Carter v. Superior Court In and For Los Angeles County

• Decision Date: 18 June 1956
• Citation: 142 Cal.App.2d 350,298 P.2d 598
• Court: California Court of Appeals Court of Appeals
• Parties: O. G. CARTER, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY of LOS ANGELES, Respondent. Sam Greenwood, Real Party in Interest. Civ. 21753.

Page 598

298 P.2d 598

142 Cal.App.2d 350

O. G. CARTER, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY of LOS ANGELES, Respondent Sam Greenwood, Real Party in Interest.

Civ. 21753.

District Court of Appeal, Second District, Division 1, California.

June 18, 1956.

Eugene S. Ives, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, Thomas Carver, Deputy County Counsel, Los Angeles, for respondent.

NOURSE, Justice pro tem.

Petitioner is the defendant in an action to recover damages for an alleged assault and battery, commenced by one Greenwood, the real party in interest. ¹

The relevant facts established by the record before us are:

Petitioner is the owner and manager of a restaurant in the city of Long Beach. In August of 1955, Greenwood was in petitioner's employ as a dishwasher, and while he was engaged in the performance of his duties petitioner assaulted him. This assault occurred on the 27th of August, 1955.

On September 13, 1955, Greenwood filed with the Industrial Accident Commission an application for hearing by which he sought compensation pursuant to the provisions of division 4 of the Labor Code (Workmen's Compensation and Insurance) for the injuries sustained in the assault. In this application Plantation Room, the fictitious name under which petitioner was engaged in business, was named as the employer; the New Amsterdam Casualty Company was named as petitioner's compensation insurance carrier, and it was alleged that the assault was committed by Greenwood's foreman, who was not identified by name.

On December 22, 1955, Greenwood on the one hand, and petitioner and his compensation insurance carrier on the other, entered into an agreement of compromise and release on a form supplied by the Industrial Accident Commission, and which conformed to section 5003 of the Labor Code. By the terms of this agreement the parties agreed 'to settle any and all claims on account of' the injuries sustained by the plaintiff in the above-mentioned assault in consideration of the payment to Greenwood of the sum of $850. Greenwood further agreed that said agreement, upon being approved by the Industrial Accident Commission and payment being made, should constitute a release and discharge of all claims and causes of action which might arise out of his injuries.

After the filing of the agreement with the Industrial Accident Commission it, pursuant to the provisions of section 5002 of the Labor Code, approved the agreement and made its award in accordance with the terms thereof. By this award it ordered that of the sum of $850, $100 be paid to the applicant's attorney; $58 to one Ealey, a lien claimant; $69.43 to the State of California, Department of Employment, Division of Disability and Hospital Benefits; certain amounts to the City of Long Beach and to doctors who had rendered services to Greenwood for his injuries, and the balance $490.97, to Greenwood. Payments were made by petitioner's insurance carrier in accordance with the award and the award is final, subject only to the continuing jurisdiction of the Commission pursuant to section 5803 of the Labor Code.

On November 21, 1955, Greenwood commenced an action in the respondent court against petitioner to recover damages both compensatory and punitive, the cause of action being based upon the same assault and upon the same injuries as was his application for compensation filed with the Industrial Accident Commission. To this complaint petitioner filed an answer in which, as a 3rd separate defense, he pleaded the fact that Greenwood had filed the claim above mentioned before the Industrial Accident Commission and that that claim had been determined by the Commission by approval of the settlement agreement; that the Industrial Accident Commission had assumed jurisdiction, and by so doing had deprived the superior court of jurisdiction.

Upon motion of Greenwood, respondent court struck this defense from petitioner's answer upon the ground that it was sham and irrelevant. The superior court will, unless restrained by this court, proceed to try the subject action.

Petitioner here seeks a writ of prohibition commanding the respondent court to desist from further proceedings in this action. In the alternative, he seeks a writ of mandate to compel the respondent court to set aside its order striking petitioner's 3rd separate defense from his answer, and to reinstate said defense.

It is now settled in this state that an employee who sustains an injury which is intentionally inflicted by his employer is not relegated to a claim for compensation before the Industrial Accident Commission, but may treat his injury as not having arisen out of and in the course of his employment; and he may, therefore, maintain an action at law to recover damages both compensatory and exemplary. Conway v. Globin, 105 Cal.App.2d 495, 233 P.2d 612. We do not understand petitioner to assert that Greenwood might not have commenced and maintained this action in the superior court, but rather as asserting that Greenwood could elect either to maintain an action at law or to seek workmen's compensation, and that having invoked the jurisdiction of the Industrial Accident Commission and prosecuted his claim there to final judgment, he cannot maintain the subject action in the respondent court.

In Conway v. Globin, supra, 105 Cal.App.2d at page 497, 233 P.2d at page 614, Mr. Justice Peek, speaking for the court, said in part: '* * * the weight of authority is that 'where an employer inflicts the intentional injury upon his employee, the injured person may sue at common law for damages or accept the benefits under Workmen's Compensation Law. * * *'' [emphasis added], and in support of this he cites numerous decisions from other jurisdictions. This statement was, however, clearly dictum, inasmuch as in the case before the court the plaintiff had not, nor had the defendant, his employer, commenced any proceedings before the Industrial Accident Commission, and the question as to whether or not the plaintiff had a choice of remedies was not involved or in any wise before the court for decision. An examination of the cases cited by the court, and which are relied upon by petitioner here, shows that in each of them in which the rule quoted by the cited case is announced, the statement was dictum, inasmuch as in none of them was the question of whether the plaintiff had a choice of remedies either involved or necessary to the decision.

It seems to us, however, that an employee who during the course of his employment sustains an injury which is intentionally inflicted on him by his employer, does have a choice of remedies. He may assert that the injury occurred by reason of a risk or condition incident to the employment, and seek compensation before the Industrial Accident Commission; or he may assert that his injury did not arise out of a risk or condition incident to his employment, and seek damages in an action at law. In neither case would it lie in the mouth of his employer, who had intentionally inflicted the injury, to assert the contrary of that which is asserted by the employee.

This does not mean, however, that the employee may pursue both remedies and recover both compensation and damages; for if he establishes that the injury occurred by reason of a risk or condition incident to the employment, then only the Industrial Accident Commission has jurisdiction to grant him relief, while if he establishes that it did not arise out of such a risk or condition, then only the courts have jurisdiction to award him relief, Lab.Code, sec. 3600; Scott v. Industrial Accident Comm., 46 Cal.2d 76, 293 P.2d 18.

Plaintiff having had a choice of remedies he, by pursuing his remedy before the Industrial Accident Commission to judgment and accepting the fruits of that judgment, made a binding election of a remedy and precluded himself from prosecuting the subject action in the respondent court, 18 Am.Jur., sec. 20.

We do not wish to be understood as holding that the mere filing of a claim for compensation with the Industrial Accident Commission would bar the subsequent filing of an action at law for damages, or that the mere filing of an action at law for damages would preclude the subsequent filing of a claim for compensation. Undoubtedly an injured employee who is in doubt as to whether his cause of action is one for compensation or one for damages, and therefore in doubt as to which tribunal--that is, the Industrial Accident Commission on the one hand or the courts on the other--has jurisdiction of his cause of action, may submit this question to either tribunal. If the tribunal to which he submits it holds that it does not have jurisdiction, then he is free to proceed before the other tribunal; but if it rules that it does have jurisdiction, then it and it only can proceed, Scott v. Industrial Accident Comm., supra, and there is nothing to preclude the filing of a claim before a second tribunal while the question of jurisdiction yet remains undetermined in the tribunal whose jurisdiction is first invoked and which alone has the right to proceed, Scott v. Industrial Accident Comm., supra.

The facts pleaded in the defense stricken by the respondent court were sufficient to have permitted petitioner to have proved this election of remedies as a bar to the action.

There is another reason why the facts pleaded in the stricken defense constituted a meritorious defense to the action. The question of whether or not an injury is one which arises out of the employment, and is therefore one which is within the exclusive jurisdiction of the Industrial Accident Commission, is a question of fact. Greenwood, by filing his application with the Commission and by...