Busick v. Workmen's Comp. Appeals Bd.

Decision Date20 September 1972
Citation500 P.2d 1386,104 Cal.Rptr. 42,7 Cal.3d 967
CourtCalifornia Supreme Court
Parties, 500 P.2d 1386 Ruth Marie BUSICK, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and Albright Express Company et al., Respondents. ALLSTATE INSURANCE COMPANY, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and Employers Mutual Liability Insurance Company of Wisconsin, Respondents. L.A. 29862, 29863. In Bank

Alpern & Vallier, Dintzer, Rosen & Zax, Daniel L. Dintzer and Cary A. Rosen, Los Angeles, for petitioner in No. 29862.

Zonni, Ginocchio & Taylor, and Marco J. Zonni, Los Angeles, for petitioner in No. 29863 and respondent in No. 29862.

Rupert A. Pedrin, San Francisco, Gabriel L. Sipos, Los Angeles, Lionel K. Hvolboll, San Francisco, Samuelsen, Bolson, Whitehead & Benes and Charles C. Ringwalt, San Bernardino, for respondents.

SULLIVAN, Justice.

In these consolidated proceedings, presented by separate petitions upon a single record, petitioner Ruth Marie Busick (hereafter petitioner) seeks review and annulment of the opinion and decision after reconsideration, and petitioner Allstate Insurance Company (hereafter Allstate) seeks review and annulment of the order denying reconsideration of the Workmen's Compensation Appeals Board (hereafter Board). 1

We first set forth the facts giving rise to the claim. In February 1967 petitioner was hired as a bookkeeper by Albright Express, owned by A. Chase Albright as a sole proprietor. 2 Mrs. Albright kept the company's books and sometimes signed the payroll checks. In May 1967, Joseph Rasbidoski began working for the company as a salesman and dispatcher. The company also employed drivers and other office personnel.

In the spring of 1968, petitioner and Rasbidoski began to have personal difficulties with the Albrights, and by the following July were making plans to form a partnership and start their own trucking business.

On Friday, August 9, 1968, petitioner informed Mrs. Albright that she wanted to leave the company because of the tensions of her job. In response, Mrs. Albright suggested that petitioner take a week or two of vacation to reconsider her decision. Petitioner agreed. However, she and Rasbidoski proceeded to carry out their plans for a new business. Within a few days they established the J.R.L. Trucking Company and purchased three trucks for it. Immediately thereafter Rasbidoski quit his job with Albright Express and about the same time two of Albright's truck drivers also quit to work for petitioner's new business. The J.R.L. Trucking Company then commenced hauling operations, acquiring some of Albright's customers who transferred their business to the new firm.

Petitioner, Rasbidoski and the truck drivers were owed wages by Albright Express and upon inquiry were told that Mr. Albright required them to pick up their final payroll checks in person at his office. On August 23, 1968, petitioner and Rasbidoski went there together. As they walked up to the establishment, they were confronted by Mr. Albright, who asked, 'Are you all prayed up?' He then shot petitioner and Rasbidoski and killed himself. Each of the two former employees was seriously injured.

Petitioner sought benefits under the workmen's compensation laws upon the theory that she had sustained an injury arising out of and in the course of her employment by Albright Express when she went to be paid for her past services. She also brought a civil action against Mr. Albright's executrix to recover damages for assault and battery. We proceed to set forth the pertinent chronology of all of these proceedings upon which, as we shall explain, the main issue before us turns.

On September 17, 1968, petitioner filed with the Board an application for adjudication of claim. On April 11, 1969, she commenced a civil action for damages against Mr. Albright's executrix. 3 On October 3, 1969, a trial referee of the Board issued findings and award, finding that petitioner's injury did not arise out of and occur in the course of the employment with Albright Express, awarding petitioner reimbursement for certain medical-legal costs against Allstate, and ordering that petitioner take nothing further against the express company or Allstate. On November 18, 1969, the Board granted petitioner's petition for reconsideration. On April 14, 1970, in the civil actions for damages brought against Mr. Albright's estate by petitioner and Rasbidoski and consolidated for trial, the court, sitting without a jury, entered a judgment 4 in favor of 'plaintiffs jointly' in the amount of $500,000 general damages and $150,000 punitive damages. 5 Notice of entry of judgment was mailed to the parties by the clerk of the court on the same day. (See Code Civ.Proc. § 664.5.) No appeal was taken and on June 15, 1970, said judgment became final. (See Cal. Rules of Court, rules 2(a), 45(a); Code Civ.Proc. § 12a.) Meanwhile, in the workmen's compensation proceeding, on May 6, 1970, the Board issued its opinion and decision after reconsideration which in effect affirmed the findings and award of the trial referee. 6 The instant petitions for a writ of review followed.

The Busick Petition

The positions of the parties in respect to this petition may be summarized as follows. Petitioner contends that the Board's decision that her injury did not arise out of and occur in the course of her employment is without any support in the evidence. She argues that the act of receiving compensation for services is one within the course of employment, particularly when, as here, it is done pursuant to the direction of the employer. Allstate, on the other hand, contends that the shooting was the result of personal grievances and, therefore, not employment related; that, assuming petitioner returned to her former employer's place of business merely to obtain her paycheck, such act was not one within the course of her former employment; and that, in any event, the judgment of the superior court is res judicata on the issue of whether the assault by Albright on petitioner arose out of and occurred in the course of the employment. We have concluded that, as Allstate claims, the superior court judgment should be given res judicata effect precluding recovery before the Board and that, therefore, the decision of the Board should be affirmed. In view of this conclusion, we deem it unnecessary to reach the remaining issues.

'The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.' (Bernhard v. Bank of America Nat. Trust & Savings Assn. (1942) 19 Cal.2d 807, 810, 122 P.2d 892, 894; see Martin v. Martin (1970) 2 Cal.3d 752, 758, 87 Cal.Rptr. 526, 470 P.2d 662.) We have said that the doctrine 'rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. Public policy and the interest of litigants alike require that there be an end to litigation.' (Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 637, 134 P.2d 242, 243; see generally Note, Developments in the Law--Res Judicata (1952) 65 Harv.L.Rev. 818.) As Witkin puts it, 'The doctrine of Res judicata gives certain Conclusive effect to a Former judgment in subsequent litigation involving the same controversy.' (Original italics.) (4 Witkin, Cal.Procedure (2d ed. 1971) Judgment, § 147, p. 3292.)

Generally speaking, under the above doctrine a valid final judgment, if in favor of the plaintiff, merges the cause of action in the judgment (Edmonds v. Glenn-Colusa Irr. Dist. (1933) 217 Cal. 436, 445--446, 19 P.2d 502; Hatch v. Bank of America Nat. Trust & Sav. Assn. (1960) 182 Cal.App.2d 206, 210, 5 Cal.Rptr. 875; California Nat. Supply Co. v. Porter (1927) 83 Cal.App. 758, 761--763, 257 P. 161; 4 Witkin, Supra, Judgment, § 189, p. 3329; Rest., Judgments (1942) § 47), 7 and, if in favor of the defendant, constitutes a bar to any further suit on the same cause of action (Panos v. Great Western Packing Co., Supra, 21 Cal.2d 636, 639, 134 P.2d 242; 4 Witkin, Supra, Judgment, § 192, p. 3332; Rest., Judgments, Supra, § 48). 8

We proceed to analyze the effect of res judicata as a merger in the context of situations where the plaintiff has one of two mutually exlcusive remedies for the enforcement of a single cause of action. We begin with section 64 of the Restatement of Judgments which states: 'Where the plaintiff obtains judgment for the payment of money against the defendant in an action to enforce one of two or more alternative remedies, he cannot thereafter maintain an action to enforce another of the remedies.' (See Slater v. Shell Oil Co. (1943) 58 Cal.App.2d 864, 869, 137 P.2d 713; United States v. Temple (7 Cir., 1962) 299 F.2d 30, 32.) This rule implements the general principles of res judicata and prevents multiple recoveries by a plaintiff. In contradistinction to the doctrine of election of remedies, it gives conclusive effect to the Judgment in plaintiff's favor, and does not consider plaintiff's conduct in choosing a remedy (Rest., Judgments, Supra, § 64, com. a; § 65, com. f). More specifically, when a plaintiff has two mutually exclusive remedies, and judgment is rendered in his favor giving him one of the remedies, he cannot thereafter maintain an action for the other. For example, if a plaintiff is entitled to damages for personal injuries either under a federal statute, if the injury arose out of employment in Interstate commerce, or under a state statute, if it arose out of employment in Intrastate commerce, a judgment for the plaintiff under the federal statute would preclude a later action under the state statute and vice versa. (Id., § 64, com. g.)

We point out, however, that this rule...

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