Tyra v. Board of Police & Fire Pension Commissioners

MOORE, P. J.

By his second amended and supplemental petition appellant sued for a writ of mandate to compel respondents to grant him a disability pension from February 8, 1937, to February 1, 1940. From an adverse judgment he brings this, his third, appeal.

"While engaged in the discharge of his duties as a fireman of the city of Long Beach on February 8, 1937, appellant sustained severe bodily injuries. On August 26, 1942, by his original petition, he sought to enforce his claim for a pension from February 1, 1940, and for such further payments as might become due him in accordance with section 187 of the city charter of Long Beach. The judgment that his petition did not state a cause of action was reversed. (71 Cal.App.2d 50 [162 P.2d 35].) "Upon the second trial the court found that appellant was so permanently disabled as to render his retirement from active service necessary as of November 30, 1937, but since more than three years had elapsed prior to the filing of his claim, his action was barred by the three-year statute of limitations. That judgment was reversed September 29, 1948. (32 Cal.2d 666 [197 P.2d 710].) Appellant filed another application for a disability pension with the city council which had in March, 1945, taken over the duties of the Board of Police and Fire Pension Commissioners. That body granted appellant a disability pension, commencing on February 1, 1940, instead of February 8, 1937, and ordered that the applicant was not entitled to a pension from the earlier date by reason of the decision of the Supreme Court last cited. Thereupon appellant filed his second amended complaint. The issues of fact presented to the courts on each of the first two trials and on both appeals are significant and bear mightily upon the matters involved on this appeal.

During the course of the litigation there has been a controversy as to the extent of appellant’s disability from the time of the accident until October, 1939, when he suffered a surgical operation with a view to removing the lingering effects of his injuries. In February, 1940, he was advised that his disability was of such a permanent nature that he would be unable ever to resume any duties as a fireman. Upon the third trial the court determined that prior to February, 1940, appellant was

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not so disabled as to render necessary his retirement from active service and that respondents had not abused their discretion in denying appellant’s application for pension prior to February 1,1940.