Badger v. Homan

BARNARD, P. J. This was an application for a writ of mandate directing the defendants to place the petitioner upon the pension roll of the city of Fresno and to pay to him a pension in accordance with an ordinance of that city. After answer filed a motion for judgment on the pleadings was granted and a judgment entered directing the issuance of a peremptory writ, from which judgment the defendants have appealed.

The allegations of the petition disclose the following facts. The petitioner was employed as a member of the Fresno City Fire Department from June 2, 1922, to January 18, [237193]9, when he was dismissed. On February 5, 1937, while engaged in his duties, he stepped in a depression causing him to fall, resulting in a severe pain in his low back. He returned to work on March 8, 1937, although he still continued to suffer pain and discomfort. On April 21, 1937, his back again caused him to lay off from work. On May 5, 1937, he was ordered to and did return to work and continued although suffering pain and discomfort, until May 1, 1938, when his back again gave way while he was lifting a load of 60 to 90 pounds and he stopped work. He returned to work on October 1, 1938, and worked for one month, when he left his work because of the pain from his back injury. During all of these absences from work he received compensation and medical care from the State Compensation Insurance Fund, the city’s insurance carrier.

On December 21, 1938, while he was receiving such compensation and while he was on a trip to San Francisco, where he had been sent by the insurance carrier for medical and surgical examination, he became intoxicated and received severe and extensive injuries in a collision between an automobile in which he was riding and another automobile. On January 18, 1939, he was served with notice of dismissal from the department, four charges being set forth. After a hearing before the civil service board his dismissal was approved and sustained on March 7, 1939, it being held that two of the charges, including one of becoming intoxicated in violation of the rules of the department, were sustained by the evidence.

On March 8, 1940, the Industrial Accident Commission awarded him a fixed sum as compensation for a permanent partial disability, the award being entered against the insurance carrier, and based upon the approval of a compromise and upon stipulated findings. Among other things, it was thus found that the petitioner had suffered injuries to his back, some of which arose out of and in the course of his employment and others of which occurred under circumstances not connected with the performance of any duty in the course of his employment; that he also had a condition of spine which preexisted any of these injuries; that as a result of these injuries and the preexisting condition he had a permanent partial disability which was fixed at 75% per