Tripp v. Board of Fire & Police Pension Commissioners

KOFORD, P. J.

Appellant prosecuted this proceeding in the superior court for a writ of

mandamus

compelling respondents to allow and pay appellant a pension as a disabled fireman of the city of Fresno. The petition alleged that appellant had been a regular member of the fire department from 1918 to 1927; that under the terms of the city charter and ordinance passed in pursuance of said charter appellant was entitled to a pension because his duties as a fireman exposed him to smallpox in the neighborhood of the firehouse to which he was assigned in 1924, and exposed him to influenza in 1925, and again in 1927, both of which diseases he contracted and by reason of having contracted said diseases appellant was rendered physically unable to discharge his duties as fireman. At the trial in the superior court appellant also testified that while fighting a fire in 1926 he • injured his foot, which resulted in a serious infection.

[722]

Upon objection being made that this was outside the pleadings, appellant’s counsel stated:

“Hr. G-allaher: I ask at this time to amend by inserting in connection with the paragraph that recites infection from smallpox and influenza, also an injury received to the left foot which resulted in an infection.” The court stated: “Very well, you may amend.” No actual written amendment was made, filed, or presented.

The superior court made its findings and judgment in favor of respondents, specifically finding following the language of the petition that the influenza and smallpox attacks which appellant had suffered were not contracted by him in the performance of his duties as fireman. The court also found in finding No. VI:

“The court further finds that plaintiff’s physical disability was not caused by reason of any bodily injury received in, or by any sickness caused by, or the result of any bodily injury received in, or the result of any sickness caused by, the discharge of the duties of plaintiff as a member of the Fire Department of the City of Fresno.”

Appellant claims the court erred in not making a finding concerning the foot infection above referred to. We see no merit in this contention. If it be conceded that the court was obliged to make a finding on an amendment that was never actually prepared and filed, still the court could not be expected to be more specific than the amendment itself. Finding No. VI, however, is broad enough to cover the matter if incorporated in the petition by amendment and finds upon the material and ultimate facts thus alleged.