Opinion
Rehearing Granted May 21, 1931.
In Bank.
Action by Mary Buckley for writ of mandate to compel award of a pension against Theodore J. Roche and others, as members of, and constituting, the Board of Trustees of the Police Relief and Pension Fund of the City and County of San Francisco. Judgment for plaintiff, and defendants appeal.
Reversed.
Superseding 290 P. 646.
Appeal from Superior Court, City and County of San Francisco; Daniel C. Deasy, Judge.
COUNSEL
John J. O’Toole, City Atty., and Sylvain D. Leipsic, Asst. City Atty., both of San Francisco, for appellants.
William A. Kelly, of San Francisco, for respondent.
OPINION
PER CURIAM.
This is an appeal from a judgment of the superior court of the city and county of San Francisco granting a petition for a writ of mandate.
The parties have stipulated to all of the facts, which are substantially as follows: William Buckley became a member of the San Francisco police department on October 7, 1902. For a number of years prior to his death in 1925, he was afflicted with heart trouble, and was taken off active patrol duty and placed in the photograph gallery, a part of the identification bureau, located in the Hall of Justice. In November, 1924, he was operated on for a ruptured appendix and returned to duty some months later in a generally weakened physical condition, but principally affected by a ‘decompensated heart.’ On March 7, 1925, three days after his return, he ascended the spiral stairway from the city prison to the photograph gallery. Shortly thereafter he suffered a heart attack and died in a few hours.
His widow, the plaintiff herein, applied for a pension under the provisions of the San Francisco charter, article VIII, chapter X, section 4. The said charter provides that the board of police commissioners shall be trustees of the pension fund, and, upon the filing of a verified petition for a pension, they shall hold a hearing and determine whether the officer was killed in the performance of his duties. It is also provided that the petitioner may be represented by counsel. In 1917, the following provision was added to section 4: ‘The judgment of said commissioners respecting said application shall be final, unless in determining said application said commissioners commit a clear abuse of discretion.’
Pursuant to the above provisions of the charter, a hearing was had, at which plaintiff was represented by counsel, and a decision was rendered denying a pension on the ground that the deceased was not killed or injured in the performance of police duty within the meaning of the charter. This decision, which was in writing, states in part: ‘The ascension by Officer Buckley of the spiral stairway * * * which was the immediate cause of the spasm which resulted in his death, involved nothing but routine police service. Such act did not require the performance of any extraordinary duty or involve the rendition of police service which in a normal man would or might produce consequences resulting in physical injury or death. While climbing the stairs, no accident occurred to Officer Buckley which brought about or contributed to the affliction which was the immediate cause of his death.’
Following this decision, plaintiff sought a writ of mandate from the superior court to compel the granting of the pension, and from a judgment in her favor the defendants, members of the board, appeal.
Plaintiff recognizes the force of the charter provision which makes the decision of the board conclusive save where there has been an abuse of discretion, which provision is fully discussed in the case of Mogan v. Board of Police Commissioners, 100 Cal.App. 270, 279 P. 1080. It is urged, however, that where the undisputed facts lead to but one conclusion, a contrary conclusion necessarily involves an abuse of discretion. See Dufton v. Daniels, 190 Cal. 580, 213 P. 949. The sole ground upon which this latter principle is invoked is found in a portion of the statement of facts stipulated to by counsel for the parties, reading as follows: ‘While in said photograph gallery Buckley suffered a heart spasm from which, within a few hours he died. Said heart spasm resulted from the exertion incident to the stairway ascensions.’
We are unable to perceive in what manner this simple statement, part of a general narration of the circumstances of the death, can be considered as an admission by defendants of the whole of plaintiff’s case; and such is, in effect, plaintiff’s contention. The use of a stipulated statement of facts saves the time of all parties, and the practice should be encouraged by a reasonable construction thereof. Reasonably construed, the part of that statement relied upon by plaintiff, namely, that the heart spasm ‘resulted from the exertion incident to the stairway ascensions,’ means simply that after the exertion of climbing the stairs, the heart spasm took place; and it does not constitute an admission that such exertion was peculiar to the duties of the deceased. The board, considering the evidence, concluded that he was in such weakened condition that any normal exertion might have brought on the attack, and that it did not therefore arise out of the performance of police duty. Such a conclusion is perfectly consistent with the stipulation. Natural physical weakness was found to be the cause of his death, and it might have occurred and did occur in the course of ordinary activity.
The evidence before the board being sufficient to support its decision, and no abuse of discretion being shown, it follows that the decision is conclusive. The judgment of the superior court is therefore reversed.