TYRA v. BOARD OF POLICE AND FIRE PENSION COM RS OF CITY OF LONG BEACH (1948)

By this action petitioner sought to compel respondents to award and pay appellant a disability pension pursuant to subdivision (3) of section 187 of the Long Beach city charter. Stats.1921, p. 2054; as amended: Stats.1925, p. 1330; Stats.1931, p. 2787. His disability resulted from injuries sustained by him while performing his duty as a fireman for the city. This is the second appeal. 71 Cal.App.2d 50, 162 P.2d 33. The substance of the former holding was that the petition was sufficient as against a general demurrer, and the court therefore reversed the judgment of dismissal with the suggestion that on a retrial it would be a question of fact for the court to determine from the evidence when plaintiff's condition became such as to necessitate his retirement from active service. Further details of the allegations of the petition and the language of section 187(3) of the charter will be found in the opinion cited.

The respondents having pleaded that the action was barred by the provisions of section 338 of the Code of Civil Procedure, the questions on this appeal are two: (1) whether appellant's alleged cause of action accrued on November 30, 1937, as contended by respondents, and (2) whether the acts and declarations of respondents and their agents during the period following the last mentioned date and until February, 1940, were such as to estop them from pleading the statute of limitations. A discussion of the other affirmative defenses will be unnecessary in view of the conclusions derived.

Permanently Disabled November 30, 1937.

Appellant received his disabling injuries February 8, 1937. Two documents were in evidence which alone support the finding of the court that appellant's cause of action accrued on November 30, 1937. On this date he filed an affidavit with the city treasurer in which he averred, ‘that claimant is now and ever since the 8th day of February, 1937, has been totally and permanently disabled as a direct result and consequence of said injury.’ On April 13, 1939, he filed his application with the Industrial Accident Commission in which he stated that the controversy is the ‘extent of permanent disability’ and requested a ‘commutation of future payments.’ Such declaration could not have been made with any other thought in view than that appellant was the victim of a permanent disability, for at that time no dispute existed with respondents with respect to a temporary disability. If he had not aimed then to reap the benefits of a permanent disability he had no business before the Industrial Accident Commission.

Appellant's complaints to the physicians and their findings, together with the sworn declarations, are substantial evidence to support the findings that appellant was permanently disabled on November 30, 1937, and so physically disabled as a result of his injuries as to render necessary his retirement from active service; that more than three years had elapsed, and that his action was barred by subdivision 1, section 338 of the Code of Civil Procedure.

Appellant's Failure to File His Certificate of Disability.

In his attempt to defeat the statute of limitations appellant contends that according to the charter before he could proceed with this action for a pension it was essential (1) that sworn certificates of disability should be filed by himself and three physicians, namely, one employed by himself, one appointed by the board and the police surgeon, and (2) that the board should have refused to act or had acted in an arbitrary manner; that inasmuch as no certificate had been filed he could not have instituted his suit prior to February 1, 1940. But there is neither allegation nor proof that such certificates were ever filed prior to February 1, 1940. When he filed his affidavit with the city treasurer on November 30, 1937, he might at the same time have filed his own certificate and that of his doctor showing his permanent disability. A denial of his pension by the board or its refusal to act would then have enabled him to maintain his action for mandate to enforce his retirement as provided in section 187 of the charter.

A cause of action accrues when a suit may be maintained, and the running of the statute of limitations cannot be delayed by the simple expedient of deferring the act of making demand or of delaying to do those acts preliminary to instituting legal action which are within the power of the claimant. Dillon v. Board of Pension Commissioners, 18 Cal.2d 427, 430, 116 P.2d 37, 136 A.L.R. 800; Barnes v. Glide, 117 Cal. 1, 48 P. 804; 59 Am.St.Rep. 153; Harrigan v. Home Life Insurance Company, 128 Cal. 531, 548, 58 P. 180, 61 P. 99; Osborn v. Hopkins, 160 Cal. 501, 506, 117 P. 519, Ann.Cas.1913A, 413; Williams v. Bergin, 116 Cal. 56, 61, 47 P. 877; Lattin v. Gillette, 95 Cal. 317, 319, 30 P. 545, 29 Am.St.Rep. 115; Reuter v. Pacific Mutual Life Insurance Company, 5 Cal.App.2d 333, 337, 43 P.2d 576; County of Los Angeles v. Metropolitan Casualty Insurance Company, 135 Cal.App. 26, 28, 26 P.2d 699. A claimant cannot suspend indefinitely the operation of the statute of limitations by not performing an act which the law requires as a condition to the maintenance of his action. If appellant had become so disabled on November 30, 1937, as to render it necessary for him to be retired, his action had accrued then. The contention that his action had not accrued because he had not filed his certificate and the physicians had not filed theirs showing his disability is without support in authority or reason. He swore then that he was permanently disabled, and in view of the evidence it must be presumed that the board would have performed its duty by designating a physician to examine and certify and that the duly appointed and acting police surgeon would likewise have performed his duty. Certainly they could not act prior to appellant's filing his certificate. Their acts were conditions subsequent to appellant's taking the first step. No allegation was made that the police surgeon or another physician appointed by the board filed a certificate of appellant's disability. Neither is there declaration of delay on the part of the board or of the police surgeon after appellant filed his certificate. The only allegation with reference to the board's action is the following: ‘that defendants have at all times refused and still refuses to order him retired from further service * * * or to pay or cause to be paid to him any sums whatever from said pension fund. In refusing * * * defendants have acted arbitrarily * * * upon the asserted ground that petitioner's rights * * * are barred by the statute of limitations.’ But by admitting such allegation respondents did not admit that the certificates were filed on February 1, 1940, or that they were ever filed.

It is the law of this case that the test to be applied in determining appellant's rights is: When did he become so disabled as to render his retirement necessary? The court has found on substantial evidence that he became so disabled on November 30, 1937. The date of February 1, 1940, is of no materiality. Appellant names it as the day he was first informed that his injuries were permanent. But he himself knew it on November 30, 1937. If his cause did not accrue until the police surgeon filed his certificate then he has stated no cause of action, for that fact was not alleged.

Inasmuch as he could not toll the statute by not filing the certificates it follows that appellant's action was barred.

Respondents Not Estopped to Plead the Statute.

Appellant contends that he was advised by specified city officials that he could not receive both the pension benefits provided by the charter for disabled firemen and those provided by the Workmen's Compensation Act; that by reason of his reliance upon such advice he did not proceed to obtain the pension. While he did receive such advice from a deputy city attorney in 1937 and 1938, the fact is that pursuant to advice received from his own privately employed attorney on September 12, 1938, appellant filed his application with the Industrial Accident Commission on April 13, 1939, after having discussed the question of the pension with his own attorney. Thus he was not relying upon the advice of city officials but upon his own decision. In July, 1939, he told another deputy city attorney that he would not waive his right to a pension when the same officer told him that if a substantial settlement was made of his workmen's compensation claim it would be necessary that he waive his right to receive a pension. Thus he knew the city's attitude with respect to his claim for a pension from July, 1939, to November 29, 1940, a term wholly within the statutory period computed from November 30, 1937. Within such time he had ample opportunity for the filing of his claim as well as his certificates of disability. Spencer v. City of Calipatria, 9 Cal.App.2d 267, 269, 49 P.2d 320. At the same time he was receiving the advice of his own attorney. No act was done or utterance voiced by any agent of the city within those months that was calculated to deceive appellant, to defer his demand or to prevent his presentation of a claim. That he was himself able to do is demonstrated by his actually having filed a claim in December, 1941.

In supprot of his contention that the statements and acts of the city officials estop the city from pleading an estoppel appellant cites Farrell v. County of Placer, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323; Garrison v. State, 64 Cal.App.2d 820, 149 P.2d 711; Katz v. Ruhlman & Co., Inc., 69 Cal.App.2d 541, 159 P.2d 426; Benner v. Industrial Accident Commission, 26 Cal.2d 346, 159 P.2d 24, and Carter v. City of Los Angeles, Cal.App., 181 P.2d 103.¹ A scrutiny readily discloses that in each of those cases the claimant was positively deceived by the representations of an agent or by an act upon the part of the debtor, and because of such deception delayed the filing of his claim. While such authorities furnish support under certain circumstances for an equitable estoppel, the general rule is that an estoppel will not be recognized against the state or its agencies. First Trust & Savings Bank v. City of Pasadena, 21 Cal.2d 220, 223, 130 P.2d 702; Aebli v. Board of Education, 62 Cal.App.2d 706, 724, 145 P.2d 601. Moreover, if it be conceded that agents of respondent city stated to appellant that he had more time within which to file his claim, such statement is a misrepresentation of law, a mere opinion upon a legal matter, and furnishes no basis for estoppel in the absence of a fiduciary relationship. Sacramento and San Joaquin Drainage District v. Ray L. Riley, 194 Cal. 624, 638, 229 P. 957; Smith v. Brown, 59 Cal.App.2d 836, 838, 140 P.2d 86; Haviland v. Southern California Edison Company, 172 Cal. 601, 608, 158 P. 328; Rheingans v. Smith, 161 Cal. 362, 365, 119 P. 494, Ann.Cas.1913B, 1140. There was no confidential relationship between appellant and the city officials. It could hardly be contended that the city attorney could have deceived appellant while the latter was acting upon the advice of his own counsel.

By unique dialectics appellant contends that the failure of the police surgeon to file a certificate of appellant's necessity of retirement prior to February, 1940, is conclusive proof that the latter's condition was not such as to necessitate his retirement prior to that date. He argues (1) that he had a right to rely upon the presumption that both the pension board and the police surgeon would properly perform their official duties; (2) that during ‘the period following my injury’ he was able to perform the light duty assignments; (3) that he offered his services for light duty work; (4) that he was denied the privilege by the ‘Chief’ because of an unfriendly basis arising from personal differences; (5) that one doctor thought it would be two months before he could return to duty while another thought it would be a few months; (6) that prior to his operation in October, 1939, he was able to walk around; (7) that in 1939 three physicians advised surgery and hoped that thereafter he could return to his duties; (8) that although he regained consciousness four weeks after the operation on October 24, 1939, they told him nothing of his bad infection and permanent disability until February 1, 1940. Whatever may be the virtue of such declarations, neither singly nor collectively did they induce the trial court to determine otherwise than that appellant was permanently disabled November 30, 1937, as he averred and as borne out by his statements to the several examining physicians and by their opinions. The presumption that the board and the surgeon would do their duties does not operate so far as to say that either would act without the necessity of having such duty brought to their attention by some appropriate act on the part of appellant. At no time did he seek a physical examination either as a prerequisite to return to duty or to obtain a certificate of permanent disability.

The contention that the statements in the affidavits were admissible for the purpose of impeachment only finds no support in law. Any statement made by a litigant may be properly considered as an admission against interest as well as an impeachment of his testimony. (Card v. Boms, 210 Cal. 200, 204, 291 P. 190), and such admissions may well be the basis of the court's finding. Hall v. The Emily Banning, 33 Cal. 522, 524.

The judgment is affirmed.

FOOTNOTES

1.  Hearing granted.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.