Claim of Duckett

156 S.E.2d 838 (1967)

271 N.C. 430

Claim of Mildred Lunsford DUCKETT, widow of Lt. Arthur Walter Duckett, for payment of Pension by Board of Examiners of Asheville Firemen's Pension and Disability Fund.

No. 121.

Supreme Court of North Carolina.

September 27, 1967.

*842 O. E. Starnes, Jr., Asheville, for appellant Board of Examiners.

Don C. Young and Lee, Lee & Cogburn, Asheville, for appellee.

BRANCH, Justice.

"The right to a pension depends upon statutory provision therefor, and the existence of such right in particular instances is determinable primarily from the terms of the statute under which the right or privilege is granted." 40 Am.Jur., Pensions, Sec. 23, p. 980.

Chapter 320 of the 1955 Session Laws of North Carolina provides in pertinent part:

"Sec. 7. Payment for Disability in Line of Duty.That if and in the event any member of the Asheville Fire Department qualifying under this Act shall become disabled while acting in line of his duties, and is unable to work, he shall receive monthly a sum equal to seventy (70%) per cent of his monthly salary as then paid by the City of Asheville, said seventy (70%) per cent of said monthly salary shall be paid in monthly installments by the Custodian of the Firemen's Pension Fund; * * * Provided, further, that if such member of the Asheville Fire Department shall be killed in the line of his duties, or shall die as a result of a disability as defined in this Section, his widow, if he be married, shall receive, so long as she remains unmarried, the same monthly installments as he would have received under this Section".

It is not controverted that deceased died as a result of a disability. Thus, the crucial question is whether there is sufficient, competent, material, substantial evidence to support the Board's finding that decedent was not disabled "while acting in line of his duties." In order to answer this question we must determine the meaning of "while acting in line of his duties" as used in the statute amending the Act establishing the pension fund for members of the Asheville Fire Department. We are unable to find a North Carolina case which has decisively interpreted the phrase, "while acting in line of his duties." Neither do we find much help or guidance from the many cases arising under our Workmen's Compensation Act, since there, compensation is only allowed when there is an injury by accident arising out of and in the course of employment. Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907. Thus, without these additional requirements in the controlling statute, we must readily concede that "while acting in line of his duties" as used in the instant case has a much broader meaning than the language used in the Workmen's Compensation Act.

Appellant contends that there must be causation, i. e., the disability or death must be produced by or arise from the employment, and that to hold otherwise would contravene the purpose of the legislature and lead to an absurd result. In support of this contention it cites In re Hickerson, 235 N.C. 716, 71 S.E.2d 129, which holds:

"In this connection, in State v. Barksdale, 181 N.C. 621, 107 S.E. 505, 507, this Court, in opinion by Hoke, J., stated that parts of the same statute, and dealing with the same subject, are `to be considered and interpreted as a whole, and in such case it is the accepted principle of statutory construction that every part of the law shall be given effect if this can be done by any fair and reasonable intendment, and it is further and fully established that, where a literal interpretation of the language of a statute will lead to absurd results, or contravene *843 the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded,' * * *"

The case of Hutchens v. Covert, 39 Ind.App. 382, 78 N.E. 1061, represents a line of authority which would seem to sustain appellant's position. Here the statute authorized a pension to the widow and children of a policeman on his death, and "while in line of duty or from natural causes". The court held that a pension under this act was not authorized where a policeman while at his place of duty committed suicide because of insanity without a showing that the insanity was the result of the performance of his duty. This case is factually distinguishable from the instant case, in that in Hutchens the deceased died because of self-destruction or his own wrongdoing and while he was not acting in the line of his duty.

In State ex rel. v. Board of Trustees, 192 Mo.App. 583, 184 S.W. 929, the Missouri Court considered a pension statute which provided, "If any member of such fire department shall, while in the performance of his duty, be killed or die as the result of an injury received in the line of his duty, or of any disease contracted by reason of his occupation as fireman, or shall die from any cause whatever while in such service". Holding that the widow of a fireman who died as a result of being shot during a quarrel in a saloon and at a time when he had been granted a special leave of absence should not recover pension under this act, the court stated: "So that the phrase `while in such service' is not synonymous with `while a member of the fire department.' But the word `service' means the `same service' referred to in the three preceding clauses; that is to say, a service rendered `in the line of his duty' or `by reason of his occupation as a fireman.' The word `service' as here used means the act of serving, the labor performed or the duties required of a fireman, and is not used to refer to or designate a department of the city's activities." * * *

"And so on throughout the act, the disability, injury, incapacity, or whatever it is, must arise from, or be connected in some way with, the performance of the duties of a fireman."

The phrase "while in line of duty" was discussed in the case of Allen v. B., C. R. & N. Ry. Co., 57 Iowa 623, 11 N.W. 614, in an action for personal injuries sustained by a brakeman while getting off a moving train at a switch when a witness was allowed to testify that it was "in the line of his duty" for a brakeman to so do while the train was in motion. In pertinent part, the court stated:

"The duty of a brakeman may be prescribed by rule of the company employing him, or by custom prevailing in the operation of railroads. It pertains to the particular services performed and the purposes to be accomplished. * * * "The expression in the evidence just quoted, `in the line of duty,' was doubtless used in its correct meaning as synonymous with the words `in the discharge of duty.' The court in the instructions used the expression in this sense. The jury understood the witnesses when they declared an act of the brakeman to be `in the line of duty,' to express the opinion that the duty of the brakeman required him to perform the act. * * *"

In the case of Mook v. City of Lincoln, 146 Neb. 779, 21 N.W.2d 743, a widow was granted a pension under a statute which provided for a pension in case of the death of a fireman "`while in the line of duty, `or where `death is caused by or is the result of injuries received while in the line of duty,' * * *" The plaintiff's decedent collapsed while on the roof of a building fighting a fire, and died within an hour, the cause of his death being angina pectoris. In this case the defendant contended, as does the defendant here, that in order for *844 the plaintiff to recover she must prove not only that death was in the line of duty, but also that death was the result of the duty and not merely coincident with it. The court, in deciding for the plaintiff, stated:

"`"* * * where the words of a statute are plain, direct and unambiguous, no interpretation is needed to ascertain their meaning * * *."' In the absence of anything to indicate the contrary, words must be given their ordinary meaning. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language. Neither is it within the province of a court to read plain, direct, and unambiguous language out of a statute. If possible, the entire statute is to be applied as written. We think this statute meets the test of being plain, direct, and unambiguous."

It is obvious in this case that the court considered "while in line of duty" a plain, direct and unambiguous phrase which required no judicial interpretation. Further, the disjunctive participle "or" is used to indicate a clear alternative. The second alternative is not a part of the first, and its provisions cannot be read into the first.

Recognizing the rule that the words of a statute must be given their natural or ordinary meaning (Southeastern Baptist Theological Seminary, Inc. v. Wake County, 251 N.C. 775, 112 S.E.2d 528), we turn to Webster's Third New International Dictionary for the following definitions:

Line of duty"all that is authorized, required, or normally associated with some field of responsibility (as a policeman, fireman, or soldier)used esp. in connection with assessment of responsibility for or classification of sickness, injury, or death of persons subject to a line of duty. (it is now customary to consider any sickness or injury of a member of an armed service that is suffered while on active duty to have been incurred in the line of duty in the absence of personal fault or neglect or of existence of the condition prior to entry into service)." While"a period of time * * * the time during which an action takes place or a condition exists * * * the time marked by the occurrence of an action or a condition."

Thus, we hold that a person is acting "while in the line of duty" when he acts at the time and place he is required to be at work and when he is engaged in the performance of his duties or is engaged in activities incidental to his duties. The term "while in line of duty" is synonymous with "while in the course of employment" or "while in discharge of duty."

The statute before us is clear, positive and understandable, and expresses a sensible meaning.

In order for appellant to prevail, we would have to read into the statute a requirement that there be a causal relation between his disability and his duties. This we cannot do.

"* * * the Court must construe the Act as written. The Legislature has power to change the law. The court does not have that power." Jenkins v. North Carolina Dept. of Motor Vehicles, 244 N.C. 560, 565, 94 S.E.2d 577, 581.

Appellant further contends that the Superior Court is bound by the Pension Board's finding of fact. The finding of fact by the Board that decedent's death or disability was not received in line of duty was in reality a legal conclusion determinative of the parties' rights and as such is reviewable by the Superior Court, although it was denominated as a finding of fact. Continental Casualty Co. v. Funderburg, 264 N.C. 131, 140 S.E.2d 750; Warner v. W. & O., Inc., 263 N.C. 37, 138 S.E.2d 782.

*845 There was not sufficient, competent, material substantial evidence to support the Board's conclusion that decedent was not disabled while acting in line of his duties.

Affirmed.