Le Strange v. City of Berkeley

DRAPER, P. J.

Appellant is the widow of a former fire chief of defendant city. Upon his death, she applied for a pension. If her husband died “as a direct result of the actual performance of his duty,” the applicable ordinance entitles her to a pension of half of his salary. Otherwise, his years of service entitle her to a pension of one-third of his salary. The lesser amount was awarded by the Fire Pension Board. Plaintiff brought this action for a determination of her rights. The trial court found that she had not been afforded due process by the board, and directed reconsideration by that body. On appeal the judgment was reversed and the case remanded with directions to determine whether the findings of the pension board are supported by substan

[277]

tial evidence

(Le Strange

v.

City of Berkeley,

210 Cal.App.2d 313 [26 Cal.Rptr. 550]). The trial court reviewed the record and found that it contained substantial evidence supporting the finding that only the lower pension was proper. Judgment was for defendants. Plaintiff appeals.

Decision upon the earlier appeal established that the pension board acts in a quasi-judicial capacity, and thus the only question is whether the evidence before that board supports its finding.

Chief Le Strange died November 2, 1956. It is conceded that the cause of death was a staphylococcal infection. The medical witnesses agreed that the infection was highly resistant to antibiotics, and thus probably had its source in a hospital environment. The question is what afforded the means of entry of the germs into his system. Chief Le Strange was hospitalized March 26 and 27 for prostate treatment and examination. There is evidence that he received a cut on the back of his hand while fighting a fire May 21, 1956. He reentered the hospital June 25 for a prostatectomy and remained until June 30. No doctor saw or treated the cut hand, but there is lay testimony that the cut festered and remained in that condition in early August. Late in August, pain developed in the upper forearm, and the elbow was surgically explored September 3. He returned to the hospital for treatment of this infection October 30, and died there November 2.