Wichita eagle., 1889-04-17
THREE PENSION DECISIONS.
Important Gases Passed Upon by Assistant
Secretary Bussey.

| WASHINGTON, April 16.-Assistant Sec
rotary Bussey today rendered three pension
decisions in which is involved the import
ant question of when may and when may
not soldier be considered in line of duty
The first case was that Of w. H. Broken
shaw. late of Company H. Twenty-nlnth
Michigan volunteers, who applied for an
| invalid pension. The basis of his claim
| was an injury to the left side incurred in
service at Jackson, Mich, about March 25,
1865, 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 Com
missioner Black on the ground that claim
ant was not injured in the line of duty"
| Assistant Secretary Bussey. in his decision
| today overruieS the former decision and
| directs that Brokenshaw'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
Harrington, the department declined to
| recognize the doctrine of contributory
negligence as an element in the line of
duty and failed, therefore, to notice either
the outlines or the innocence of the in
jured party. 1t is true doctrine of the
common law that 1.-The plaintiff has no
remedy if his negligence, in any degree
contributed to the accident" Of which he
complains, and whereby he suffered in
juries but the converse Of the 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 recover. As now correctly held by
the department 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 con-
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 remedy for the result.
zimmerman seems to have been true, with
increased emphasis of Brokenshaw, the
claimant in the pending motion. Broken
shaw was clearly in the line of duty-not
passive only, but active duty, which mas
much as he was in the act of climbing
into the bunk" the place of customary
rest, which it was his duty to use, and
which was provided for him by regulations
by the service-when he received the al
legged injury; the said injury though not a
necessary result was as to claimant an I'M
avoidable accident of the service, it having
been caused without provocation on his
part by three soldiers, names
unknown, jumping on him while
he Vas cir climbing into his
tributor to his owninjury, but was merely
the hapleSs recipient of an irresistible as
sault. His title TO remedy is plain, but it
does not lie against his assailants. 1t lies
In the system of pension provided for dis
abilities incurred III service and line of
duty. He was 'in his proper place ready
to perform such duty as he might be
Iai to do hp mi oil
as the ground of pension happened to him
without any fault or negligence on his
part" The doctrine which the depart
ment now avows is a fundamental rule of
justice, and the application of it to the
claimant in this case and all similar cases
seem to be required by the true spirit and
intent of the pension system.
Another case is that of c. II. Sedgwick,
late midshipman on the United States
steamer Sante and United States
steamer Constitution. Claimant. in
this case was injured by kick from
comrade on board ship. He was at the
time to use his own language Inviting
and teasing" his comrade, who, becoming
incensed thereat administered to him the
kick from which his disability resulted.
The assistant secretary in this case sus
tains former decision rejecting applica-
ton and adds: Here it is apparent that
the claimant not only contributed di-
rectly to produce the cause of his injury,
but that he was engaged at the time in
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 conduct on his part was I'M
questionably not incurred in the line of his
duty.
The third case is that of Elizabeth Hull,
widow of William Hull, a soldier who died
in military prison at Nashville. Tenn,
of inflammation of the pleura, contracted
in prison. he soldier it appears from the
evidence, was arrested and confined in the
prison for being absent from his company
and regiment without permission. IL this
case Mr. Bussey says: "To entitle widow
to a pension the wound, the injury or
the disease which caused the husbands
death must have been connected, as a re-
suit with the compliance by him with re
quirements of military duty. Such con
nection between the fatal disease and the
service did not exist in this case. The
former decision is adhered TO.