Lauber v. Firemen's Relief Ass'n of Salina

• Decision Date: 08 March 1969
• Docket Number: No. 45228,45228
• Parties: Peter J. LAUBER, Appellant and Cross Appellee, v. The FIREMEN'S RELIEF ASSOCIATION OF SALINA, a Corporation, Appellee and Cross Appellant.
• Court: Kansas Supreme Court

Page 488

451 P.2d 488

202 Kan. 564

Peter J. LAUBER, Appellant and Cross Appellee, v. The FIREMEN'S RELIEF ASSOCIATION OF SALINA, a Corporation,

Appellee and Cross Appellant.

No. 45228.

Supreme Court of Kansas.

March 8, 1969.

Rehearing Denied April 3, 1969.

Syllabus by the Court

1. Under the provisions of K.S.A. 60-2101(a) an aggrieved party may appeal from a final order of an administrative agency or tribunal exercising quasi-judicial functions to the district court.

2. The provisions of K.S.A. 60-2101(a) are construed and it is held they do not authorize the district court to consider an appeal from an administrative agency or tribunal in a trial de novo, nor do they enlarge the jurisdiction of the district court to review administrative matters beyond limitations heretofore imposed by the law of this state. The application of the provision therein for expanded jurisdiction over appeals from judicial bodies lies only in cases where the district court would have had original jurisdiction in the first instance.

3. A district court may not, on appeal, substitute its judgment for that of an administrative agency or tribunal, but is restricted to considering whether, as a matter of law: (a) the tribunal acted fraudulently, arbitrarily or capriciously; (b) the administrative order is substantially supported by evidence; and (c) the tribunal's action was within the scope of its authority.

4. A Firemen's Relief Association organized pursuant to K.S.A. 40-1706 to administer the Firemen's Relief Fund is not a private insurance corporation but a public body corporate administering public funds pursuant to legislative mandate, and its decisions are administrative in nature.

5. The provisions of K.S.A. 40-1707, authorizing the use of funds held in trust for the relief of firemen injured or physically disabled in or by reason of the discharge of their duties as firemen, are construed and it is held: The term 'relief,' as used therein, means the removal in whole or in part of the financial burden, hardship or distress of a fireman, his widow or dependents, resulting from injury or physical disability to a fireman in the discharge of his duties.

6. Within reasonable limits, depending on the funds available and the circumstances of financial need resulting from such injury or physical disability to a fireman, the amount of financial assistance to be paid as relief to a fireman, his widow or dependents, under K.S.A. 40-1707, falls within the discretionary power of the Firemen's Relief Association to administer the fund.

7. Where a fireman of a city of the first class sustained an injury in the performance of his duties as a fireman giving rise to medical and doctor bills, total temporary disability for a period of some months, and a claimed resultant fifteen percent permanent partial disability, the Firemen's Relief Association of such city provided relief in the form of financial assistance to pay the claimant's medical and doctor bills, and a part of the wages while he was totally temporarily disabled. On appeal by the claimant from such administrative decision to the district court, the action of the Firemen's Relief Association denying wages to the claimant for a portion of those months in which the claimant was totally temporarily disabled was found to be arbitrary, but that the denial of relief for the claimed fifteen percent permanent partial disability was found to be supported by substantial evidence and afforded a rational basis for the conclusion reached. Judgment was entered for the amount of wages unpaid while the claimant was totally temporarily disabled. On appeal to this court by the parties from adverse decisions respectively, the record is examined and it is held: The trial court did not commit reversible error and the judgment is affirmed.

D. E. Watson, Salina, for appellant and cross-appellee.

L. O. Bengtson, Salina, for appellee and cross-appellant.

SCHROEDER, Justice.

This is an appeal from the district court of Saline County involving application of the Firemen's Relief Fund Act (K.S.A. 40-1701 et seq.) and procedures relative thereto.

Basically the questions presented are interwoven with the construction of K.S.A. 40-1707 and K.S.A. 60-2101(a), the appeal statute under the new code of civil procedure.

The fumbling of this case from its inception through the Firemen's Relief Association of Salina and in the courts of this state warrants a rather extensive consideration of the facts in an effort to give some authoritative guidance in the application of the act establishing the Firemen's Relief Fund. (K.S.A. 40-1701 to 40-1707, incl.)

Peter J. Lauber was employed by the Fire Department of the city of Salina, Kansas, from January 19, 1957, to July 15, 1963. Lauber alleged in his claim for relief that he was injured on the 11th day of December, 1961, while discharging his duties as a member of the Salina Fire Department. At that time the firemen were fighting a fire at the 'Barn' in the 200 block south between 7th and 8th Streets in the city of Salina, Kansas. Lauber suffered injury and physical disability to his back and spine when he fell from a ladder while holding the nozzle of a fire hose by reason of a blast of smoke and heat which hit him while so performing his duties as a fireman. At the time Lauber was thirty-three years of age.

On the 12th day of December, 1961, Lauber notified the Firemen's Relief Association of his injury by informing his captain and lieutenant.

After the accident Lauber had extensive pain in his back, but continued to perform his usual duties for the Salina Fire Department. On August 30, 1962, Lauber gave notice to the Firemen's Relief Association of Salina that he would undergo a spinal fusion on September 13, 1962, by informing the president of the Association. The spinal fusion was performed by Dr. Roy B. Coffey of Salina as scheduled, and as a result Lauber was totally disabled from September 13, 1962, to March 22, 1963. When he first returned to work Lauber was unable to perform full duties as a fireman.

Lauber was paid full salary as a member of the Fire Department of the city of Salina from December 11, 1961, to July 15 1963, except for the months of January, February, March and a part of April, 1963. The salary for the unpaid balance was $1,120. No relief was provided for him during this period.

After Lauber's injury and prior to August, 1962, in addition to his work as a fireman, he worked for Mr. McCabe fixing fence and for Beverly on a swimming pool. Subsequent to July 15, 1963, Lauber was employed by Richardson Storage and Transfer as a driver, by Nelson Truck Lines as a driver, and by Saline Concrete as a driver. His employment was substantially continuous from July 15, 1963, to August 24, 1965. After August 24, 1965, he has drawn some unemployment.

The Firemen's Relief Association of Salina (defendant-appellee-cross appellant) is a Relief Association incorporated under the laws of Kansas pursuant to K.S.A. 40-1707, and ordinances of the city of Salina of identical wording.

At the time of Lauber's injuries the Firemen's Relief Association had approximately $110,000 in its treasury. It carried coverage on the members of the Fire Department of the city of Salina with Blue Cross-Blue Shield and Maryland Casualty Company. Eighty-five percent of the premiums on this insurance was paid by the Firemen's Relief Association and fifteen percent by the fireman. The fifteen percent was for coverage of time when the fireman was not on duty.

Lauber made application for the Blue Cross-Blue Shield insurance and knew of its coverage. Blue Cross-Blue Shield paid all of his medical expenses except Asbury Hospital, $15 and Mowery Clinic, $36. The coverage by Maryland Casualty carried on Lauber was an accident and health policy. The trial court found Lauber failed to make claim under the Maryland policy within the time limits and consequently was unable to collect thereunder. The beneficiary under this policy was the Firemen's Relief Association, but the Association is required to hold any proceeds paid thereunder in trust for the injured fireman. The Firemen's Relief Association failed to make any claim under the Maryland policy by reason of Lauber's injuries, Chief Travis contending at the hearing before the Firemen's Relief Association that it was Lauber's duty to make such application.

Lauber in this claim for relief against the Firemen's Relief Association sought loss of wages, while totally disabled and still employed as a fireman for and with the Fire Department of the city of Salina, for the months of January, February, March and a part of April, 1963, in the total sum of $1,120.20 together with interest at the rate of six percent from April 15, 1963, to September 3, 1965, in the sum of $160.37 (total $1,280.57). He also claimed relief for fifteen percent permanent partial disability calculated on a life expectancy of 41.25 years from July 15, 1963, in the total sum of $26,581.50 plus interest thereon at the rate of six percent from such date in the sum of $3,406.86. The total loss and relief requested by Lauber as a result of his injuries and resulting physical disability together with interest amounts to $31,268.93.

On the 15th day of April, 1964, Lauber caused to be served on the Firemen's Relief Association 'Demand for Payment of Loss Due to Injuries and Physical Disability Sustained while Discharging Duties as a Fireman.' After Lauber had waited for more than thirty days and the Firemen's Relief Association and its officers did not comply with his demand, he filed a petition in mandamus in the district court of Saline County against the Firemen's Relief Association and its officers to compel them to pay his claim from funds in their possession. This action was dismissed by the district court and on appeal to the Supreme Court was affirmed on the 12th day of June, 1965, in Lauber v. Firemen's Relief Ass'n of Salina, 195 Kan. 126, 402...