Cooper v. Retirement Board

PETERS, P. J. Anita Cooper brought this action for a writ of mandate to compel the Retirement Board of San Francisco to pay her a pension identical in amount with that formerly paid to her husband, now deceased, who was a retired police officer. The Retirement Board fixed the pension at one-half the amount that had been paid the husband. The superior court refused to interfere with that determination. From the judgment of denial Anita Cooper appeals.

The city charter of San Francisco provides that if a police officer retired for disability dies as a result of a service-connected injury or illness, the surviving widow shall receive a pension in the same amount that had been paid her husband (§168.3), but if, after retirement for disability a former policeman shall die from a nonservice connected injury or illness, the widow shall receive a pension of one-half that paid her husband (§ 168.1.5).

The superior court made two basic findings. 1. ‘'The finding of the Retirement Board that James J. Cooper did not die as a result of an injury received in, or illness caused by the performance of his duty, is sustained by the evidence.” And 2. “The findings of the Retirement Board that petitioner did not sustain her burden of proving that James J. Cooper died as a res3ilt of injury received in or illness caused by the performance of his duty, is sustained by the evidence.”

It is appellant’s contention that such findings are totally unsupported and that the evidence compels, as a matter of law, a finding that death was caused by a service-connected illness. Of course, on such an appeal, it is appellant’s burden to show that the evidence and the reasonable inferences therefrom, do not support the findings of the board. (Marshall v. City of Oakland, 92 Cal.App.2d 593 [207 P.2d 882]; Loveland v. City of Oakland, 80 Cal.App.2d 31 [180 P.2d 937].) The respondent enjoys in its favor all inferences arising from conflicts in the evidence, even though [806]an equally reasonable adverse inference is possible. (Morgan v. City of Los Angeles, 91 Cal.App.2d 134 [203 P.2d 375].) In other words, the appellant must not only show that a finding in her favor would have been supported, but must demonstrate that such finding is compelled, as a matter of law.

Tested by these standards, appellant has failed to sustain her burden. James Cooper, a policeman, married appellant in 1933. In April of 1944, at the age of 45,"he was retired. He was then found to be suffering from “chronic endocarditis with aortic insufficiency” and, in general, he .then had ‘ chronic myocarditis, with a conduction system lesion producing a complete heart block.” The retirement board found that this disability was service-connected and granted him a monthly pension of $170. After retirement, Cooper moved to Marin County, and accepted employment in San Francisco as a messenger and investigator for an express company. His attending physician testified that Cooper’s heart was in such condition that he was in danger of a sudden attack at any time, and that over exertion, or too much excitement, might bring on such an attack. The doctor opined, however, that the express company work could be carried on without danger, and had so informed Cooper.