Baker

This is an appeal from a judgment granting to plaintiff a peremptory writ of mandate against defendants, upon their refusal to answer after the overruling of their demurrer to plaintiff’s petition, requiring defendants to grant, approve and allow a pension to plaintiff, as the widow of one Frederick Joseph Baker, alleged to have been killed while in the discharge of his duty as a fireman of the city and county of San Francisco.

Section 5 of chapter VII, article IX of the San Francisco charter makes it the duty of the Board of Fire Pension Fund Commissioners to provide a pension in a designated amount, out of the Firemen’s Belief Fund, for the widow of any “member or employee of the fire department who may be killed while in the performance of his duty.”

The real question to be determined is, Do the admitted facts in the case show that Frederick Joseph Baker, the late husband of plaintiff, was killed while in the performance of his duty?

In this connection it may be noted that respondent claims that it is alleged in the complaint, and so admitted by demurrer, as an ultimate fact that said Baker was killed while in the performance of his duty. However, we think that from the…