Kinney v. Sacramento City Employees' Retirement System

[780]

PEEK, J.

This is an appeal by respondent Retirement Board from a judgment in favor of petitioner in a mandamus proceeding to determine the right of her deceased husband, formerly a member of the fire department of the city of Sacramento, to a disability pension allowance from the time of his retirement to the date of his death from a heart attack.

The pertinent portions of the charter of said city establishing a retirement system with regard to the question herein presented, provide that any city employee, a member of said system, who “shall become disabled by reason of any bodily injury received in the performance of his duty” shall be entitled to a certain percentage of the average monthly salary paid him during the year prior to his retirement.

It appears that petitioner’s intestate, Paul D. Kinney, had served as an engineer in the city fire department from 1932 to April 22, 1944, when upon the advice of physicians that it would be unwise for him to continue in his work on account of heart trouble, he retired from the service.

On August 25, 1944, he filed an application with the respondent board for a retirement allowance based on disability received in the performance of his duty. On October 25, 1944, and February 14, 1945, hearings were held before the Retirement Board as provided in said charter, both the applicant and the board being represented by counsel. The evidence on behalf of the applicant, in addition to his own testimony, consisted principally of the testimony of three fellow members of the fire department that on three occasions when applicant was called upon to exert unusual physical effort in the course of his duties he appeared to be more or less overcome thereby, and the written reports of four physicians (admitted without objection) who had personally examined applicant expressing the opinion that he was suffering from heart trouble either caused or aggravated by the performance of the duties of his employment. Two physicians were called for the board. One, Dr. Murphy who admittedly was not a “heart man,” testified that he advised applicant to consult a heart specialist, the other, Dr. Giere, testified that undoubtedly the regular duties of Kinney, as well as the special ones which called for greater physical exertion, had a definite tendency to aggravate the chronic heart disease from which he was suffering. This testimony corroborated in part at least the written report of this witness, which was one of the above mentioned reports introduced on behalf of the applicant.