De Cruz v. Reid

• Decision Date: 19 August 1968
• Citation: 70 Cal.Rptr. 550,69 Cal.2d 217,444 P.2d 342
• Court: California Supreme Court
• Parties: , 444 P.2d 342 Bertha Merlos Vda. DE CRUZ et al., Plaintiffs and Respondents, v. David Wallace REID et al., Defendants and Appellants. L.A. 29558.

Page 550

70 Cal.Rptr. 550

69 Cal.2d 217, 444 P.2d 342

Bertha Merlos Vda. DE CRUZ et al., Plaintiffs and Respondents, v. David Wallace REID et al., Defendants and Appellants.

L.A. 29558.

Supreme Court of California,

In Bank.

Aug. 19, 1968.

Rehearing Denied Sept. 18, 1968.

Murchison, Cumming, Baker & Velpmen, Howard C. Velpmen and Henry F. Walker, Los Angeles, for defendants and appellants.

Eckhardt & Kearney, Olen G. Miller and Matthew M. Kearney, San Bernardino, for plaintiffs and respondents.

Edward I. Pollock, Los Angeles, Robert E. Cartwright, San Francisco, Theodore A. Horn, Los Angeles, Robert G. Beloud, Upton, and Leonard Sacks, Los Angeles, as amici curiae on behalf of plaintiffs and respondents.

SULLIVAN, Justice.

In this action for wrongful death brought by the widow and three minor children of an agricultural worker, defendants David Wallace Reid and Don Dale appeal from a judgment entered upon a jury verdict in favor of plaintiffs in the sum of $40,000.

Decedent was employed on the Kitigawa Ranch as a 'pusher' or 'straw boss.' Kitigawa ordered fertilizer from a chemical company which contracted with defendant Dale to haul it to the ranch. On April 9, 1964, defendant Reid, an employee of Dale, drove the latter's equipment to the chemical company, picked up a load of fertilizer, and left to deliver it, accompanied by one Cuesta, a chemical company employee who was to show Reid where the deliveries were to be made.

The Dale equipment consisted of a tractor, a flatbed semitrailer and a flatbed pull-trailer connected with the semitrailer by a tongue, leaving a space of about 4 1/2 feet between the two trailers. The tractor was equipped with an adjustable mirror on each side and a handhold behind each door of the cab for use in climbing into or behind the cab, but it was not equipped with handholds or safety rails along the back of the cab. The cab had a rear window measuring about 8 inches by 16 inches. The flatbed trailers were loaded with sacks of fertilizer about 2 feet high, secured by ropes.

After making a delivery at another ranch, Reid arrived at the Kitigawa establishment which actually consisted of two separate ranches, the home ranch and the Zane Grey ranch, about three-fourths of a mile apart. After Reid and Cuesta began to unload the pull-trailer at the home ranch they were assisted by a ranch crew of which decedent was a member.

While a portion of the fertilizer was being unloaded at the home ranch, a supervisor drove Reid to the Zane Grey ranch and showed him where the remainder was to be delivered. The supervisor also pointed out to him a sandy spot inside the ranch entrance where trucks had become stuck in the past and told Reid to speed up when he reached this point.

Reid then returned to the home ranch, where the ranch crew were finishing the first part of the unloading. The ranch supervisor told them that when this was completed, they were to go to the Zane Grey ranch in a Kitigawa truck in order to unload the remainder. The entire crew, with the exception of decedent, did as directed. Reid and Cuesta followed in the Dale equipment, with Reid driving. When he reached the entrance to the Zane Grey ranch, Reid accelerated the truck in order to get through the sandy area. Decedent who was riding on the front end of the pull-trailer fell off at this point and the wheels of the trailer ran over his body.

Plaintiffs, as dependents of decedent, filed a claim for death benefits with the Industrial Accident Commission (now Workmen's Compensation Appeals Board). (Lab.Code, §§ 4700--4705.) ¹ This claim was settled for the sum of $18,000 and the agreement of compromise and release was duly approved by the commission. (§§ 5000--5004.) The agreement provided in relevant part: 'As part consideration of this compromise and release the defendants Kitigawa ranches and Mission Insurance Co. (the employer's compensation insurer) are waiving any right to subrogation as part consideration for this compromise and release.'

Plaintiffs as decedent's heirs also commenced the present action for wrongful death. Their complaint is in two counts, the first alleging that defendants were negligent in the maintenance and operation of their truck and trailers, and the second that they were negligent in failing to furnish decedent with a safe place in which to work (§§ 6400--6403). At trial plaintiffs, in order to show the damages sustained by them as the result of decedent's death, introduced evidence of his contributions to their support, the circumstances of his family life, and his life expectancy together with that of his wife. Thereafter defendants attempted without success to introduce evidence of plaintiffs' claim before the Industrial Accident Commission and of the $18,000 received by them as a result of the compromise and release made with decedent's employer. ²

Defendants' principal contention before us is that the court erred in excluding the above evidence and thereby permitted plaintiffs to make a 'double recovery.' They argue that under Witt v. Jackson (1961) 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641, and cases following Witt, if for any reason the employer is not entitled to recoup compensation or death benefits paid to the employee or his dependents, the latter in any action against a third party tortfeasor may recover as damages only the excess over the amount of such compensation or other benefits paid.

When an employee's injuries or death are compensable under the Workmen's Compensation Act, the right of the employee or his dependents, as the case may be, to recover such compensation is the exclusive remedy against the employer. (§ 3601; Witt v. Jackson, supra, 57 Cal.2d 57, 69, 17 Cal.Rptr. 369, 366 P.2d 641.) However, the claim for such compensation does not affect the claim or right of action of the employee or his dependents 'for all damages proximately resulting from such injury or death against any person other than the employer.' (§ 3852; ³ Jacobsen v. Industrial Acc. Com. (1931) 212 Cal. 440, 447--448, 299 P. 66; Castro v. Fowler Equipment Co. (1965) 233 Cal.App.2d 416, 420, 43 Cal.Rptr. 589; Tate v. Superior Court (1963) 213 Cal.App.2d 238, 248, 28 Cal.Rptr. 548; see 2 Hanna, California Law of Employee Injuries and Workmen's Compensation (2d ed. 1967) § 23.01; California Workmen's Compensation Practice (Cont. Ed. Bar. 1963) p. 599.)

The Workmen's Compensation Act provides that an employer ⁴ may recoup compensation or death benefits paid to or on behalf of an employee or the dependents of an employee who has sustained an industrial injury or death, as the case may be, caused by a third party tortfeasor. We have said that such statutory provision is 'merely a legislative recognition of the equitable doctrine of subrogation, * * *' (Western States etc. Co. v. Bayside L. Co. (1920) 182 Cal. 140, 148, 187 P. 735, 738; see also, California Workmen's Compensation Practice (Cont. Ed. Bar 1963) p. 595.) In Witt v. Jackson, supra, 57 Cal.2d 57, 69, 17 Cal.Rptr. 369, 376, 366 P.2d 641, 648, we pointed out that 'There are three ways in which an employer who becomes obligated to pay compensation to an employee may recover the amount so expended against a negligent third party. He may bring an action directly against the third party (Lab.Code, § 3852), join as a party plaintiff or intervene in an action brought by the employee (Lab.Code, § 3853), or allow the employee to prosecute the action himself and subsequently apply for a first lien against the amount of the employee's judgment, less an allowance for litigation expenses and attorney's fees (Lab.Code, § 3856, subd. (b)).' We there held, however, that the employer's right to recover against the third party tortfeasor is defeated when the employee's injuries are caused by the concurring negligence of the employer and that in such circumstances, whether the action is brought against him by the employer or the employee, the third party, upon establishing such concurrent negligence, is entitled to have the judgment against him reduced by the amount of compensation paid to the injured employee. (Witt v. Jackson, supra, pp. 71--73, 17 Cal.Rptr. 369, 366 P.2d 641.)

In the case at bench defendants neither introduced nor offered any evidence bearing upon the concurrent negligence of decedent's employer, let alone any evidence that such negligence proximately caused decedent's death. (See Harness v. Pacific Curtainwall Co. (1965) 235 Cal.App.2d 485, 489--490, 45 Cal.Rptr. 454.) Accordingly, they did not bring themselves within our holding in Witt requiring a reduction of the judgment.

Defendants nevertheless argue that according to the principle underlying our holding in Witt the injured employee or his dependents in a death case are entitled to be made whole by the receipt of compensation benefits 'plus any damages in excess thereof'; that if for any reason the employer is unable to recoup the benefits paid, the employee can recover only the excess; and that where, as here, the injured employee or his dependents recover judgment against the third party tortfeasor for the full amount of his or their damages without any reduction based on the employer's concurrent negligence and the employer waives all reimbursement of compensation benefits paid by him, the injured employee or his dependents secure an impermissible double recovery. In essence defendants contend that even if the employer is Not negligent, his waiver of right of reimbursement must inure to the benefit of the third party tortfeasor rather than of the injured employee, and that the judgment against the third party tortfeasor must be reduced to the same extent as when the employer Is negligent. We disagree. In our view, the compensation benefits of which the non-negligent employer has waived reimbursement, inure to the benefit of the injured employee or his dependents, as the case may be, as payments received by them from a collateral source.

'Where a person...