Lundrigan v. City of Los Angeles

In this proceeding for a writ of mandate to compel payment of a pension to petitioner as the widow of a member of the Los Angeles Police Department, judgment was in favor of petitioner. Defendants appeal from the judgment on the ground that there was no evidence to sustain findings that there was a causal connection between the death of petitioner’s husband and injuries received by him while performing his duties as a policeman.

Section 183 of the charter of the city of Los Angeles provides that a widow of a member of the police department is entitled to a pension if the husband died “as a result of any injury received during the performance of his duty, or from sickness caused by the discharge of such duty.” Said provision requires that a causal relation, mediate or immediate, must be shown between the duty performed by the decedent and the immediate cause of death. (Platt v. City of Los Angeles, 72 Cal.App.2d 753 , 754 [ 165 P.2d 714 ].)

Decedent was appointed a member of the police department on June 1, 1927, and continued to be a member of that department until the time of his death, February 24, 1945. During that period of time he received numerous injuries while performing his duties as a patrolman. He died at the age of 44, and the cause of death was carcinoma (a form of cancer) of the right kidney, with metastasis to the regional nodes and to the liver. Petitioner alleged that injuries received by decedent during the course of his employment in 1928, in 1934, and in 1941, were the direct and proximate cause of his death.

Petitioner testified that decedent was injured the first time in 1928 (when he was struck by an automobile), at which time he complained of pains across his back, right side and flank, and she does not remember how long he was off duty; that he was next injured in 1935, when he was struck by an automobile, at which time he complained of headaches and pains in his back and body where he had been hit; that the next injury occurred in November, 1943, when he was struck by an automobile, at which time he complained of pains over his left lung, his heart region, left shoulder and back and said

A witness called on behalf of plaintiff testified that he had known decedent about 23 years; that they were very close friends and he visited decedent in his home about twice a month regularly; that decedent first complained to him of being in pain about 1935; that on several occasions during 1935, he complained to him about having pain in his back; that during 1936, he also complained about having a pain in his back, and on occasions he was lying on the couch with a heating pad on his back; that the next time decedent complained of pain to him was in 1939, when decedent said that his back hurt at times; that that was the last time he saw decedent; that decedent complained only about his back to the witness; that most of his visits to decedent were on Sundays, and he would say decedent was lying down 90 per cent of the times he visited him.

At the close of the testimony of these two witnesses the trial was continued until a later date, pursuant to a previous stipulation, to allow counsel for petitioner and defendants an opportunity to prepare a hypothetical question, which they would stipulate was a proper question, to be submitted to medical experts for study. One month later, and after the medical experts had had an opportunity to study the hypothetical question, the trial was resumed and two physicians were called as witnesses on behalf of petitioner and two on behalf of defendants. The hypothetical question was introduced as plaintiff’s Exhibit 1 and it consisted of:

(1) A résumé of a medical record of the receiving hospital of the city of Los Angeles, which showed decedent’s illnesses and injuries, diagnoses, treatment and time off duty from

January 9, 1928—Statement: Dragged by automobile. Diagnosis: Contusion with ecchymosis (black and blue marks), crest of ilium (top of hip bone), right, near anterior superior spine.

January 14,1929—Statement: Condition followed strain of right hip 1/9/28, making an arrest. Diagnosis: Left inguinal hernia.

September 28, 1928—Statement: Scratched by a prisoner. Diagnosis: 5 or 6 abrasions right wrist, volar surface.

October 21, 1930—Statement: Hurt finger on auto fender. Diagnosis: Fracture, distal phalanx, left little finger.

June 10,1931—Statement: Struck hand against auto fender. Diagnosis: Laceration left hand.

May 16, 1932—Statement: Struck by rear of auto. Diagnosis: Contusion, head of right fibula.

June 24, 1933—Statement: While directing traffic struck left hand on door of auto. Diagnosis: Contusion with swelling, dorsum of left hand.

August 20, 1934—Statement: Injured back of right hand and head while directing traffic. Diagnosis: Small hematoma, mid parietal. And contusion and abrasion dorsum right hand.

November 22, 1934—Statement; Left hand twisted and wrenched by steering wheel. Diagnosis: Sprain of left wrist.

April 15, 1935—Statement: Injured right hand pumping flat tire on police automobile. Diagnosis: One-half inch shelving laceration right hand web of thumb.

January 4, 1936—Statement: Handle of passing car door struck left elbow. Diagnosis: Contusion left arm near elbow, contusion ulnar nerve with paresthesis.

November 17, 1936—Statement: Strained back when reaching to get hold of person about to step in front of streetcar. Diagnosis: Lumbago.

December 28, 1936—Statement: Scratched hand on fender while marking tires.

November 5, 1937—Statement: Sprained back going upstairs at Central Station. Diagnosis: Sprain, left lumbar.

November 1, 1941—Statement: Injured while subduing prisoner. Diagnosis: Swelling, left anterior chest, left second and third ribs. Contusion right mandible. Possible fracture.

September 17, 1942—Statement: Punctured hand on nail

(In addition to the above, the medical record shows approximately 42 entries to the effect that decedent, during the time he was an officer, had various illnesses, such as colds, influenza, pleurisy, pains in his chest and ribs, biliousness and nausea.)

(2) A letter, dated November 16, 1944, written by a doctor to the surgeon of the receiving hospital, which stated that decedent consulted him and complained of scattered muscular pains, particularly over the back and hips; that an examination disclosed a possible gastric pathology, and that decedent would remain under the care of the clinic for several weeks, but it would probably be all right for him to return to his regular work;

(3) A letter written at the request of petitioner by Dr. Brace, the clinical director of the veterans administration, to the Los Angeles police and pension board, which stated that the decedent was admitted to that “Facility” on July 19, 1937, for the treatment of tonsillitis, and that a tonsillectomy was performed; that he was again admitted to the hospital November 20,- 1944; that he came by ambulance and stated that he had been in good health until three weeks prior to the admission when he had pains in his abdomen and back and was nauseated; that during a routine examination it was found that he had a mass in the right upper abdomen, which was consistent with a tumor of the kidney; that a nephrectomy (removal of kidney) was done which revealed a papillary carcinoma of the kidney; that his post-operative course was complicated by severe illness; that examination by the tumor board on December 15, 1944, revealed a palpable node in the left supraclavicular region and a recent sear in the right flank which was healing; that a diagnosis of carcinoma of the right kidney with metastasis, post-operative, was made, and X-ray therapy recommended; that when he recovered from the post-operative illness the X-ray therapy was carried out; that decedent became ambulant, afebrile and his only complaint was a pain in the left back; that he was discharged on January 9, 1945, with advice to report for a “followup” examination; and that the decedent was last admitted to the hospital on February 5, 1945 ;

(4) A letter written after the death of decedent, at the request of petitioner, by the clinical director of the veterans hospital to the department of pensions, which stated that decedent was discharged from the hospital on January 9, 1945,

(5) An injury report dated January 16, 1929, made by decedent, which stated that after the injury on January 9, 1928, he was treated for hip bruises and at that time he complained of sharp pain in his left side, which the doctor said may have been the strain from holding on to the side of the automobile he “was dragged by,” and the report also stated that-that “pain left and then returned about 6 weeks or 2 months later, and has been bothering me ever since”; that several months ago he noticed a swelling in his side which proved to be a hernia, and he requested a leave of absence for an operation ;

(6) A letter written by a captain in the personnel division of the police department to the chief of police, which stated that decedent’s personal file disclosed the following record of injuries sustained by decedent “in line of duty”:

“1-17-29: Herniotomy—Hit by car—1-9-28;

"8-21-34: Blood tumor forehead—Becurr. 1-9-28;

‘ ‘ 11-5-37: Sprain left lower back—Slipped on steps;

“11-1-41: Contusion ribs, chest—Suspect resisting arrest;

‘ ‘ 9-16-42: Puncture wound left hand—Moving typewriter ’ ’;

(7) An injury report dated November 8, 1937, made by decedent, which stated that he slipped and fell while ascending stairs from the desk sergeant’s office, and felt something snap in the lower left side of his back and had to brace himself with his hand to keep from doubling up; went home, massaged his back but obtained relief from the pain only about 30 minutes; that the following morning he reported to the receiving hospital and went there every day thereafter for light treatments and wore a surgical belt to relieve the pain in that area, which pain seemed to be getting worse instead of better; that the doctor recommended he remain off duty and immobile, if possible, which he would do as soon as convenient;

(9) A résumé of the records of the office of medical examiner regarding decedent, dated August 17, 1945, and addressed to the police department, which shows the results of five physical examinations given decedent from April, 1933, to August, 1943, stating his weight, height and his blood pressure, blood count, urinalysis and finding;

(10) The substance of the testimony of petitioner and her lay witness.

It was stipulated that the assumed facts embodied in the hypothetical question were the facts of the case, except as to the testimony of the two witnesses, regarding which it was stipulated merely that they did so testify.

Dr. Herbert A. Rosenkranz, called on behalf of petitioner, testified that he was admitted to practice in California in 1911; that he had practiced medicine since that time except for four years when he was taking postgraduate courses; that he specializes in urology, that is, any diseases of the genitourinary system, kidneys, bladder, etc., including cancer; that he was one of the chief urologists for the general hospital in Los Angeles County for 27 years; that while he was on active duty at the general hospital he saw about 12 cases of cancer of the kidney a year; that he had read the hypothetical question, and he was of the opinion that decedent died of papillary carcinoma of the kidney, caused by one or more of the injuries he had received; that he based his opinion on the fact that decedent was rather severely injured three or four times and on the fact that decedent had considerable pain from time to time in the kidney region; that rather frequent pain in the back is a symptom of tumor of the kidney; that the kidney is comparatively easy to injure because the liver holds it rigidly in one place and it cannot yield to external pressure; and that it is an established scientific fact in the medical profession that cancer of the kidney may arise from a single

Dr. Roy W. Johnson, called on behalf of defendant, testified that he is a physician; that he was admitted to practice in California in 1934, and since then has specialized in radiology (the use of X-rays or radium in the treatment of disease) and that cancer constitutes about 80 per cent of his work; that he treats possibly 10 cases of cancer of the- kidney in a year; that he had studied the hypothetical question and, assuming the facts therein stated to be true, he did not believe death was caused by the injuries received in line of duty as set forth in the résumé of the medical record in the question; that no one knows the cause of cancer; that he thinks cancer occasionally occurs as the result of just one trauma; that there is such a thing as a cancerous cell, and a dormant cell can become active, break away and travel through the whole body; that it could move out of the lung into the kidney and cause the disease there; that cells from cancers can break off, spread around in the blood or in the lymphatic system to a distant point and grow there; that he has seen cases where the original cancer was the size of a pea, yet there were very large distal metastases; that in many eases the original cancer can be cured but the distant spread kills the patient; that the fact that the hypothetical man complained of pain in his back more or less continuously for some time would impress the witness with the idea he might have cancer of the kidney.

Dr. J ay J. Crane, on behalf of the defendants, testified that he was admitted to practice in California in 1921, and since then has specialized in diseases of the genitourinary tract; that he is now chief of the urological staff at the Los Angeles County general hospital; that he thinks “we see” 24 to 36, maybe 50, cases of cancer of the kidney a year in private

The findings challenged on this appeal are numbers 6, 8, 9, and 10, and are to the effect that the immediate cause of decedent’s death was carcinoma of the right kidney; that in January, 1928, decedent sustained injuries to his right side and back when he was struck by an automobile; that in August, 1934, when he was struck by an automobile, and in October, 1941, when he was assaulted by a man he was taking into custody, he sustained injuries which aggravated the injuries above referred to; that all of those injuries were sustained during the course of his duty as a police officer; that prior to the injuries sustained in January, 1928, decedent had been “in good health, but immediately thereafter and continuously and progressively up to the time of his death, and as a direct and proximate result” of those injuries, as well as those received thereafter, decedent “commenced” to suffer pain, particularly in his back, abdomen, and sides; that an operation was performed on November 28, 1944, from which he did not recover; and that as the proximate result of the operation and said injuries he died.

Appellants also argue, in support of their contention of insufficiency of the evidence, that the opinions of the expert witnesses who testified on behalf of petitioner are entitled to no evidentiary weight. They state that Dr. Rosenkranz is not a cancer specialist, and that Dr. Chase had no training in the treatment of cancer and never treated cancer of the kidney. The record shows that Dr. Rosenkranz is a specialist in urology, which includes the treatment of cancer of the kidney, and that he formerly was chief urologist (for a period of 27 years) for the Los Angeles County general hospital, during which time he saw about 12 cases of cancer of the kidney a year. Dr. Chase testified that he had no special training in the treatment of cancer, but that he had practiced medicine more than 30 years; that he had treated, or operated upon, approximately 36 cases of cancer. Those physicians were qualified as medical experts and their opinions were part of the evidence to be weighed by the trial court. Appellants also state that the opinion of Dr. Rosenkranz that decedent died as the result of injuries received in the performance of his duty was based to a great degree upon the testimony of petitioner and her lay witness, whose testimony they assert was without weight. Although the testimony of the petitioner and her lay witness was not stipulated to be true, it was nevertheless evidence in the case. Furthermore, Dr. Rosenkranz testified on cross-examination that he would be of the same opinion if the testimony of petitioner and her lay witness were eliminated from the hypothetical question, leaving the résumé of the medical records, letters and injury reports.

Appellants further contend that the opinions of petitioner’s medical witnesses were based upon mere possibility and assumption, and do not establish a causal connection between the death of decedent and the injuries received by decedent during the course of his employment. In this regard they assert that Dr. Rosenkranz assumed there was a connection

Appellants also assert that Dr. Chase “assumed” that the injuries sustained on January 9, 1928, and on November 1, 1941, caused or contributed to causing the cancer. Dr. Chase testified that he thought the evidence was “somewhat less than conclusive” that the injuries sustained on January 9, 1928, caused the cancer, but that he thought they were the probable cause, whereupon counsel for appellants asked “Have you assumed, Doctor, they are the probable cause of the cancer?” To which the witness replied, “I assume these injuries are among those that did cause cancer, I don’t know which one did.” Dr. Chase also testified that he considered the injury sustained on November 1, 1941, as a “possible cause” of the cancer and counsel for appellants asked, “Well, what did you do in arriving at this opinion, Doctor, assume that it would help cause it?” The witness replied, “I assumed that it, together with other trauma, caused the cancer.” The word “assume” was used extensively throughout cross-examination by counsel for appellants in questioning petitioner’s expert witnesses. Although that word was used sometimes by the witnesses in answering those questions, it was not used in the sense of a mere supposition. It is evident from their testimony as a whole that those witnesses meant they were of such opinion or belief. Counsel for appellants cross-examined petitioner’s expert medical witnesses at length, and questioned them as to the injuries and illnesses which the witnesses considered had any bearing upon the kidney condition. In most instances the witness testified, as to the injuries or illnesses so indicated by him, that the particular injury was a “possible” cause or aggravation of the kidney condition, which he took into consideration, together with all the other possible causes, in forming his opinion as to what did" cause the condition. The expert medical testimony on behalf of petitioner and also appellants shows that medical science has discovered no méthod of determining the exact cause of cancer or the exact time of its origin.

Although the burden was upon petitioner to show a causal relation between the duty performed by decedent and the immediate cause of his death (Platt v. City of Los An

The evidence was sufficient to support the findings and the judgment of the trial court. It is unnecessary to consider appellants’ further contention that the evidence, exclusive of the expert testimony, was insufficient to support the findings.

The judgment is affirmed.

Shinn, Acting P. J., and Vallee, J. pro tern., concurred.