Ellenberger v. City of Oakland

WARD, J. This appeal is taken from an order denying appellant’s petition for a writ of mandate to compel the Board of Trustees of the Police Relief and Pension Fund of the City of Oakland to grant her a pension amounting to one-[339]half of the salary of her deceased husband as a policeman of the municipality.

The amended petition alleges that prior to January 6, 1932 George Ellenberger was in perfect health; that on that date “while in performance of his duty as such policeman, said George Ellenberger, while stepping on the running board, slipped between the patrol wagon and another car, twisted his neck and struck his head against the side of the patrol wagon; that immediately thereafter said George Ellenberger felt a severe pain in the neck and later nausea and dizziness and he lost consciousness; that he suffered a cerebral hemmorrhage, injury to muscles and nerves of the head and neck, cerebral lesion and shock;’’ that subsequent to the accident Ellenberger showed a steady deterioration in health which, as alleged, was traceable to the injuries suffered in 1932.

There is no dispute that a stroke in 1939 caused death, or that there was a decline in Ellenberger’s health from 1932 to 1939; also there is evidence that he suffered a fall in 1932 during the performance of his police duties, but whether this fall brought about a stroke or whether a stroke caused the fall, or whether the first attack contributed to the second, are the particular questions which were presented to the trial court.

Appellant presents the first contention in the following form: “There is no substantial evidence supporting the court’s findings that George Ellenberger did not fall on January 6, 1932, and strike his head while in the performance of his duties as policeman causing injuries directly resulting in his death on July 28, 1939.’’ It is immaterial whether there is substantial evidence to support such a finding, though the evidence indicates justification for such a conclusion. The rule is that the burden of proof is upon the party presenting the affirmative of the issue. (Code Civ. Proc., sec. 1981; Montgomery v. Board of Admin., 34 Cal.App.2d 514 [93 P.2d 1046, 94 P.2d 610].) If there is no evidence upon an an issue, the finding should be against the party who has the burden of proof. This case does not even present a situation where if a prima facie case is presented, the burden of proof shifts to the opposing litigant. There is an entire absence of evidence as the record now stands, showing a causative connection between the occurrence of 1932 and the demise of Ellenberger in 1939; a conclusion to that effect must rest