Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1889-04-17
PENSION DECISIONS.
Assistant Secretary Announces Three
Very Important Rulings.
ONE PENSION IN THREE GRANTED.
Michigan Man Gets One for Being Hurt
While Getting in His Bunk.
ANOTHER CASE NOT QUITE LIKE THAT

WASHINGTON, April 1e.-Assistant Sec
retary Bussey to-day rendered three pension
decisions, in which is involved the impor-
tant question of when may and when may
not soldier be considered rim the line of
duty2" The first case is that of w. H.
Brokenshaw, late of Company H, Twenty
ninth Michigan Volunteers, who applied
for an invalid pension. The basis of this
claim was an injury to the left side, incurred
in the service at jackson, Mich, about
March 26, 1866, said injury having
been ''caused by three soldiers
jumping on claimant while he was climbing
into his bunk, crushing the ribs of the left
side, just below the heart The claim was
rejected by Commissioner Black upon the
ground that claimant was not injured in
the line of duty" Assistant Secretary
Bussey, in his decision to-day, overrules the
former decision, and directs that Broken
shaw's name be placed upon the pension
rolls, rating his disability in accordance
with law. He SAYS:
In the original zimmerman decision (recently
reVersed), as in the preceding case of Harring-
ton, the department declined to recognize the
doctrine of contributory negligence as an ele-
ment In the line OF duty and failed, therefore, to
the injured party. It is immemorial and true
doctrine of the common law that "the plaintiff
has no remedy, if his negligence, in any degree,
contributed to the accident of which he COM
plains, and whereby he suffered injury; but the
converse Of this doctrine is equally true, VIZ:
that, if the negligence of the other party was
THE SOLE PRoxIMATE CAUSE
of the injury, then the injured party may re-
cover. As now correctly held by the depart
ment zimmerman was 'in his proper place,
ready to perform such duty as he might be
called upon to do" and was guiltless of any
act contributory to it, inasmuch as ''the injury
alleged as the ground of pension happened to
him without any fault or neglect on his part"
and hence, he was entitled to a remedy for the
result That which, in this particular, was
true of zimmerman. seems to have been true,
with increased emphasis, of Brokenshaw, the
claimant in the pending motion. Brokenshaw
was clearly in the line of duty-not passive
only. but active duty-lnasmuch as he was in
the act Of climbing into his bunk" the place
81 customary rest which it was his duty to
use and which was provided for him by the
regulations of the service-when he received
the alleged injury; the said injury, though not
a necessary result, was, as to claimant,
an unavoidable incident of the service. it
having been caused, without any provocation
on his part by three soldiers names unknown,
jumping on him while he was climbing into his
bunk He was thus in no degree contribu-
tor to his own injury, but was merely the help
less recipient of an irresistible assault. His
against his assailants. It lies in the system of
pensions provided for disability incurred in the
service and line of duty. He was ''in his proper
place, ready to perform such duty as he might
be called upon to do" and the injury alleged as
the ground of pension happened to him with
out any fault or neglect on his part" The DOC
trlne which the department now avows is
fundamental rule of Justice, and the applica-
ton of il to the claimant in this. as in all simi-
lar cases, seems to be required by the true
spirit and1ntent of the pension system.
QUITE AN OPPOSITE CASE.
Another case is that of C. h. Sedgwick,
late midshipman United States steamer
'Santee" and United States steamer "Con-
stiUution." The claimant in this case was
injured by kick from a comrade on board
ship. He was at the time. to use his own
language, Inviting and teasing his COM
rade, who, becoming incensed thereat, ad
ministered to him the kick from which his
disability resultey. The Assistant Secre-
tarv in this case sustains former decision
rejecting the application, and adds:
Here it is apparent that the claimant not
only contributed directly to produce the cause
of his injury, but that he was engaged at the
time in a manner that was manifestly in
violation of the rules and regulations of the
service, and subversive of discipline and good
order, and the injury resulting from such con-
duct on his part was unquestionably not in
Cured in the line of duty.
The third case is that of Elizabeth Hull,
widow of William Hull, a soldier who died
in a military prison at Nashville, of in
fammation of the pleura, contracted in the
prison. The soldier, it appears from the
evidence, was arrested and confined in the
prison for being absent from his company
and regiment without permission. In this
case Mr.. Bussey says:
To entitle widow to a pension, the wound,
the injury or the disease which caused the hus-
bands death must have been connected. as a
result, with the compliance by him with the re-
quirements of military duty. Such connection
between the fatal disease and the service did
not exist in this case
The former decision is adhered to,