State ex rel. Moore v. Glassco

• Citation: 149 S.W.2d 848,347 Mo. 977
• Decision Date: 18 April 1941
• Docket Number: 37404
• Parties: State of Missouri at the relation of Mary Moore, Relator-Appellee, v. John H. Glassco, Edward H. Handlan, Louis Nolte, James J. Moran, Harry Powell, A. B. Lambert and John Nangle, Members of the Board of Trustees of the Police Retirement System of the City of St. Louis, Appellants
• Court: United States State Supreme Court of Missouri

149 S.W.2d 848

347 Mo. 977

State of Missouri at the relation of Mary Moore, Relator-Appellee, v. John H. Glassco, Edward H. Handlan, Louis Nolte, James J. Moran, Harry Powell, A. B. Lambert and John Nangle, Members of the Board of Trustees of the Police Retirement System of the City of St. Louis, Appellants

No. 37404

Supreme Court of Missouri

April 18, 1941

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Reversed.

E H. Wayman and Francis Finley for appellants.

(1) The death of a police officer, who dies after being injured by slipping on ice while boarding a street car to go home after he has completed extra hours of duty and called his station notifying his district of the completion of such duty, was not "the natural and proximate result of an accident occurring at some definite time and place while the member was in the actual performance of duty," so as to entitle his widow to accidental death benefits as provided by Revised Statutes 1929, section 8911 (9). R. S. 1929, secs. 8906-8918; State ex rel. King v. Fireman's Pension Fund, 192 Mo.App. 583, 184 S.W. 929; McAuliff v. Police Pension Fund, 115 S.W. 808; Hornburg v. Morris, 157 N.W. 556, 163 Wis. 31; Wimmer v. Upper Saucon Ty. School Dist., 176 A. 840, 116 Pa.Super. Ct. 553. (2) The board of trustees of the Police Retirement System having determined as a fact that Officer Moore's death was not "the natural and proximate result of an accident occurring at some definite time and place while the member was in the actual performance of duty;" the court erred in directing the board to pay relator accidental death benefits. R. S. 1929 sec. 8911 (9); State ex rel. Lambert v. O'Malley, 121 S.W.2d 228; State ex rel. Lambert v. Padberg, 346 Mo. 1082; State ex rel. Shartel v. Skinker, 25 S.W.2d 478, 324 Mo. 955; McCarthy v. Couzens, 183 N.W. 80; Bjork v. Board of Trustees, 43 P.2d 999, 96 Colo. 334; Newbrand v. City of Yonkers 21 N.Y.S. (2d) 70. (3) The court erred in directing appellants to enter an order allowing appellee (relator below) accidental death benefits, since in a certiorari proceeding, the court has jurisdiction only to quash or refuse to quash the record of the inferior tribunal. State ex rel. St. Louis County v. Evans, 139 S.W.2d 967; 14 C. J. S., 319, 320; State ex rel. Hoyt v. Shain, 93 S.W.2d 992, 338 Mo. 1208; Ferris on Extraordinary Legal Remedies, p. 213; State ex rel. v. Ellison, 272 Mo. 571.

John C. Vogel for appellee.

(1) Paragraph 9, Section 8911, Revised Statutes 1929, being a pension act and remedial in its character, should be liberally construed. 48 C. J. 787; Dahlin v. Mo. Comm. for Blind, 262 S.W. 420; Hurley v. Sykes, 231 P. 748, 69 Cal.App. 310; In re Benson, 178 Okla. 299, 62 P.2d 962; Elliott v. Omaha, 109 Neb. 478, 191 N.W. 653; Hammel v. Town of Savgerties, 1 N.Y.S. (2d) 208, 253 A.D. 84; In re Westphal, 259 N.Y.S. 303, 144 Misc. 729, affirmed 226 N.Y.S. 1015, 240 A.D. 85; Casserly v. Oakland, 12 P.2d 425. (2) The test to determine whether an officer is entitled to the "accidental injury" benefits under Section 8911, Revised Statutes 1929, is not whether the accident occurred during the exact hours of duty, but whether the accident was the proximate result of the performance of an act of duty, regardless of whether the accident occurred before or after or while the officer is technically "on duty." In re Benson, 178 Okla. 299, 62 P.2d 962; Buckley v. Roche, 290 P. 646; Gloeser v. Buffalo, 187 N.Y.S. 339; People ex rel. Donovan v. Retirement Board, 326 Ill. 579, 158 N.E. 220; Rhodes v. United States, 79 F. 740; Metting v. Lehr Const. Co., 32 S.W.2d 121; Howes v. Stark Bros. Nurseries & Orchards Co., 22 S.W.2d 839, 223 Mo.App. 793. (a) The injury sustained by Officer Moore was the proximate result of the performance of an act of duty, which required him to walk across the street at the time and place where he slipped and fell. In re Benson, 178 Okla. 299, 62 P.2d 962; Evans v. Ry. Co., 11 Mo.App. 463; Winkler v. Ry. Co., 21 Mo.App. 99; Powell v. Frisco Railroad, 229 Mo. 246; Kuba v. Nagel, 124 S.W.2d 579. (3) The facts in the case were agreed upon and the decision of the board of trustees was a decision of a question of law. The writ of certiorari is the proper method of correcting an erroneous ruling on a question of law. (a) A ruling of the board of trustees on a question of fact is not conclusive. State ex rel. Lambert v. Padberg, 145 S.W.2d 123. (4) In a certiorari proceeding the reviewing court has jurisdiction to quash the record and remand the cause for proceedings not inconsistent with the opinion of the reviewing court; the judgment in this case did nothing more. Iba v. Chicago, B. & I. Ry. Co., 182 S.W. 135, 192 Mo.App. 297.

OPINION

Clark, J.

Appeal from the Circuit Court of the City of St. Louis. The amount in controversy gives us jurisdiction.

Carl Vernon Moore, a member of the St. Louis police force, died on February 27, 1933. His widow (appellee) filed an application with the Board of Trustees of the Police Retirement System (appellants) asking for the allowance of accidental death benefits under the provisions of Section 8911, Revised Statutes 1929 (Mo. Stat. Ann., sec. 8911, page 6264). The application was heard by the Board on an agreed statement of facts showing: that for some time prior to February 4, 1933, Officer Moore had been assigned to regular duty in a scout car; on that day he was detailed for extra duty from six P. M. to eight P. M. as a watchman in a store; at the expiration of that time he walked to the nearest street call box and reported off duty to his district station; he then walked across the street to board a street car to go to his home, slipped on the icy pavement and received injuries from which he died twenty-three days later; the Board denied the application for the reason "that Officer Moore was, under the agreed statement of facts, not in the actual performance of his duty at the time of the accident which caused his death."

The widow sued out a writ of certiorari in the circuit court where, after a trial, a decree was rendered quashing the record of the Board and remanding the cause with directions for the Board to allow the claim.

From this decree the Board has appealed and has made a number of assignments of error only one of which, as we view the case, need be discussed, to-wit: is the decree justified under a proper construction of the statute?

Paragraph (9) of Section 8911, supra, authorizes the award of accidental death benefits upon proof "that such death was the natural and proximate result of an accident occurring at some definite time and place while the member was in the actual performance of duty."

In the excellent briefs filed by counsel on both sides in this action, no case has been cited construing a statute with the same wording as that above quoted.

We will first discuss the cases cited by the appellee. In Howes v. Stark Bros. Nurseries, 223 Mo.App. 793, 22 S.W.2d 839, the St. Louis Court of Appeals held that a teamster who was struck and injured by an automobile while on a public highway going from his employer's barn, after his day's work was done, to a bus furnished by the employer to transport the workmen to their homes, was entitled to recover under the Workmen's Compensation Act, which provided compensation for injuries "arising out of and in the course of his employment." The court reviewed a number of decisions some of them holding that as a general rule employees will not be regarded as in the course of their employment while going to or returning from their place of work. In substance, the reasoning of that decision is: that the furnishing of transportation by the employer was an incident of the employment and, as plaintiff was injured at a place where he was expected to be, he had not removed himself from the course of his employment. Metting v. Lehr Construction Co., 225 Mo.App. 1152, 32 S.W.2d 121, was a Workmen's Compensation case. There the plaintiff was killed in sliding down a rope after completing his work on a storage tank. It was held that the injury was one "arising out of and in the course of his employment," but, in general language, the court distinguished the case from others where the employee was injured, away from his employer's premises, while going to or returning from the place of employment. In People ex rel. Donovan v. Retirement Board, 326 Ill. 579, 158 N.E. 220, it was held that a policeman, struck by an automobile and killed while walking across a street to mail a letter as directed by his superior officer, was injured "in the performance of an act of duty." In re Benson, 178 Okla. 299, 62 P.2d 962, was a case where a fireman became too warm while inspecting a building, then took off his coat and sat in an automobile discussing the inspection with his superior officer for some time after working hours; a few hours later a cold developed into pneumonia causing death. It was held that his widow was entitled to a pension under an Act providing benefits for death from injury "while in, and in consequence of the performance of his duty." The decision seems to be based on the ground that the cause of the illness was the fact that the fireman became too warm combined with the later removal of his coat; that he was in the actual performance of his duty when he became too warm. The case of Buckley v. Roche (Cal. App.), 290 P. 646, an application for a pension by a policeman's widow was tried on an agreed...