Smith v. Bd. of Admin. Retirement System

O’DONNELL, J. pro tem.

*

This is an appeal from a judgment denying a writ of mandate against the Board of Administration of the State Employees’ Retirement System (hereinafter called the Board).

■ Frank T. Smith was employed by the California Highway Patrol as a traffic officer from March 1, 1942, to October 23, 1953. On the latter date, he died of a heart attack. He left surviving him his wife Paula, the appellant herein, and a minor child of a previous marriage, Patricia, the respondent herein. Decedent and appellant had married on August 31, 1953, less than two months prior to his death.

It appears that decedent’s duties as a traffic officer involved considerable physical exertion. For instance, for several years he was engaged in cheeking overloaded trucks. This required him to lift in and out of his car portable scales weighing 105 pounds. Also, from time to time he was called upon to work on serious accidents. Again, he was required on several occasions to drag rivers for the bodies of drowned persons which involved considerable physical effort. On August 30, 1953, the day before his marriage to appellant, he was engaged in the exceptionally strenuous task of lifting the victims of an automobile accident up a very steep incline. This activity left decedent exhausted.

After his marriage to appellant, decedent’s activities were generally routine. Three weeks before his death, he took a

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vacation, during which he did nothing of a strenuous nature. Three days before his death, he complained of feeling ill. His doctor was summoned. He confined decedent to his bed where he remained until his death. Decedent was 35 years of age at the time of his death.

Appellant filed an application with the Board for special death benefits. Respondent filed a similar application. Rights to death benefits are governed by the State Employees’ Retirement Law (Gov. Code, §§20000-21500). Section 21363 provides for the payment of a special death benefit “if the deceased was a patrol, . . . member, if his death was industrial, as determined by the Industrial Accident Commission, using the same procedure as in workmen’s compensation hearings, and if there is a wife or child who qualifies under subdivision (b), Section 21364. Section 3212.5 of the Labor Code provides that in the case of a member of the State Highway Patrol the term “injury” as used in the Workmen’s Compensation Act (Lab. Code, div. 4) includes “heart trouble . . . which develops or manifests itself during a period while such member ... is in the service of the . . . State Highway Patrol ...” The section further provides that where such member has served in that capacity for at least five years a disputable presumption arises that such “heart trouble” arose out of and in the course of his employment.