Review of 1942 Higher Court Cases Involving Municipal Firemen

Review of 1942 Higher Court Cases Involving Municipal Firemen

DURING 1942 many municipal firemen sustained injuries as a result of ordinary risks, and also resulting from defective floors, poorly constructed chairs, poorly lighted stairways, steps, and the like. Whether or not compensation is collectable depends upon the circumstances of the injury. In other recent higher court cases peculiar points of pension laws were before the courts for decisions.

Therefore, the purpose of this article is a review of 1942 higher court cases which reveal certain modern methods of deciding legal controversies involving municipal firemen. First, it is important to know that the universal law is that all firemen are legally obligated to exercise ordinary good judgment and care in view of protecting themselves against injuries. In other words, to avoid risks of disallowance of injury claims all firemen should be able to prove that they used the same degree of care as would have been exercised by other ordinarily prudent and intelligent firemen and under the identical circumstances. Of course, this rule of law is applicable only to suits for damages and not to compensation laws.

The modern courts consistently hold that when the literal interpretation of the Workmen’s Compensation Law involves any absurdity, contradiction, injustice, or extreme hardship, the courts may deviate from the literal moaning of the words. In other words, the court may interpret the law in accordance with what the testimony indicates was the intention and meaning of the law making body. Therefore, the real intention of the law makers will in all cases prevail over the literal sense.

For example, in Kellerman v. City of St. Paul. 1 N.W. (2d) 378, reported January, 1942, it was shown that the Workmen’s Compensation Act of Minnesota provides that disability resulting from an occupational disease is not compensable unless the disease is contracted “within the twelve months previous to the date of disablement”.

One morning a fireman responded to a call and assisted other members of the department in extinguishing the fire and afterward cleaning up the basement of the premises. While cleaning out a drain he felt a severe pain in his chest. An ambiance was called, and he was taken to a hospital, where he died a few minutes after his arrival. His widow filed a claim in behalf of herself and two minor children alleging that the fireman contracted coronary sclerosis while on active duty and died from the effects of the disease. It was denied that the condition causing the fireman’s death was in any way related to his duties as a fireman. Also liability was denied on the ground that the disease which caused the fireman’s death was not contracted within twelve months of disablement, as required by the above mentioned state law.

It is interesting to observe that the higher court held in favor of the fireman’s dependants, and said:

“The Compensation Act is a remedial statute and must be liberally construed to effectuate its purpose. Although it is true that if the meaning of a statute is plain there is ordinarily no room for construction. It is equally true that the legislature should not be taken to intend absurd or contradictory consequences. . . . The general nature of coronary sclerosis must be presumed to have been known to the legislature.”

Another State Law Broadly Construed

In construing statutes or ordinances the ascertainment of legislative intent is the aim. The construction to be adopted and used must be reasonable. Therefore, where questions of government arise the construction will not be along technical fines but rather upon broad and practical considerations.

For example, in Evans v. City of St. Paul, 2 N.W. (2nd) 35. reported Febrtiary, 1942, it was shown that a city charter provided that the “case of disability through * * * sickness * * * in case of firemen, such firemen shall, notwithstanding such sickness * * * receive his salary, less the amount paid a substitute, if any substitute is employed for a period not exceeding 12 months.”

The fireman sued to recover “back pay” amounting to $1,389, the difference between $1,782.50 which he would have earned if drawing full pay, less $392.55, the amount received by him after monthly deductions from his salary for substiutes.

The legal question arose whether the disabled fireman thus “laid off” could recover from the city full wages if only “temporary” firemen were put into his place. The substitutes really constituted a reserve force to be placed wherever the fire chief deemed their presence needed. In holding against the fireman, the court said:

“That plaintiff rendered no service during the times for which he now seeks recovery is conceded. If instead of a “substitute” plaintiff’s work had been done by a “temoprary,” “provisional,” or “emergency” employe, would his claim to “back pay” be tenable? Of what importance, then, is the mere name given to the one who took his place? We should look to the substance rather than to the label, since ascertainment of the legislative intent is the aim, and the construction to be adopted and used must be reasonable-such as the chosen language will reasonably bear. Questions involving government must not be determined along technical lines, but rather upon “broad and practical considerations.”

According to a decision rendered in May, 1942, by a Minnesota higher court, the owner or occupant of a building owes no duty to keep it in a reasonably safe condition for members of a public fire department who might, in the exercise of their duties, have occasion to enter the building.

Injury in Buildings

For example, in Nulcrone v. City of St. Paul, 4 N.W. (2d) 97, reported June, 1942, it was disclosed that a captain in the Bureau of Fire Prevention, and a long-time member of the St. Paul fire department, was injured as he was going down an inside back stairway leading from the main floor of a store to the basement. He had been directed to inspect the premises as fire inspector pursuant to the requirements of a city ordinance. The stairway was defective as one of the trends, about midway between the top and bottom, was dangerous. The captain stumbled and fell, receiving serious injuries. He sued the property owner for damages. The higher court refused to allow damages, and said:

“As to policemen and firemen, by the great weight of authority, the general rule is that, absent statute or ordinance, one who comes upon premises in the discharge of his duty, but without an express or implied invitation to enter, is a licensee to whom the owner or occupant owes no duty except to refrain from injuring him wilfully or wantonly and to exercise ordinary care to avoid imperiling him by any active conduct.”

Review of 1942 Pension Cases

Few higher courts have granted pensions to firemen disabled while off dirty. However, a recent higher court granted a pension under these circumstances.

For instance, in Burns v. Amrine, 131 P. (2d) 884, reported December, 1942, it was shown that a fireman had served continuously for 17 years and approximately 5 months before his retirement because of permanent disability after he was more than 50 years of age. He had paid membership fees to the Firemen’s Pension Fund since it was organized. His disability was not connected with his employment as a fireman. However, the higher court granted him a pension, and said:

“Can the board of trustees be compelled to grant and pay the pension in this particular case? Having concluded, as a matter of law, that service-connected disability is not made a pre-requisite to relief by the particular provision of the statute now under scrutiny, it follows the writ was properly allowed.”

In Burns v. Police and Fire Pension Commission of Orange, 27 A. (2d) 11, reported August, 1942, it was shown that a state statute provides for pensions of members of the fire department who have paid into the fund the full amount of his annual assissment and continues so to do after his retirement.

The higher court held that the deduction for pension purposes of a retired officer was to be computed on the basis of his active yearly salary at time of his retirement, and not on the amount of pension being paid to him in retirement.

However, in Burns v. Police and Fire Pension Commission of Orange, 29 Atl. (2d) 848, reported January, 1943, the higher court reversed this decision and held that the deduction for pension purposes of the retired officer should be four per cent of the amount of pension paid to him in retirement and not four percent of the salary before retirement.

In Wagner v. Holmes. 5 NAY. (2d) 513, reported October, 1942, the higher court held that a state law providing for the establishment of a system of pensions for members of fire departments and which prescribes the manner of adoption as “provided by law for amending charters,” required only a majority vote for passage when that was all that was required for adoption of charter amendments.

In City of Fort Worth v. Morrison, 164 S.W. (2d) 771, reported October, 1942, the higher court held that a city by simply failing or neglecting to pass an ordinance or resolution, in the manner provided for by the city’s charter, can not defeat the right of any fireman to a pension who was actually hired by and who became a part of the Fire Department of such city, regardless of the manner in which such department was created by the city.

In State Kirby v. Board of Fire Com’rs of city of Hartford, 29 Atl. (2d) 452, reported November, 1942, the higher court held that although a regular member of a municipal fire department was suspended because criminal charges had been preferred aginst him, he was still a “member of the department” and having been a member for more than 25 years and having paid all assessments levied against him for the firemen’s relief fund, he was eligible for retirement.

In Burdett v. Municipal Employes Pension, 28 Atl. (2d) 93, reported September, 1942, a state law was construed by the court. This law provides that no pension shall be paid to a “widow * * * if she * * * was married to her * * * deceased spouse after the date of * * * his retirement or after * * * he shall have reached fifty-five years of age.”

Denver Auxiliaries Hold Social Evening At the left may be seen Captain John T. Horan, Instructor; Chief John F. Healy; Robert J. Kirschwing, Manager of Safety; Assistant Chief James L. Cain, Drillmaster in charge of auxiliary training, and Engineer Chester Block of Engine 20, as they attended the social get-together of the Denver, Colo., auxiliary firemen on September 15.

The court held that a widow was entitled to receive payments of a pension although she married the fireman titter he was 55 years of age. However, she married him before the original pension law was passed.

In Knoll v. City of Los Angeles, 132 Pac. (2d) 203, reported December, 1942, the higher court held that a person employed by the Los Angeles fire department to keep record of fires, make reports, etc., entitled to a pension under a charter provisions for pension to “members of fire department.” The court said:

“Under the test laid down in the charter, therefore, petitioner was entitled to share in the provisions of the pension plan as a member of the department.

In Thompson v. Civil Service Commission. 134 Pac. (2d) 188, reported February, 1943, it was shown that a fire chief was appointed by the city commission without regard to civil service.

It is important to know that this higher court held the rules of conduct prescribed for civil service employes had no application to the chief, and that he wqs not subject to discipline or penalty for violating such rules.

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