10 Cal.2d 567, 15785, Pacific E. I. Co. v. Industrial Acc. Com.

Docket Nº:15785
Citation:10 Cal.2d 567, 75 P.2d 1058
Opinion Judge:[10] Edmonds
Party Name:Pacific E. I. Co. v. Industrial Acc. Com.
Attorney:[7] W. N. Mullen for Petitioner. [8] Everett A. Corten and Keith & Creede for Respondents. [9] Hartley F. Peart and Howard Hassard for Respondent Physicians.
Case Date:January 31, 1938
Court:Supreme Court of California

Page 567

10 Cal.2d 567

75 P.2d 1058




S. F. No. 15785.

Supreme Court of California

January 31, 1938

In Bank.

Page 568

[Copyrighted Material Omitted]

Page 569


W. N. Mullen for Petitioner.

Everett A. Corten and Keith & Creede for Respondents.

Hartley F. Peart and Howard Hassard for Respondent Physicians.


[75 P.2d 1059] EDMONDS, J.

The petitioner by this proceeding for review, seeks to annul an award of compensation made by the Industrial Accident Commission upon the ground that at the time the employee was injured, he was subject to the workmen's compensation law of Massachusetts. The defense of the insurer is that Massachusetts has exclusive jurisdiction of the controversy.

Dewey & Almy Chemical Company is a Massachusetts corporation, licensed to do business in California. Its principal offices are in Cambridge, Massachusetts, and one of its several factories is at Oakland, California. The business of the company is managed by its executive officers in Massachusetts and a research laboratory is maintained there.

Kenneth Tator, the injured employee, formerly lived in Portland, Oregon. He left there to attend Massachusetts Institute of Technology, from which he graduated. Since January, 1930, he has been employed by the Dewey & Almy Company as chemical engineer and research chemist. The contract of employment (which is in writing but does not appear in the record) was made in Cambridge, and Mr. Tator has worked there in the company's research laboratory except at various times when he has been sent elsewhere on company business.

In September, 1935, one of the principal customers of the company made a complaint about a chemical compound manufactured at the Oakland plant. Following a conference in New York between officers of the company and this customer, the company's general manager ordered Mr. Tator, then at the laboratory in Cambridge, to go to Oakland and investigate the situation. Mr. Tator did so, and suggested several changes in the machinery of the plant. The evidence shows that he made written reports from time to time concerning his work. These reports were addressed to the manager of

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the Oakland plant, but copies were sent to the home office in Cambridge and Mr. Tator received comments and suggestions from his superiors there.

It is clear that throughout this time he was subject to the control and direction of the officers of the company at Cambridge, although his method of procedure was subject to the approval of the manager of the Oakland factory, who assigned him a place to work, named men to assist him, and had limited authority to accept or reject the suggestions he made regarding changes in equipment. However, these were matters of detail. Mr. Tator had been sent to Oakland to find out why the company's product manufactured there did not meet requirements, and to remedy the difficulty. His status in California is defined very clearly by his own testimony. Speaking of the trouble at the Oakland plant, he said: "I was brought out there to solve the thing by my technical knowledge if I could. ... I was advising the Oakland branch from a technical standpoint. ... When I had found the trouble and rectified it, I was to ... notify Cambridge and await orders. ... There was no thought of staying out here permanently."

While he was in California Mr. Tator remained on the payroll of the company in Massachusetts and his salary as it accrued was deposited to his account in a bank in Massachusetts. He was given an advance before he left Cambridge to meet his traveling and other expenses in California, and a further sum was advanced to him by the Oakland office. At the time of the hearing these expenses had been billed to the Oakland office and the local manager understood that a charge would later be made for Mr. Tator's salary while he was in California.

At the time of Mr. Tator's injury, the Dewey & Almy Company carried workmen's compensation insurance covering its operations in Massachusetts and also in California. The Hartford Accident and Indemnity Company insured it by a policy under which the obligations of the insurer include the workmen's compensation law of Massachusetts (G. L. (Ter. Ed.) C. 152) "and none other". This policy names Cambridge and Walpole, Massachusetts, as the location of all work places of the employer. A policy issued by the petitioner insured the chemical company against the obligations imposed by the California Workmen's Compensation, Insurance and Safety Act of 1917 (Stats. 1917, p. 831, as amended)

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and names the work places of the employer as the factory in Oakland "and elsewhere in the State of California".

After being injured, Mr. Tator made an application to the Industrial Accident Commission of California for compensation, naming Dewey & Almy Chemical Company as his employer and the petitioner as the employer's insurance carrier. [75 P.2d 1060] The latter filed an answer denying the jurisdiction of the commission to determine the claim for the reason that he was an employee of Dewey & Almy Chemical Company in its operations in the state of Massachusetts and was not covered by the workmen's compensation insurance policy of the petitioner. It is further alleged "that the applicant is a resident of the State of Massachusetts and entered his employment therein, and not having rejected the extraterritorial effect of the Workmen's Compensation Act of the State of Massachusetts, thereby did elect, in the event of his injuries sustained by him outside the confines of the State of Massachusetts, to accept the benefits of said State, and such an agreement was a part of his contract to hire".

Prior to the hearing the Hartford Company was joined as a defendant. The commission found that Mr. Tator sustained injury at Oakland, California, while employed as a chemical engineer "by the Pacific factory of the Dewey & Almy Chemical Company, a Massachusetts corporation". It determined that this injury caused permanent disability which it rated at 42 1/4 per cent of total, and awarded compensation therefore against the petitioner. It also found that the Hartford Accident & Indemnity Company was not the insurance carrier of the employer and dismissed it and the employer from all liability.

The workmen's compensation law of Massachusetts provides: "An employee of an insured person shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury therein occurring, to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right, ... If an employee who has not given notice of his claim of common law rights of action, under section twenty-four, or who has given such notice and has waived the same, receives a personal injury arising out of and in the course of his employment, or arising out of an ordinary risk of the street while actually engaged, with his employer's authorization, in the business

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affairs or undertakings of his employer, and whether within or without the commonwealth, he shall be paid compensation by the insurer, as hereinafter provided, if his employer is an insured person at the time of the injury; provided, that as to an injury occurring without the commonwealth he has not given notice of his claim of rights of action under the laws of the jurisdiction wherein such injury occurs or has given such notice and has waived it." It is conceded that no notice was given by Mr. Tator pursuant to the provisions of this law, and the petitioner asserts that under such circumstances Massachusetts has exclusive jurisdiction to award compensation for the injury.

In the leading case of Bradford Electric Light Co. v. Clapper, 286 U.S. 145 [52 S.Ct. 571, 76 L.Ed. 1026, 82 A.L.R. 696], an employee of a Vermont corporation was killed while working in New Hampshire. He resided in Vermont and had been employed in that state as a lineman for emergency service either there or in New Hampshire. The accident occurred when he was sent to the New Hampshire substation to make some repairs. The employer, invoking the full faith and credit clause, set up a special defense: It pleaded that the action was barred by the provisions of the workmen's compensation act of Vermont which as in effect at the time of...

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