Tyra v. Board of Police and Fire Pension Commissioners

FOX, J. pro tem.

By his petition for a writ of mandate the plaintiff sought to compel the defendant, Board of Police and Pire Commissioners, to retire him from active service in the fire department and to award him a pension under the provisions of subdivision 3 of section 187 of the Long Beach City Charter, upon the ground that he had sustained injuries while acting in the course of his employment as a fireman, as a result of which he became permanently and totally disabled from and after February, 1940. The trial court sustained an objection to the introduction of any evidence for the reason that the petition did not state facts sufficient to constitute a cause of action. The objection was based on the grounds that it appeared from the face of the petition; (1) That the relief sought was barred by the provision of subsection 1 of section 338, Code of Civil Procedure, and (2) that plaintiff had accepted the benefits of the Workmen’s Compensation and Safety Act and was therefor not entitled to a pension under the provisions of the charter of the city of Long Beach. This is an appeal from the ensuing judgment of dismissal.

[52]

In Ms petition, which was filed August 26, 1942, plaintiff alleged that he was employed by the defendant city as a regular member of its fire department on September I, 1929, and that he had been and was employed as a regular member of said department up to and including February 8, 1937; that on the last mentioned date, while engaged in discharging his duties as a fireman, he “fell from a step ladder which broke under him and thereby sustained an injury to his back; that at first said injury did not appear to be particularly serious, although it did incapacitate Petitioner from performing several of the duties required of him as a fireman, and necessitated a temporary cessation of his regular duties as a fireman; that at the said time the Defendant City was permissibly self insured pursuant to the provisions of the Workmen’s Compensation and Safety Laws of the State of California and commencing as of February 16, 1937, the Defendant City voluntarily paid to Petitioner compensation pursuant to said Workmen’s Compensation Act at the rate of $25.00 per week for a period of approximately 240 weeks up to the month of September, 1941.” It is further alleged that, on or about March 4, 1942, in a proceeding before the Industrial Accident Commission wherein plaintiff was applicant and the city was defendant, said commission duly and regularly rendered an award and finding of fact wherein it was adjudged that applicant sustained injuries arising out of the aforesaid accident which “eventually resulted in a permanent disability of 100%” entitling applicant to receive in addition to the aforesaid $25 per week for 240 weeks from February 16, 1937 (which period ended prior to said commission’s finding and award), the further sum of $15.38 per week for the balance of his life, together with any and all medical attention made necessary by said injuries. Plaintiff also alleged “That throughout the period from February 8, 1937, to date Petitioner has been treated by doctors and surgeons provided for him by the Defendant City of Long Beach and in the month of October, 1939, underwent an operation to his back at their suggestion which said operation was performed with a view to relieving the lingering effects of said injuries and in the month of February, 1940, Petitioner was for the first time advised by his attending physicians that his disability was of a permanent nature and that he would never again be able to resume his duties as a fireman; that prior to said month of February, 1940, Petitioner was of the opinion and had been