Creighan v. Firemen's Relief & Pension Fund Board

155 A.2d 844, 397 Pa. 419, 1959 Pa. LEXIS 472
CourtSupreme Court of Pennsylvania
DecidedNovember 24, 1959
DocketAppeal, No 11
StatusPublished
Cited by29 cases

This text of 155 A.2d 844 (Creighan v. Firemen's Relief & Pension Fund Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Creighan v. Firemen's Relief & Pension Fund Board, 155 A.2d 844, 397 Pa. 419, 1959 Pa. LEXIS 472 (Pa. 1959).

Opinion

Opinion by

Mr. Justice Musmanno,

James Creighan, fireman, has brought an action of mandamus against the Firemen’s Relief and Pension Fund Board of the City of Pittsburgh for pension benefits under the Firemen’s Relief and Pension Fund Law of May 25, 1933, P. L. 1050, as amended (53 P.S. §23601 et seq.) hereinafter referred to for brevity’s sake as the Pension Law.

Creighan became- a fireman in the City of Pittsburgh on May 11, 1937, and performed the duties of a hoseman until February 22, 1949, when tuberculosis of the respiratory system forced him into a sanitarium (Leech Farm) where he remained until April, 1950. From that date until October 20, 1951, he was an outpatient, but his condition worsened and he re-entered [421]*421the sanitarium, this time remaining until September, 1953 when the doctors certified him for light duty which, however, was never assigned to him. On June 21, 1954, he was certified to be permanently and totally incapacitated.

In the meantime (November, 1952) he had brought an action against the City of Pittsburgh under the Heart and Lung Act.1 At the trial, in that action, the jury made specific findings of fact, namely, Creighan was suffering from tuberculosis of the respiratory system which was contracted or incurred after four years of continuous service as a fireman, that it was caused by extreme overexertion in times of stress or danger and by exposure to heat, fumes, or gases arising directly out of his duties as a fireman, and that he was totally and permanently disabled as of June 21, 1954. On appeal to this court (Creighan v. City of Pittsburgh, 389 Pa. 569), we sustained those findings and affirmed a judgment of $13,648.29 for the period of his temporary incapacity. We allowed no amount for permanent incapacitation because we concluded that the provisions of the Heart and Lung Act were restricted to temporary disability.

In February, 1958, Creighan filed an action in mandamus to compel the Firemen’s Relief and Pension Fund Board (hereinafter to be referred to as the Board) to award him a pension under the Pension Law, which authorizes pension payments when it is established that the applicant “while a member of the fund, was injured in the line of duty and disabled through such injury, that such disability continues, and that the applicant is no longer entitled to payments from the city under the provisions of the Workmen’s Compensation Act, and its amendments.”

[422]*422The Court of Common Pleas of Allegheny County awarded Creighan the claimed-for pension and the Board has appealed. The only question raised in the appeal is whether the claimant’s admitted disablement (tuberculosis of the respiratory system) is an injury within the meaning of the Pension Law. The Board contends that in order to prove his claim, the plaintiff must “point to a particular or definite occurrence, event or incident which brought on the disease” and that since the plaintiff’s malady is “one of a latent and insidious nature which progresses gradually and mani-. fests itself over a long period of time,” it cannot be designated an injury.

The Board thus attempts to limit the scope of the word injury and to force it within a lexicographical strait jacket which is not apparent in a reading of the Pension Law. The Board would restrict the meaning of injury to the limitations placed upon the word in an entirely different law, the Workmen’s Compensation Act, which specifies that “injury” and “personal injury” “as used in this act, shall be construed to mean only violence to the physical structure of the body, and such disease or infection as naturally results therefrom.”

But the Pension Law here involved contains no such restriction, and, since it postdates The Workmen’s Compensation Act, we must assume that the Legislature purposely avoided repeating in the Pension Law the legislative definition of injury which appears in The Workmen’s Compensation Act. Thus, the cases2 cited by the Board which emphasize the term “violence to the physical structure of the body”, do not and cannot apply to the Pension Law.

[423]*423In this posture of affairs, we are compelled to give to the word injury its common, non-technical meaning. What is that meaning? Webster’s International Dictionary defines injury as: “Damage or hurt done to or suffered by a person or thing; detriment to, or violation of, person, character, feelings, rights, property, or interests, or the value of a thing . . . Synonyms: Detriment, hurt, loss, impairment; prejudice, evil, ill, injustice, wrong . . . Injury is the general term for hurt of any sort, whether suffered by a person (often in the sense of a wrong) or a thing.”

It will be noted that nowhere in the definition is violence a preliminary sine qua non to injury. Thus, according to Webster, a not inconsequential authority on words, a breakdown of tissue in the lungs may (under certain circumstances) be as much an injury as a laceration of flesh and muscle or even a fracture of bone, especially if the drastic change in the fabric of the lungs is the result of mishap or misadventure. Nor does the physical disablement need to occur simultaneously with the physical phenomenon which is its cause, in order for the disablement to be denominated an injury. For instance, a fireman who rubs against a poisonous chemical, whose injuring properties do not become manifest on the fireman’s body until days, or even weeks, following the contact, is no less injured in the performance of his duty than the fireman who falls from a ladder. Nor should it be doubted that a fireman who contracts ivy poisoning while climbing the side of a building in performing rescue work is injured just as surely as if he had been struck by cascading debris.3

[424]*424But even according to tlie Board’s blueprint of injury, Creighton may still not be denied pension payments. The inhalation of smoke and flame can damage the lungs with as much traumatic violence as a knife wound. In Roth v. Locust Mt. St. Hosp., 130 Pa. Superior Ct. 1, the Superior Court awarded workmen’s compensation in a case where the decedent (a surgeon) died of pneumonia following wet and cold exposure while performing an operation in an unusually cold dispensary. In Nelson v. Greenville, 181 Pa. Superior Ct. 488, the decedent fireman, emerging from a fire, coughing from the effect of smoke, “complained of pain in his arms and chest, and collapsed.” The Superior Court held that “this testimony was clearly sufficient to establish an injury resulting from unusual exertion in the course of employment.” The fact that the injury in the instant case made itself manifest at a later period than the one involved in the cited cases does not alter the principle involved.

Calling tuberculosis a disease does not take it out of the realm of pulmonary violence. It is often said of persons who die from coronary seizures that they have succumbed to “heart disease”.

The Board argues that because the original Heart and Lung Act of 1935 was amended in 1951 (P. L. 1473) to include “the diseases of the heart and tuberculosis of the respiratory system,” no benefits for tuberculosis are payable under the Pension Law unless it is similarly amended. But this is fallacious reasoning on several points. In the first place, the language of the original Heart and Lung Act differs considerably from that contained in the Pension Law.

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155 A.2d 844, 397 Pa. 419, 1959 Pa. LEXIS 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creighan-v-firemens-relief-pension-fund-board-pa-1959.