Tripp

Appellant prosecuted this proceeding in the superior court for a writ of mandamus compelling respondents to allow and pay appellant a pension as a disabled fireman of the city of Fresno. The petition alleged that appellant had been a regular member of the fire department from 1918 to 1927; that under the terms of the city charter and ordinance passed in pursuance of said charter appellant was entitled to a pension because his duties as a fireman exposed him to smallpox in the neighborhood of the firehouse to which he was assigned in 1924, and exposed him to influenza in 1925, and again in 1927, both of which diseases he contracted and by reason of having contracted said diseases appellant was rendered physically unable to discharge his duties as fireman. At the trial in the superior court appellant also testified that while fighting a fire in 1926 he • injured his foot, which resulted in a serious infection. Upon objection being made that this was outside the pleadings, appellant’s counsel stated:

Appellant claims the court erred in not making a finding concerning the foot infection above referred to. We see no merit in this contention. If it be conceded that the court was…