Kelly v. City of Detroit, 70

• Decision Date: 04 January 1960
• Docket Number: No. 70,70
• Citation: 100 N.W.2d 269,358 Mich. 290
• Parties: Alice KELLY, Plaintiff and Appellee, v. CITY OF DETROIT, a municipal corporation, Division of Police and Firemen's Retirement System and Board of Trustees Thereon, et al., Defendants and Appellants.
• Court: Michigan Supreme Court

Page 269

100 N.W.2d 269

358 Mich. 290

Alice KELLY, Plaintiff and Appellee, v. CITY OF DETROIT, a municipal corporation, Division of Police and Firemen's Retirement System and Board of Trustees Thereon, et al., Defendants and Appellants.

No. 70.

Supreme Court of Michigan.

Jan. 4, 1960.

Nathaniel H. Goldstick, Corp. Counsel, Nick Sacorafas, Asst. Corp. Counsel, Detroit, for defendants and appellants.

Daniel G. Shea, Riviera Beach, Fla., for plaintiff and appellee.

Before the Entire Bench.

CARR, Justice.

Plaintiff in this case is the widow of John F. Kelly who joined the police department of the City of Detroit in September, 1929. In 1934 he sustained an injury to his leg which later became infected and apparently caused him trouble throughout the balance of his life. It is claimed that the injury was received in the course of performance of duties as a police officer. In 1939 it was discovered that officer Kelly had diabetes which, although treated, was not properly controlled and contributed to his poor physical condition. In 1944 he developed tuberculosis and became a patient in Detroit Tuberculosis Sanatorium in June of that year. Apparently this condition was entirely healed some years later. Officer Kelly died April 2, 1952, the medical certificate indicating that the direct cause of death was hypertensive heart disease and that contributing causes and conditions were chronic nephritis and diabetes mellitus.

In September, 1944, officer Kelly petitioned for a disability pension, referring in his application to the 1934 injury and his subsequent ulcerated leg. The petition was granted, and, subsequent examinations made from time to time indicating that he was in poor physical condition as a result of his ailments, particularly diabetes, he was continued on disability retirement until his death. Thereafter plaintiff herein applied for widow's benefits under the provisions of the charter of the city of Detroit, claiming that officer Kelly had been injured in 1934 in the course of his duty. The application was denied on May 19, 1952.

Under date of September 26, 1954, plaintiff filed a petition with the board of trustees of the police and firemen's retirement system, asking for a reinvestigation of the case and for the appointment of a medical board of review pursuant to charter provision. The request was granted and the medical board was appointed. The members of the board were not in accord as to the cause of causes of death, and the board of trustees again denied the application for widow's benefits. Thereupon plaintiff instituted certiorari proceedings in the circuit court of Wayne county which resulted in the granting of a rehearing on the ground that that she had not been afforded a proper hearing of the matters referred to in her petition, and had not been given an opportunity to produce proofs before the board of trustees. In accordance with the court action the board granted a hearing at which plaintiff was given an opportunity to present testimony and a request for a medical board of review was also granted. It appears from the record before us that the parties agreed with reference to the submission of the medical questions at issue to the medical board. The members of said board held meetings and filed separate reports, two of them concluding that the injury to officer Kelly's leg had some causal connection with his death and the third member of the board disagreeing with such conclusion.

Pursuant to resolution of the board of trustees, the medical findings of the board of review, as indicated in the individual reports submitted by the members thereof, were received on April 29, 1958, and the executive secretary was directed to furnish to members of the board of trustees copies of the medical board of review reports that had been submitted in 1955. The record further indicates that on May 13, 1958, the application of plaintiff was tabled 'pending a further investigation to be made.' On June 24th following the application was denied by unanimous action of the board of trustees. Subsequently plaintiff filed petition requesting a hearing, which was denied.

It also appears from the supplemental appendix filed by defendants that at a meeting of the board of trustees held on May 27, 1958, two members of the police department who had been connected therewith for a number of years appeared and were questioned with reference to their knowledge of the injury which, as claimed, was sustained by officer Kelly in 1934. No transcript of the testimony has been submitted. Whether the witnesses were examined under oath does not appear, nor is it shown that plaintiff or anyone representing her was notified of the investigation that was being conducted by the board of trustees at its meeting. Neither does it appear that the board of trustees made any specific finding of fact with reference to the matters referred to in such testimony. No further discussion thereof is required.

Following the denial of her application plaintiff filed her petition in the circuit court of Wayne county asking that a writ of mandamus issue requiring the defendant board of trustees, and the members thereof, to set aside the order denying her application, and to grant the same in accordance with the findings of the medical board of review. The circuit judge before whom the matter was heard came to the conclusion that under the provisions of the charter of the City of Detroit relating to the payment of pensions to disabled members of the police and fire departments, and to their dependents in certain cases, plaintiff was entitled to the relief sought. The writ of mandamus was accordingly issued as prayed and defendants have appealed. In substance it is argued in their behalf that the final determination of the question as to plaintiff's right to the benefits claimed by her rested with the board of trustees, and that if the pertinent provision of the charter is construed as binding the trustees to accept as conclusive the findings of the medical board with reference to the causative factors contributing to the death of officer Kelly such provision is invalid.

The present charter of the City of Detroit as adopted by the people of that city establishes a police and fireman's retirement system and vests the general administration and management thereof in a board of trustees. Said board is authorized to appoint a medical director who is required to make examinations and investigations in connection with all applications for death benefits and to report his conclusions and recommendations to the board. The provision directly involved in the instant case is found in Title 9, Chapter 7, Article III, section 12(c), of the charter, and reads as follows:

'(c) If the Board of Trustees, any member, any beneficiary or any other person claiming benefits hereunder, shall disagree with any medical finding of the Medical Director, the Board of Trustees on its own motion may or on petition of any such member, beneficiary or person claiming benefits hereunder, shall refer the matter in dispute to a Medical Board of Review consisting of three physicians or surgeons, of whom one shall be named by the Board of Trustees, one by the affected member, beneficiary, or other person claiming benefits, and the third by the two so named. The Medical Director shall in no case be a member of the Board of Review. Such Board of Review shall be named within ten (10) days after the filing of such petition. The Board of Review shall within sixty (60) days from its appointment file with the Board of Trustees a written report of its findings, which shall be final and binding as to the medical findings. The reasonable expenses of such Board of Review shall be paid from the Expense Fund.'

Other provisions of the charter relate to disability pensions and retirement allowances, and also to the payment of a pension to a widow or children of a member killed in the performance of his duty or whose death has resulted from illness or injuries received in the performance of duty. The latter provision, which appears in title 9, Chapter 7, Article VI, Part D, section 1, of the charter, is the basis for plaintiff's application in the instant case.

The basic question at issue is the interpretation of the provision above quoted with reference to the functions of the medical board of review. It will be noted that the medical findings of said board are declared to be 'final and binding.' The language of the provision is not ambiguous, and, being specific, is controlling. The framers of the charter, and the people of the city in its adoption, must be presumed to...