Litzmann v. Workmen's Compensation Appeals Bd.

• Citation: 266 Cal.App.2d 203,71 Cal.Rptr. 731
• Court: California Court of Appeals Court of Appeals
• Decision Date: 27 September 1968
• Parties: Lewis D. LITZMANN, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California; Azusa Western, Inc.; American Mutual Liability Insurance Company, a corporation, Respondents. Civ. 33021.

Page 731

71 Cal.Rptr. 731

266 Cal.App.2d 203

Lewis D. LITZMANN, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California; Azusa Western, Inc.; American Mutual Liability Insurance Company, a corporation, Respondents.

Civ. 33021.

Court of Appeal, Second District, Division 3, California.

Sept. 27, 1968.

William Jos. Hanks, Pomona, for petitioner.

Ives, Kirwan & Dibble and Darwin L. Dibble, Los Angeles, for respondents Azusa Western, Inc., and American Mutual Liability Ins. Co.

Everett A. Corten, San Francisco, and Nathan Mudge, Los Angeles, for respondent Workmen's Compensation Appeals Bd.

McCOY ^*, Associate Justice Pro Tem.

This is a proceeding to review and annul a decision of the Workmen's Compensation Appeals Board denying an applicant's claim for benefits. The referee, after a hearing, found that he sustained injury to his right shoulder, right upper arm, and left elbow arising out of and occurring in the course of his employment, but that the injury arose out of an altercation in which applicant was the initial physical aggressor and, therefore, he was not entitled to an award. The board denied applicant's petition for reconsideration.

The jurisdiction of this court to consider the petition for a writ of review is questioned by the answer of the appeals board, filed June 7, 1968. The petition for review now before us was date stamped and filed by the clerk of this court on April 18, 1968. The answer of the board points out that the appeals board filed and served its order denying reconsideration on March 18, 1968, and therefore, the petition was filed one day too late. Failure to file within the 30-day period provided by Labor Code, section 5950 deprives the court of jurisdiction. (National Auto Ins. Co. v. Industrial Acc. Comm., 58 Cal.App.2d 508, 136 P.2d 815; Alford v. Industrial Acc. Comm., 28 Cal.2d 198, 169 P.2d 641.)

On June 13, 1968, on being apprised of the board's challenge to the court's jurisdiction, the petitioner's attorney filed a notice of a motion to advance the filing date of the petition for review, indicating service of the notice on respondents. On the same date this court denied the motion 'without prejudice to petitioner's right to have the question raised thereby considered by the Court upon its consideration of the petition for writ of review.' It appears from the declarations in support of the motion that on April 17, 1968, the last day on which a timely petition could be filed, the petition was presented to the clerk of this court for filing, but that he refused to file it because it was not prepared in 'the proper form' and on 'proper size sheets,' although he was informed that it was the last date for filing. Respondents did not file any opposition to this motion.

Assuming the facts alleged to be true, it appears to us that, since the petition was deposited with the clerk for filing on April 17, 1968, albeit defective in form, this court may make an order that the petition be deemed to have been filed on that date. There is a strong public policy in favor of hearing cases on their merits and against depriving a party of his right of appeal because of technical noncompliance in matters of form. (Jarkieh v. Badagliacco, 68 Cal.App.2d 426, 156 P.2d 969; Pfingst v. Mayer, 93 Cal.App.2d 265, 208 P.2d 1002.) The only rule that expressly deals with the requirements for filing a petition for review of industrial accident cases is Rule 57, California Rules of Court. That rule contains no directions as to the form of the petition or the size of the paper on which it is to be filed, nor does it contain any direction to the clerk to reject a petition for any reason. Even if it were clear that a petition for review should comply with the form of briefs on appeal (see Rule 15), the failure to so conform does not justify refusal to file on the last day for filing, any more than the failure to so conform on appeal would justify a dismissal. On appeals, a common custom is to allow a reasonable time within which to file amended briefs complying with the rules. (See Lady v. Worthingham, 55 Cal.App.2d 396, 130 P.2d 435; Wiersma v. City of Long Beach, 32 Cal.App.2d 405, 89 P.2d 1107.)

An additional reason for excusing non-compliance with technical requirements as to the form of pleadings is found in the rule of liberal construction which this court is directed to follow in industrial accident cases. In Mercer-Fraser Co. v. Industrial Acc. Comm., 40 Cal.2d 102, 129, 251 P.2d 955, it was held that even the statutory provisions for service expressly provided by section 5954 of the Labor Code are not jurisdictional. In Industrial Indem. Co. v. Industrial Acc. Comm., 95 Cal.App.2d 443, 453, 213 P.2d 11, this court made an order that a petition for review be filed nunc pro tunc where the clerk received a petition for filing on the last day but did not date stamp it until the next morning, which made it appear to be untimely filed. We are satisfied that the petition was timely filed, and this court has jurisdiction to consider the case on the merits.

There is no real dispute as to the facts. Applicant, a 49-year old truck driver, was employed by Azusa Western, Inc. on March 21, 1967. He went to the dispatch or drivers' room about noon on that day to wait for his further orders. The drivers' room is about ten feet long by three feet wide. There are two dispatcher's windows on one side, the one at which incoming drivers report, and the other at which the drivers get their further orders. At least one dispatcher was present at the time involved here. The truck drivers usually stayed in the room between assignments, talking and having coffee. There were no chairs in the room. A coffee urn (presumably furnished by the employer) was on a counter along one wall for the use of the truck drivers.

When applicant went into the room there were 11 or 12 drivers present. Applicant had a thermos in which he had put some milk and Postum which he was shaking. Charles Dean, another driver, was in the room at the time. It appeared that some of the other drivers were playing 'keepaway' with Dean's pen, or at least Dean thought they were. As a result, there was some commotion in the room, during which Dean went from one truck driver to another trying to retrieve his pen. Applicant offered him a pencil, which Dean refused, saying he wanted his pen. It is a fair inference from the evidence that at this time Dean was, to say the least, annoyed, if not angry. The dispatcher then told Dean to get his truck ready to load and Dean went out to bring his truck up to the loading area. He returned to the dispatcher's room in a few minutes to get his delivery ticket for his next load and again started asking about his pen.

Just what happened next is not clear from the evidence. Applicant testified that as he went to the coffee urn to put some hot water in his cup, Dean bumped into his, causing some of the liquid in his cup to spill on his hand. Applicant then said to Dean, 'Here is some coffee if you want to play,' and threw some of the contents of his thermos on Dean's pants. As fairly summarized by the referee, applicant testified that he then backed up to Mr. Lelless, with whom he had been talking 'to watch and see what would happen. Charles Dean sort of blew up and said he was going to teach him not to throw coffee on him. He tried to take the lid off the urn and burned his fingers and then tried to pick up the urn and burned his fingers. He then tried to scoop some of the coffee off of the counter and throw it on him, but it didn't work, and he seemed to get more and more frustrated with each failure. Then he picked up the coffee pot and emptied it on him striking his face and arm, and he was burned from his hat over the top of his right shoulder and arm to an area about 4 inches below the elbow. He also had some on the left arm. He plucked at his shirt trying to get it off. While he was doing this, Mr. Dean doubled up his fist and said, 'I'll teach you to call me an S.O.B.' Mr. Litzmen said, 'I didn't but I will now'. Dean left.'

Dean testified that he could have bumped applicant but did not know whether he did or not; that as he walked to the door applicant said something and then threw liquid on him; that he turned away but the liquid, which was hot, hit him in the back of his neck, shoulder and arm. When asked what he did then, Dean answered: 'Well, I was going to tell him off. I evidently picked up the coffee pot. I got pretty angry. I remember sitting it down, but I don't remember picking it up.' He also testified that he did not have 'any words' with applicant about his pen.

Leo Vejar testified that, after Dean bumped the applicant when he was pouring his coffee and while he was facing the door, applicant said to Dean, 'So you want some coffee' and threw some on Dean's leg; that Dean hesitated and then went over to the coffee urn and the next thing the witness knew was that Dean had lifted the coffee urn and 'dumped' its contents on the applicant, and that the coffee hit his hard hat and ran down his shoulder. The testimony of the other two witnesses Harold Stevenson and Charles Lelless, was substantially the same as that of Vejar.

The evidence shows that...