Barney v. City of Lincoln

• Decision Date: 31 March 1944
• Docket Number: 31708.
• Citation: 13 N.W.2d 870,144 Neb. 537
• Parties: BARNEY v. CITY OF LINCOLN.
• Court: Nebraska Supreme Court

13 N.W.2d 870

144 Neb. 537

BARNEY v. CITY OF LINCOLN.

No. 31708.

Supreme Court of Nebraska

March 31, 1944

Syllabus by the Court.

1. An action brought to enforce the provisions of a pension law is an action upon a liability created by statute and, in the absence of a limitation period in the act itself, is barred in four years as provided by section 20-206 Comp.St.1929.

2. An action to determine the liability of a city for the payment of pension benefits necessarily precedes and is distinct from an action to recover delinquent installments after the pension has been granted.

3. A cause of action accrues when a suit may be maintained thereon and the statute of limitations begins to run at that time.

4. The cause of action to establish plaintiff's right to a pension accrued at the time he became totally and permanently disabled, and plaintiff having failed to bring his action within four years thereafter, the statute of limitations is a bar.

5. Where the right to a pension has been established, the statute operates against delinquent payments from the date each payment accrues.

Max Kier and A. A. Whitworth, both of Lincoln, for appellant.

Maxwell V. Beghtol and J. Lee Rankin, both of Lincoln, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, YEAGER, CHAPPELL, and WENKE, JJ.

CARTER Justice.

Plaintiff commenced this action to recover pension benefits from the city of Lincoln by virtue of the provisions of sections 2439 and 2441, Comp.St.1922. From a verdict for $4,093.87, and a judgment entered thereon, the defendant appeals.

The record shows that plaintiff entered the employ of the city of Lincoln as a paid fireman on December 10, 1923, and remained continuously in that employment until November 18, 1928, at which time he alleges that he became totally and permanently disabled as the result of an injury received in line of duty. For the purposes of this opinion it will be assumed that the plaintiff was so disabled on and after November 18, 1928.

The record further discloses that on July 27, 1942, plaintiff filed his application for a pension with the defendant, which application was disallowed on November 30, 1942. On December 12, 1942, this action was filed. The defendant, among other defenses not material to this decision, pleaded the statute of limitations. Since a proper application of the statute of limitations controls the result, we will confine our discussion to that question.

The liability, if any, of the defendant arises by virtue of the provisions of sections 2439 and 2441, Comp.St.1922. Consequently, it is a liability created by statute governed by the following provisions of our general statute on the subject of limitations of actions:

"Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued." Comp.St.1929, sec 20-206.

"Within four years, an action upon a contract, not in writing, expressed or implied; an action upon a liability created by statute, other than a forfeiture or penalty." Comp.St.1929, sec. 20-206.

Defendant urges that plaintiff's right of action accrued on November 18, 1928, and that unless action be commenced within four years thereafter it is barred. We think the defendant's position is correct.

An authoritative text states the rule as follows: "As in other cases generally, the cause of action upon a claim for a pension accrues when a suit may be maintained thereon, and the statute of limitations begins to run at that time. It may be observed, in this connection, that an action to determine the existence of the right to a pension necessarily precedes and is distinct, as regards the commencement of the period of limitation, from an action to recover instalments which have fallen due after the pension has been granted. The view taken in some cases is that liability for the payment of a pension is to be regarded as an obligation created by statute within the operation of a general statute of limitations." 40 Am.Jur. 991.

The foregoing rule was correctly applied in Dillon v. Board of Pension Commissioners, 18 Cal.2d 427, 116 P.2d 37, 39, 136 A.L.R. 800, wherein the court in a similar case said:

"The right to receive periodic payments under a pension is a continuing one (see Dryden v. Board of Pension Com'rs, 6 Cal.2d 575, 59 P.2d 104), and any time limitation upon the right to sue for each instalment necessarily commences to run from the time when that instalment actually falls due. Before plaintiff can claim these periodic payments, however, she must establish her right to a pension. If the Board of Pension Commissioners refuses to acknowledges this right upon application, she can properly bring an action of mandamus in the superior court to review the soundness of the Board's decision, and to establish as a matter of law that she is entitled to the status of a pensioner. *** An action to determine the existence of the right thus necessarily precedes and is distinct from an action to recover instalments which have fallen due after the pension has been granted.

"A cause of action accrues when a suit may be maintained thereon, and the statute of limitations therefore begins to run at that time. *** The cause of action to establish the right to a pension accrued to plaintiff at the time of her husband's death. At any time following the death she could demand a pension from the board and upon refusal could maintain a suit to enforce such action. The city charter requires an application to the board before court proceedings can be instituted, but it is established in California that a claimant cannot delay the running of the statute of limitations by postponing the time of demand upon the proper...