Marshall v. City of Oakland

WARD, J.

This is an appeal from the judgment denying the peremptory writ of mandate set forth in the petition, the basis of which was that the husband of petitioner, William Marshall, who was a member of the Police Department of the city of Oakland, “died as a result of an injury and a disability incurred in the performance of his duties.”

Following the death of William Marshall petitioner filed an application, before respondents as trustees of the police relief and pension fund, that she be awarded a pension pursuant to section 96(1) (a) of the municipal charter. Petitioner’s application was denied by the trustees and the mandate proceedings followed.

Section 96(1) (a) of the charter provides for a pension to a widow, as long as she shall remain unmarried, equal to one-half of the salary attached to the rank held by the decedent at the time of his death if he died as the result of an injury, or disability incurred while in the performance of his duty.

Irrespective of the manner in which appellant seeks to present the question on. appeal the real issue is whether appellant has sustained the burden of proof that her husband died as a result of injury sustained in the performance of his duty as a member of the police department. Primarily this is a factual case. In the superior court the following evidence was admitted in the place of testimony of lay witnesses: ‘ ‘ Transcripts of the testimony which has heretofore been heard in connection first with an application before the Industrial Accident Commission . . . for an award for compensation for the death of her husband; a deposition of the widow taken during this proceeding by the City Attorney’s office; and the

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testimony produced before the Board of Trustees by the applicant and by the City Attorney’s office, together with a report made by a physician concerning an examination made of the deceased, William Marshall, in February of 1941.”

An “overall summary” of the evidence was introduced without objection before the superior court. In part it sets forth: “Marshall had been appointed to the Oakland Police Department on August 2nd, 1917, as a patrolman and served continuously thereafter as a member of said department until his death. He was appointed an Inspector of Police on July 1st, 1936, and was assigned to the Bobbery Detail at the time of his death. Marshall was born August 21, 1890, and was 53 years and 7 months of age when he died. The immediate circumstances of his death were as follows: He had arrived home from work at approximately 5 P. M. on March 22nd, 1944, removed his coat and shirt and put on a sweater over his undershirt. He helped feed his youngest child, read the paper for a short while in the living room, ate only a dish of peaches, assisted his wife in cleaning and washing the dishes, and then went into the back yard of his home, picked up a garden hose preparatory to putting some water in the fish pond, when he suddenly slumped to the ground, gasping for breath for a short while, and then died before medical aid could be summoned. ... No autopsy was performed. The death certificate was signed by Doctor Bobert G-. Libby, M.D., on March 23, 1944. Doctor Libby certified the immediate cause of death to be coronary occlusion, duration one-half hour, due to hypertensive heart disease, duration three years, and chronic myocarditis, duration three years. Doctor Libby had examined Marshall in his office in February, 1941, and had made the following report: ‘Mr. Marshall first reported to this office in February of 1941, complaining of severe dyspnea, upon exertion, fatigue and occasional chest pains. The pertinent findings of my physical examination and x-ray, fluoroscopy of the heart and lungs, revealed an overweight male, approximately 50 years of age, with bad teeth and pyorrhea of the gums. The blood pressure was 190 eystolic over 110 diastolic. The heart was enlarged to the left. The radial blood vessels were moderately sclerosed. I made the following diagnosis: 1. Hypertensive heart disease. 2. Moderate arteriosclerosis. 3. Left ventricular hypertrophy. 4. Coronary artery insufficiency. The patient was given a reducing diet and dental care was advised. He was cautioned to restrict his activities. Digitalis and amino-phyllin with