argued the cause for appellants. With him on the brief were Alexander G. Brown, City Attorney, and David H. Breuer, Portland. Harvey J. Osborn, Portland, argued the cause for respondent. With him on the brief was Gregory L. Bounds, Portland.
Case Date:September 18, 1957
Court:Supreme Court of Oregon
 
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Page 589

315 P.2d 589 (Or. 1957)

211 Or. 293

Lotta A. MUNDT, Respondent,

v.

Fred L. PETERSON, Will Gibson, William J. Powers, Edward

Grenfell, James W. Purcell, Jr., Peter C. Leinweber, Ralph

O. Miller, Cecil F. Roth, Glenn L. Harms, George W. Fox, and

John R. Pittenger, members of the Board of Trustees of The

Fire and Police Disability and Retirement Fund, Appellants.

Supreme Court of Oregon, En Banc

September 18, 1957

       Argued and Submitted May 23, 1957.

       [211 Or. 294] George D. Leonard, Deputy City Atty., Portland, argued the cause for appellants. With him on the brief were Alexander G. Brown, City Atty., and David H. Breuer, Portland.

Page 590

       Harvey J. Osborn, Portland, argued the cause for respondent. With him on the brief was Gregory L. Bounds, Portland.

       ROSSMAN, Justice.

       This is an appeal by the defendants from a judgment order which the circuit court entered in favor of the plaintiff. The latter is the widow of Gustav H. Mundt, deceased, who at the time of his death was a member of the Fire Department of the City of Portland. [211 Or. 295] The defendants constitute the board of trustees of the Fire and Police Disability and Retirement Fund of Portland, which is created by chapter V of that city's charter, being §§ 5-101 through 5-132 of the charter. The plaintiff instituted this proceeding before the agency just mentioned by filing an application wherein she prayed that there be paid to her the benefits which § 5-117 of the chapter renders available to widows of Portland firemen who die in line of duty or as the result of one of the occupational disabilities that are mentioned in chapter V. The latter, after creating the Fire and Police Disability and Retirement Fund, makes provision for a board of trustees and prescribes in § 5-117 the circumstances under which the benefits which the Fund affords are payable. After the defendant board had denied the plaintiff's prayer, which was presented by application and also by a petition for review, the cause was brought to the circuit court by writ of review. The court's judgment order, based upon findings of fact and conclusions of law, held that the plaintiff was entitled to the benefits which she sought. The board thereupon appealed.

       The plaintiff claims that the cause of her husband's death was 'an occupational disability of heart trouble' as that term is employed in chapter V of the city's charter. The defendant board denies that heart trouble was the cause of death. It insists that, in any event, the primary cause of death was not heart trouble. The circuit court's findings of fact declared in part:

'(2) The medical evidence in this case is clear and without dispute that the death of the plaintiff petitioner's husband was proximately caused by heart trouble and heart disease.

'(3) The act in question, and particularly Section 5-117 thereof contemplates death by heart [211 Or. 296] trouble or heart disease as a proximate cause of the death, not only as an end result.

* * *

* * *

'(5) The Board of Trustees of The Fire and Police Disability and Retirement Fund erred in that there was no medical evidence to support their finding that Gustav H. Mundt dies [sic] as a proximate result of any cause other than heart disease and heart trouble.'

       The appellants (the board) submit the following single assignment of error:

'The Court erred in determining there was no substantial evidence to support the denial of plaintiff's application by the Board of Trustees of The Fire and Police Disability and Retirement Fund.'

       To facilitate convenience, we will refer to the plaintiff-respondent as the plaintiff, to the defendants-appellants as the board and to the Fire and Police Disability and Retirement Fund as the Fund.

       This cause, as we have seen, was brought to the circuit court by writ of review. ORS 34.040 provides:

'The writ shall be allowed in all cases where the inferior court, officer, or tribunal in the exercise of judicial functions appears to have exercised such functions erroneously, or to have exceeded its or his jurisdiction, to the injury of some substantial right of the plaintiff, and not otherwise. * * *'

       Upon writ of review the circuit court does not determine whether fact issues were correctly resolved by the agency whose order is under attack, and the findings of the agency will not be disregarded unless the record contains no substantial evidence in their support. Oregon Coal & Navigation Co. v. Coos County, 30 Or. 308, 47 P. 851, and Smith v. City of Portland, 25 Or. 297, 35 P. 665. It is, therefore, law questions that are analyzed and decided on writ of

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review. Curran[211 Or. 297] v. State, 53 Or. 154, 99 P. 420; Hall v. Dunn, 52 Or. 475, 97 P. 811, 25 L.R.A.,N.S., 193.

       As we have indicated, the plaintiff claims, and the board denies, that heart disease was the cause of Mundt's death, although it admits that he actually had heart disease. The board not only denies that heart disease was the cause of death, but it asserts that it possesses jurisdiction to construe the words 'heart trouble' and 'heart disease' as they appear in chapter V. According to the board, those terms refer only to diseases of the organ of the heart and to nothing else. That understanding of the term has been entertained by the board for some time, and it now invokes the rule that the construction which the agency charged with the administration of a statute places upon it, although not conclusive with the courts, is persuasive. Lafferty v. Newbry, 200 Or. 685, 268 P.2d 589; Kelsey v. Norblad, 136 Or. 76, 298 P. 199; and Spencer v. City of Portland, 114 Or. 381, 235 P. 279. While the rule which the board invokes is salutary, it does not privilege the agency to construe the law in a manner inconsistent with its unambiguous language or contrary to its evident purpose. McCarthy v. Coos Head Timber Co., 208 Or. 371, 302 P.2d 238.

       Section 5-115 of the aforementioned chapter V provides:

'For the purposes of this Act the disabilities of heart disease, hernia, tuberculosis and pneumonia are occupational disabilities and a member so disabled shall be entitled to the same benefits from the fund as a member injured in the line of duty or in the performance of duty, * * *.'

       Section 5-117 follows:

'If any member shall die from any cause while in the line of duty or as the result of an occupational [211 Or. 298] disability of heart trouble, hernia, tuberculosis or pneumonia, and shall leave a widow, said widow shall be entitled to the benefits while remaining unmarried and a resident of the state of Oregon.'

       Section 5-107 of the same chapter provides:

'It shall hear and determine all applications for pensions or benefits as hereinafter provided for; provided, however, that the Board shall review any of its determinations based upon the findings of its physicians upon the written request of any applicant; in such cases, it shall refer the matter to three physicians, one of whom shall be selected by the members of the Board, one of whom shall be selected by the applicant, and the third physician shall be selected by the other two physicians; the Board of Trustees shall base its findings upon review on the findings of the majority of the said physicians. Said Board is hereby authorized and empowered to administer oaths, subpoena and examine witnesses, to require the production and examination of papers and documents * * *.'

       The plaintiff's claim for widow's benefits was twice submitted to the board. The first submission was by an...

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