State ex rel. McManus v. Board of Trustees of the Policemen's Pension Fund

119 N.W. 806, 138 Wis. 133, 1909 Wisc. LEXIS 50

• Court: Wisconsin Supreme Court
• Decided: February 16, 1909
• Status: Published

Opinions

Dodge, J.

Brushing aside various obstacles of practice or procedure which are urged by the interveners to maintenance of this action as between the original parties, we proceed at once to a consideration of the real question involving tire merits of the action; that is, whether pneumonia suffered and contracted in tbe line of, and by reason of, the active performance of duties assigned to a policeman is such an injury as entitles his widow to a pension if death results therefrom. The answer must be found by construction of secs. 8 and 9, ch. 397, Laws of 1903. That act, after making provision for the creation of a fund, partly by deduction from policemen’s salaries and partly from other sources, and creating a board of trustees for the administration thereof, provides, in sees. 8 and 9:

“Sec. 8. If any member of the police department while engaged in the performance of his active duty as such policeman be injured, and found upon an examination by a medical officer ordered by said board to be physically or mentally permanently disabled by reason of such injury so as to render necessary his retirement from service in such department, such board shall retire such disabled members from service; provided no such retirement on account of disability shall occur unless the member has contracted such disability within the hours of each day or night when he is required to be on active duty by the rules of the department or while he is engaged in the performance of ‘emergency duty’ during his regular ‘off hours.’ . . .

“Sec. 9. If any member of such police department shall while in the performance of his duty be killed or die as the result of an injury received while in the line of his duty, as described in the preceding section, ...” his widow and minor children, if any, shall receive a pension.

It will be observed that the right to retirement under see. 8 and the right to a pension in case of death under sec. 9 are dependent on the condition under sec. 8 that the policeman “be injured,” and under sec. 9 that he die as the result of “an injury;” and the question raised by relator is whether the contracting of disease is being injured and is the suffering of an injury within the meaning of this act. Sec. 9, by the italicised words, evidently refers back to sec. 8 for whatever of definition of “injury” may there be found. The word “injury,” in ordinary modern usage, is one of very broad designation. In. tbe strict sense of tbe law, especially tbe common law, its meaning corresponded witb its etymology. It meant a wrongful invasion of legal rights and was not concerned witb tbe hurt or damage resulting from sucb invasion. It is thus used in tbe familiar law pbrase damnum absque injuria. In common parlance, however, it is used broadly enough to cover both the damwwm and tbe mjuria of tbe common law, and indeed is more commonly used to express tbe idea belonging to tbe former word, namely, tbe effect on tbe recipient in tbe way of hurt or damage, and we cannot doubt that at this day its common and approved usage extends to and includes any hurtful or damaging effect which may be suffered by any one. Hence, unless some reason to tbe contrary is presented, it should be so understood in these statutes. Subd. 1, sec. 4911, Stats. (1898). Tbe respondent contends that, nevertheless, tbe word should be limited to tbe results of external violence. By itself tbe word “injury” or “injure” has no more application to tbe result of violence than to the result of any other injurious influence. A disease resulting from negligence of a physician in failing to give treatment is just as much an injury in common pbrase as if it resulted from affirmative maltreatment or external violence. Therefore there is nothing inherent in the word to limit tbe injuries to which this statute applies to those from physical or external violence. If one be tortiously exposed to extreme cold be may suffer tbe freezing and consequent loss of a limb, or tbe chill of an internal membrane or tissue and resultant congestion or disease. No reason is apparent why either is more or less an injury than tbe other. In examining sec. 8 we find some suggestions in tbe context of the mental conception of tbe legislators in tbe use of tbe word “injured.” In one pbrase it is used in context and collocation witb physical or mental permanent disability, and in another tbe legislators speak of sucb disability as one to be “contracted.” These both point strongly to a conception of something other than, external violence, which would ordinarily be said to be suffered or inflicted rather than contracted. The purpose of the act, too, would seem to require the broader meaning of the word. Why is not the policeman who, in the faithful performance of his duty, exposes himself to a danger like smallpox or diphtheria infection, as worthy of provision for his disability or for his widow as one who •exposes himself to the knife or the club of a lawbreaker? "Why is it not as promotive of the efficiency of the force for the protection of public welfare that he be encouraged in the one case as in the other? These considerations, and many others like them which might be mentioned, constrain us to the conclusion that the word “injury” is used in this statute in a sense broad enough to include the contracting of a disr ease, provided, of course, that such injury is suffered in the course of and by reason of the performance of the distinctive duties imposed upon the sufferer as a policeman (Hutchens v. Covert, 39 Ind. App. 382, 78 N. E. 1061), a fact which we •deem to have been ascertained and decided upon sufficient showing by the board of trustees, although their record is not as full as it might be in its disclosure of the class of evidence which was submitted for their consideration. A provision in sec. 9 for a pension upon death for any cause after fifteen years’ service marks a contrast or antithesis to this last requirement of causal connection between the active service and the injury, and does not signify a limited meaning in the word “injury” caused by the service.

In reaching the conclusion that disease is included we have not overlooked the fact, urged by relator, that an earlier statute (ch. 265, Laws of 1899, of which the law of 1903 was in effect an amendment:) contained in sec. 9 both expressions, an injury received in the line of his duty “or any disease contracted by reason of his occupation,” and that the latter words were eliminated in the law of 1903, having substituted therefor the words “as described in the preceding section.” Notwithstanding this change, which doubtless is of some-significance, it still seems to us that the injury described and provided for in see. 8 was intended to include the inoculation with or contraction of disease, and that the new expression in sec. 9 was inserted in the act of 1903 for the purpose of perpetuating that meaning for the word “injury” in the latter-section.

Our view as to the legislative intent results in the conclusion that it was within the power of the board of trastees to-award the pension in question if they found that the pneumonia from which Sullivan died was contracted in the actual performance of his duties and caused thereby. Their resolution of that question of fact from the evidence before them was within their jurisdiction and cannot be reversed upon certiorari. State ex rel. Manitowoc v. County Clerk, 59 Wis. 15, 20, 16 N. W. 617; State ex rel. Cook v. Houser, 122 Wis. 534, 561, 100 N. W. 964.

By the Court. — Judgment reversed, and cause remanded with directions to affirm the action of the board of trustees in-granting pension to appellants.