Wight v. City of Long Beach

SHINN, P. J. The city of Long Beach and certain of its officers appeal from a judgment based upon findings of a jury upon special interrogatories. The action was in mandate to compel the city and its officers to grant a pension to petitioner, widow of a police officer of the city. The jury answered affirmatively the questions (1) whether Mr. Wight received any injury or contracted any sickness as a result of the discharge of his duties as a member of the police department, (2) whether he died as a result of such injury or sickness, and (3) whether his services as a member of the department so aggravated a preexisting injury or sickness, if any, as to accelerate such ailment and precipitate his death.

It is undisputed that the cause of death was disease of the heart from which Mr. Wright had suffered for a number of years. It is not questioned by appellants that there was substantial evidence that performance of the duties of his employment aggravated the ailment and precipitated his death. It is contended, however, that this is not sufficient to establish a right to a pension for the reason that Mr. Wight performed only the normal duties of his employment.

The principal ground of the appeal is stated as follows: ‘ ‘ The appellants contend that the performance of the ordinary and usual duties required of an employee do not constitute an injury, unless some hazard or somé unusual strain accelerates and precipitates the death of the employee.” They say further: “Work in and of itself does not constitute an industrial injury,” that death is not due to the discharge of duties of a member of the police department unless it results from overexertion or from unusual duties. All the extensive arguments are founded upon this erroneous theory. Appellants do not recognize the distinction between the right to compensation which is dependent upon proof of some accidental injury and the right to compensation for service connected aggravation and acceleration of illness. Subdivision 4 of section 187 of the Long Beach City Charter provides a pension for dependents of policemen whose death occurs (a) as a result of a service connected injury, or (b) as a result of a service connected illness. These provisions were considered in Wood v. Board of P. & F. Pension Commrs., 49 Cal.App.2d 52 [120 P.2d 898], and Gilman v. City of Long Beach, 111 Cal.App.2d 747 [245 P.2d 512], the latter case involving the pension of a fireman’s widow.

The arguments advanced by the appellants here are identical with those presented in the Gilman case, and the same authori[71]