State ex rel. McManus v. Bd. of Trs. of Policemen's Pension Fund

• Decision Date: 01 March 1909
• Parties: STATE EX REL. MCMANUS v. BOARD OF TRUSTEES OF POLICEMEN'S PENSION FUND ET AL.
• Court: Wisconsin Supreme Court

138 Wis. 133

119 N.W. 806

STATE EX REL. MCMANUS

v.BOARD OF TRUSTEES OF POLICEMEN'S PENSION FUND ET AL.

Supreme Court of Wisconsin.

Feb. 16, 1909.

Dissenting Opinion March 1, 1909.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Certiorari by the State, on the relation of William McManus, against the Board of Trustees of the Policemen's Pension Fund and others, and Mary T. Sullivan and others, impleaded, to review the action of the board in awarding a pension. Judgment for relator, and Mary T. Sullivan and others appeal. Reversed and remanded, with directions to affirm the action of the board.

Certiorari brought by relator, who had long been a contributor to the policemen's pension fund of Milwaukee and at the time of the relation was retired and pensioner thereon, to review the action of the board of trustees in awarding a pension to the appellant Mary T. Sullivan and her children, as the widow and children of the deceased, William L. Sullivan, at the time of his death a member of the police force. The board made due return, from which it appears that the pension was claimed on the ground that Policeman Sullivan contracted pneumonia by reason of exposure to which he was subjected in the course of a trip to New York to make an arrest. The return presents the record, which merely mentions the names of certain witnesses on behalf of the applicant and specifies the subjects on which they testified, but fails to contain such testimony. The testimony of certain other witnesses, apparently called in opposition to the application, is set forth in full, and the return shows a decision by the board, by majority vote, that the applicants are entitled to the pension according to the statute. After the return an application was made by the three appellants to be admitted as parties defendant, because a reversal of the board's action would affect their interests, and they were so admitted, and attempted to raise various objections to the right of the relator to question the action of the board by certiorari. Such objections were overruled, and the trial court held that, even though it appeared by the record that the board had found that Sullivan died as the result of pneumonia contracted by him by reason of exposure to which he was subjected in the actual and active performance of duty as a policeman, the board were not authorized by law to grant him a pension, and accordingly entered judgment reversing their decision, from which judgment Mary T. Sullivan and her two children bring this appeal.

Marshall, J., dissenting.John Toohey, Walter H. Bender, and J. L. O'Connor, for appellants.

Doe & Ballhorn, for respondent.

DODGE, J. (after stating the facts as above).

Brushing aside various obstacles of practice or procedure which are urged by the interveners to maintenance of this action as between the original parties, we proceed at once to a consideration of the real question involving the merits of the action; that is, whether pneumonia suffered and contracted in the line of, and by reason of, the active performance of duties assigned to a policeman, is such an injury as entitles his widow to a pension if death results therefrom. The answer must be found by construction of sections 8 and 9, c. 397, pp. 642, 643, of the Laws of 1903. That act, after making provision for the creation of a fund, partly by deduction from policemen's salaries and partly from other sources, and creating a board of trustees for the administration thereof, provides, in sections 8 and 9:

“Sec. 8. If any member of the police department, while engaged in the performance of his active duty as such policeman be injured,and found, upon an examination by a medical officer ordered by said board to be physically or mentally permanently disabled by reason of such injury so as to render necessary his retirement from service in such department, such board shall retire such disabled members from service; provided no such retirement on account of disability shall occur unless the member has contracted such disability within the hours of each day or night when he is required to be on active duty by the rules of the department, or while he is engaged in the performance of ‘emergency duty’ during his regular ‘off hours.’ * * *

Sec. 9. If any member of the police department shall, while in the performance of his duty, be killed, or die as the result of an injury received while in the line of his duty, as described in the preceding section, * * *” his widow and minor children, if any, shall receive a pension.

It will be observed that the right to retirement, under section 8, and the right to a pension in case of death, under section 9, are dependent on the condition, under section 8, that the policeman “be injured,” and, under section 9, that he die as the result of “an injury”; and the question raised by relator is whether the contracting of disease is being injured and is the suffering of an injury within the meaning of this act. Section 9, by the italicized words, evidently refers back to section 8 for whatever of definition of “injury” may there be found. The word “injury,” in ordinary modern usage, is one of very broad designation. In the strict sense of the law, especially the common law, its meaning corresponded with its etymology. It meant a wrongful invasion of legal rights and was not concerned with the hurt or damage resulting from such invasion. It is thus used in the familiar phrase damnum absque injuria. In common parlance, however, it is used broadly enough to cover both the damnum and the injuria of the common law, and, indeed, is more commonly used to express the idea belonging to the former word, namely, the effect on the recipient in the way of hurt or damage, and we cannot doubt that at this day its common and approved usage extends to and includes any hurtful or damaging effect which may be suffered by any one. Hence, unless some reason to the contrary is presented, it should be so understood in these statutes. Section 4971, subd. 1, St. 1898. The respondent contends that, nevertheless, the word should be limited to the results of external violence. By itself the word “injury” or “injure” has no more application to the result of violence than to the result of any other injurious influence. A disease resulting from negligence of a physician in failing to give treatment is just as much an injury in common phrase as if it resulted from affirmative maltreatment or external violence. Therefore there is nothing inherent in the word to limit the injuries to which this statute applies to those from physical or external violence. If one be tortiously exposed to extreme cold, he may suffer the freezing and consequent loss of a limb, or the chill of an internal membrane or tissue and resultant congestion or disease. No reason is apparent why either is more or less an injury than the other. In examining section 8 we find some suggestions in the context of the mental conception of the legislators in the use of the word “injured.” In one phrase it is used in context and collocation with physical or mental permanent disability, and in another the legislators speak of such disability as one to be “contracted.” These both point strongly to a conception of something other than external violence, which would ordinarily be said to be suffered or inflicted rather than contracted. The purpose of the act, too, would seem to require the broader meaning of the word. Why is not the policeman who, in the faithful performance of his duty, exposes himself to a danger like smallpox or diphtheria infection, as worthy of provision for his disability or for his widow as one who exposes himself to the knife or the club of a lawbreaker? Why is it not as promotive of the efficiency of the force for the protection of public welfare that he be encouraged in the one case as in the other? These considerations, and many others like them which might be mentioned, constrain us to the conclusion that the word “injury” is used in this statute in a sense broad enough to include the contracting of a disease, provided, of course, that such injury is suffered in the course of and by reason of the performance of the distinctive duties imposed upon the sufferer as a policeman (Hutchens v. Covert, 39 Ind. App. 382, 78 N. E. 1061), a fact which we deem to have been ascertained and decided upon sufficient showing by the board of trustees, although their record is not as full as it might be in its disclosure of the class of evidence which was submitted for their consideration. A provision in section 9 for a pension upon death for any cause after 15 years' service marks a contrast or antithesis to this last requirement of causal connection between the active service and the injury, and does not signify a limited...