Bjork v. Board of Trustees of Firemen's Pension Fund of City and County of Denver, 13467.

• Decision Date: 25 February 1935
• Docket Number: 13467.
• Citation: 96 Colo. 334,43 P.2d 999
• Parties: BJORK v. BOARD OF TRUSTEES OF FIREMEN'S PENSION FUND OF CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

43 P.2d 999

96 Colo. 334

BJORK v. BOARD OF TRUSTEES OF FIREMEN'S PENSION FUND OF CITY AND COUNTY OF DENVER.

No. 13467.

Supreme Court of Colorado

February 25, 1935

Rehearing Denied April 22, 1935.

In Department.

Error to District Court, City and County of Denver; Frank McDonough, Sr., Judge.

Certiorari proceeding by Charles E. Bjork against the Board of Trustees of the Firemen's Pension Fund of the City and County of Denver. To review a judgment denying the writ, petitioner brings error.

Affirmed.

Everett Bell and B. E. Woodward, both of Denver, for plaintiff in error.

James D. Parriott and Robert J. Kirschwing, both of Denver, for defendant in error.

HILLIARD Justice.

A proceeding in certiorari by plaintiff in error, petitioner below, to require defendant in error, respondent at trial, to retire him from the fire department of Denver, and to allow him a pension from the firemen's pension fund. To judgment denying the writ, error is assigned.

It appears that May 1, 1913, petitioner was appointed as a fireman; that after a fire at St. Joseph's Hospital January 26, 1916, at which petitioner caught cold and became ill, he was granted indefinite leave of absence with pay that May 1, 1916, he returned to duty; that March 1, 1919 petitioner, urging ill health, applied for and was granted six months' leave, without pay, near the end of which time, not 'feeling normal,' as he says, he asked the chief of the department to extend his leave, which request was denied, and he was ordered to take a physical examination and report for duty September 1, 1919; that fearing he could not pass such examination, petitioner, instead of returning and reporting for work, secured other employment and did not report to the department till the end of 1919; that on his return he presented himself to the manager of safety and excise and chief of the fire department, who told him he had lost his rights and refused to restore him to the service that not until October 15, 1931, did the petitioner pursue the matter further, when, claiming disability as of and from the time he had leave in 1919, petitioner made informal demand of respondent and executive officers of Denver that he be retired as of March 1, 1919, or March 1, 1920, with full pay for the year, and that respondent order payment from the pension fund, as pension to him, a sum equal to one-half of his monthly compensation, to date from March 1, 1920; that November 11, 1931, petitioner filed with respondent a formal demand to the same end, alleging that at the St. Joseph Hospital fire, previously mentioned, and while in line of duty, he became 'mentally, totally and permanently disabled (insane)'; that March 18, 1932, on evidence taken and argument of counsel had, the respondent found and determined that the testimony failed to show that petitioner had suffered any injury 'while performing his duty as a member of the fire department,' and disallowed his petition; that April 26, 1932, the Denver civil service commission approved the action of respondent in denying petitioner's demand, 'for the reason,' as the commission recited, 'that insufficient evidence was presented to support his claim'; that May 23, 1933, petitioner sought review in the district court, where, November 23, 1933, the finding was that in refusing petitioner's request for retirement on pension respondent acted within its jurisdiction, conformed to the requirements of its...