Mitchell v. City of Springfield

• Decision Date: 14 November 1966
• Docket Number: No. 8577,8577
• Citation: Mitchell v. City of Springfield, 410 S.W.2d 585 (Mo. App. 1966)
• Parties: Frederick C. MITCHELL and Floyd D. Driver, Plaintiffs-Respondents, v. CITY OF SPRINGFIELD, Missouri, and E. L. Anderson, Sam Robards, Charles Upp, vic Rohrer, H. C. Boehm, Paul Brookshire and Charles Hicks, as members of the Board of Trustees of the Policemen's and Firemen's Retirement Fund of the City of Springfield, Missouri, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 585

410 S.W.2d 585

Frederick C. MITCHELL and Floyd D. Driver, Plaintiffs-Respondents, v.CITY OF SPRINGFIELD, Missouri, and E. L. Anderson, Sam Robards, Charles Upp, vic Rohrer, H. C. Boehm, Paul Brookshire and Charles Hicks, as members of the Board of Trustees of the Policemen's and Firemen's Retirement Fund of the City of Springfield, Missouri, Defendants-Appellants.

No. 8577.

Springfield Court of Appeals, Missouri.

Nov. 14, 1966.

Motion for Rehearing or to Transfer Denied Dec. 14, 1966.

Application to Transfer Denied Feb. 13, 1967.

Don G. Busch, Springfield, for defendants-appellants.

Benjamin J. Francka, Springfield, for plaintiffs-respondents.

COTTEY, Special Judge.

The City of Springfield has by ordinance adopted a policemen's and firemen's retirement plan which makes available two types of pensions for members who are retired for disability: 1st, a 'non-duty disability' pension, under which one-half the member's average annual salary is payable to him if his disablement is 'not the direct result of occupational duties'; and 2nd, a 'duty disability' pension, under which two-thirds of his salary shall be paid him if he is 'disabled as the direct result of occupational duties, including but not limited to accidents and/or hazards peculiar to the employment.'The ordinance vests 'exclusive jurisdiction of all retirement claims' in a Board of Trustees consisting of the mayor and three members each from the Fire Department and the Police Department.The decisions of the Board are 'subject to review by writ of certiorari,' and that method was followed in the case before us; but the extent of the review is governed by V.A.M.S. Chapter 536.State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68, 72.

In the winter of 1963respondents Driver, 44, and Mitchell, 45, veteran members of the Fire Department, were found to be totally and permanently disabled from heart ailments.Both applied for duty disability pensions.Both were directed to submit to examination by a panel of physicians appointed by the Board pursuant to the provisions of the ordinance, and both did so.The findings and conclusions of the examining physicians were substantially alike in both cases.On the basis of the physicians' reports the Board, without a hearing, denied duty disability pensions but awarded non-duty disability pensions to both men.Both thereupon demanded, and ultimately obtained, a hearing before the Board on the question of their entitlement to the larger pension.Their claims were consolidated and heard together, and both were again denied.On certiorari to the circuit court some additional testimony was taken, not germane to the immediate discussion, and a judgment was entered reversing the Board's decision and remanding the case with instructions to award the duty disability pensions.From that judgment the Board appeals.The issues fall under four main heads and require us, 1st, to examine the purpose and scope of the plan, 2nd, to review the evidence touching respondents' claims, 3rd, to consider the effect of the Board's precedents in similar cases, and 4th, to determine whether respondents were accorded a fair hearing before the Board.Of these, in order.

It has generally been held with regard to plans to this kind that by contrasting disabilities which are 'not the direct result of occupational duties' with those which are, a purpose is disclosed to distinguish the two in a very material particular, viz., as to their cause, and by this method to afford, in the first instance, a benefit in the nature of ordinary health and accident insurance to every member who, during the term of his service, loses his health from any of 'the thousand natural shocks that flesh is heir to,' but, in the second, to reserve the more substantial pension for him who sacrifices his health in the public interest and who, on that account, is the more meritorious object of public concern.But as the benefit is larger, so the burden of establishing entitlement to it is greater; for whereas in the first instance the claimant has only to prove that he is permanently and totally disabled, in the second he must go a step farther and show a direct causal connection between his duties and his disability, or, as one case puts it, that his disability 'occurred because he was a fireman rather than merely while he was a fireman.'State ex rel. Johnson v. Board of Trustees of Firemen's Pension Fund of City of Madison, 170 Wis. 154, 174 N.W. 465;State ex rel. King v. Board of Trustees of Firemen's Pension Fund of Kansas City, 192 Mo.App. 583, 184 S.W. 929, 932;Board of Firemen's Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 182, 27 A.L.R.2d 965;Police Commissioner of Baltimore City v. King, 219 Md. 127, 148 A.2d 562, 565;Renz v. Hibbing Firemen's Relief Ass'n, 186 Minn. 370, 243 N.W. 713, 714--715; annotation 27 A.L.R.2d 974, 978 et seq.The language of the ordinance, however, does not require the victim's duties to be the 'sole cause' of his disability, but only that his disability be the 'direct result' of his duties.Those terms are not synonymous.Whatever is the product of two or more concurrent and contributing causes is the direct result of each, though neither is the sole cause.Fawkes v. National Refining Co., 341 Mo. 630, 108 S.W.2d 7, 11.It follows, in our opinion and as respondents contend, that aggravation of an existing physical condition, to the point where the condition is rendered disabling, may entitle the victim to a duty disability pension if, but only if, the aggravation itself is shown to have been 'the direct result of occupational duties.'In such a case the chain of causation remains intact, linking the disablement with the duties that conduced to it.McQuillin, Municipal Corporations, § 12.149, p. 633.Having established that as the point of view from which the evidence ought to be examined, we turn to the evidence itself.

At the hearing before the Board respondents gave detailed accounts of the physical stress and mental strain, of the danger, tension and exhaustion, to which they had regularly been subjected in the performance of their duties over the years.Both gave histories of noticing some loss of stamina, of feeling 'sluggish' and 'slowing down,' for a period of about two years before their retirement, and of episodes of chest pains at intervals during the latter part of that period.The last such experience, in Driver's case, occurred while he was washing a truck on the final day of his active service; in Mitchell's while he was watching television in the station house on the last day of his actual service.Both men had been medically examined during the period of their service, but no evidence of heart trouble had been found prior to their retirement.

It was established by the reports of the examining physicians, as supplemented by their testimony, that Driver and Mitchell were both disabled from myocardial infarctions which were the end product, in Driver's case, of atherosclerosis, and in Mitchell's, of arteriosclerosis.Both ailments are commonly known as hardening of the arteries, the former affecting the larger vessels, the latter the smaller.In their progress and effect they are substantially identical; each is characterized by a diminution of the elasticity of the vessel walls, by the gradual formation of a scaly deposit on the interior of the walls, and, in consequence, by an obstructed passage and a diminished supply of oxygen-carrying blood to the heart muscle.The exact cause of the 'disease' is unknown, 'but the current feeling is that this is related to the amount of fats taken in the diet.'It is, in any event, 'a gradual process that covers a period of time.'The infarction to which it so frequently leads may occur 'during or after severe exercise,' or, on the other hand, simply 'upon hearing bad news,' or even while the sufferer 'is asleep.''Exertion isn't necessary' to produce it; in fact, 'exercise does not appear to be a factor in the overall figures, so that a group of acrobats and a group of office workers will have roughly the same incidence of my-ocardial infarction in the United States.'It was the opinion of these physicians that Driver's condition was, 'in all probability, not related to his occupation,' and that it cannot be said 'that his occupation was an aggravating cause.'Of Mitchell's condition they said, 'it is not an occupational disease and in this incident was not precipitated or aggravated by accident'; that 'it would have occurred regardless of what occupation he performed.'And of both, 'I doubt that we can call either of these patients disabled on the basis of a duty connected disability.'

The only other witness was a Dr. Skolnick who had written several articles on the occupational diseases of firemen, a subject in which he had interested himself 'as a hobby, not as a livelihood.'He had not examined respondents.By listening to the testimony, however, he had acquired a sufficient grasp of the problem to form some very definite conclusions on it.He gave the Board the benefit of them.He deprecated the 'vague conclusions' of the examining physicians as 'to the cause of the disabilities of the firemen involved today,' because they left the subject 'in a state of confusion.'It was 'an unnecessary state * * * the disease is unimportant.'To require respondents to prove the cause of their disability would be to 'punish two men who were firefighters' and who had 'developed a problem.'Such an approach would be 'inhuman in many ways.'The real issue before the Board was simply this, 'Have they been firefighters, are they able to stay firefighters?'That was 'all the question involved'; and it was 'a legal problem, not a medical problem.'He qualified himself to discuss that aspect of it by declaring, 'I know all the laws, I have helped make many of them.'The Board was only...