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DUGAN v. FIREMEN'S PENSION FUND PHILADELPHIA (01/14/53)

January 14, 1953

DUGAN, APPELLANT,
v.
FIREMEN'S PENSION FUND OF PHILADELPHIA



Appeals, Nos. 258 and 259, Jan. T., 1951, from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1947, No. 4856, in case of Joan Dugan et al. v. Firemen's Pension Fund of Philadelphia. Judgment affirmed; reargument refused February 13, 1953.

COUNSEL

Philip Richman, with him Harry A. Cantor and Richman & Richman, for appellants.

Charles W. Sweeney, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Chidsey

[ 372 Pa. Page 430]

OPINION BY MR. JUSTICE CHIDSEY

The five minor children of Joseph Dugan, deceased, by their mother, Margaret Dugan, as guardian, and Margaret Dugan as widow, brought an action of assumpsit against the Firemen's Pension Fund of Philadelphia,

[ 372 Pa. Page 431]

    a corporation, to recover a pension of $50 per month for the widow and $40 per month for the minor children from the date of Dugan's death on November 8, 1943. The case was heard by a judge without a jury who found in favor of the defendant. From the judgment entered following the dismissal of their exceptions, plaintiffs appealed to this Court which upon stipulation of counsel remanded the case for additional findings by the trial court. Following the adduction of additional testimony by the plaintiffs, the lower court made supplementary and definitive findings resulting again in the entry of judgment for the defendant. The appeal is now before us for final determination.

Joseph Dugan, the deceased, was a hoseman attached to a fireboat on the Delaware River. On March 8, 1942 he responded to a fire on a steamship. While fighting the fire, a guide rope was placed around his body as he descended or was lowered into the hold of the ship. When he returned home from work that day, he complained to his wife of pains in his stomach. Shortly thereafter lumps appeared in his stomach. On March 31, 1942 Dugan went to the Philadelphia General Hospital where a subtotal gastrectomy was performed upon him. Between March 31, 1942 and July 31, 1942 he spent periods of time in the Philadelphia General Hospital and in a convalescent home. He returned to work on December 16, 1942. From February 18, 1943 until March 1, 1943 he was out of work with an attack of the grippe. On September 10, 1943 he was readmitted to the Philadelphia General Hospital with an acute exacerbation of abdominal symptoms. On September 14, 1943 he was transferred to the convalescent home, but on October 27, 1943 he was brought back to the Philadelphia General Hospital with an intestinal obstruction. He died on November

[ 372 Pa. Page 4328]

, 1943. This was eighteen months after the accident. The cause of death was given as post-operative bronchopneumonia.

Plaintiffs claimed that the guide rope placed about Dugan's body when he descended or was lowered into the hold of the ship strained or aggravated a physical condition created by an ulcer operation performed in November of ...


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