Scott v. Pacific Coast Borax Co.

• Decision Date: 23 March 1956
• Citation: 140 Cal.App.2d 173,294 P.2d 1039
• Parties: Arthur Paul SCOTT, a minor, by and through his guardian ad litem, Henry R. Scott, Plaintiff and Appellant, v. PACIFIC COAST BORAX CO., a corporation; Borax Consolidated, Ltd., a corporation, et al., Defendants. Borax Consolidated, Ltd., doing business as Pacific Coast Borax Co., Division of Borax Consolidated, Ltd., Respondent. Civ. 21417.
• Court: California Court of Appeals Court of Appeals

Page 1039

294 P.2d 1039

140 Cal.App.2d 173

Arthur Paul SCOTT, a minor, by and through his guardian ad litem, Henry R. Scott, Plaintiff and Appellant, v. PACIFIC COAST BORAX CO., a corporation; Borax Consolidated, Ltd., a corporation, et al., Defendants.

Borax Consolidated, Ltd., doing business as Pacific Coast Borax Co., Division of Borax Consolidated, Ltd., Respondent.

Civ. 21417.

District Court of Appeal, Second District, Division 2, California.

March 23, 1956.

Rehearing Denied April 16, 1956.

Hearing Denied May 15, 1956.

Hindman & Davis, Los Angeles, for appellant.

Dryden, Harrington, Horgan & Swartz, Los Angeles, for respondent.

FOX, Justice.

The question in this case is whether the circumstances of plaintiff's injury bring compensation therefor under the exclusive jurisdiction of the Industrial Accident Commission. In granting defendant's motion for a nonsuit, the trial court so held. We have concluded that decision is correct.

In 1951, plaintiff, then 16 years of age, began working for defendant on weekends, when needed, in its hotel and coffee shop at Death Valley Junction, in Inyo County. This hamlet is owned exclusively by defendant. It consists of a hotel, coffee shop, store, small first aid station, a gas station and garage, an old, inoperative mill, and eight or ten houses, some of which were occupied by defendant's employees and others were rented. Plaintiff's father, who was an employee of the State Highway Department, resided in one of them. With the arrival of summer, defendant closed its hotel operations. Thus plaintiff's intermittent, part-time employment at the Junction was terminated. He did, however, work 'a few days' for defendant in August at its Furnace Creek Ranch in Death Valley 'colonizing trees and cutting dates and thinning them.' After plaintiff resumed school in the fall of 1951 and until May, 1952, when the season ended, he waited on tables and acted as bus boy at defendant's coffee shop on weekends and holidays when needed. But this 'wasn't very often.'

When school closed the middle of May, 1952, plaintiff went to work in Ash Meadows, Nevada (about 15 miles from Death Valley Junction), for a Mr. McCall, digging clay in the clay pits. He worked there until the middle of July, when he returned home.

Plaintiff was ready to leave on a vacation with his parents in late July, 1952, when Hank Kimbrough, assistant superintendent of all defendant's operations in that area, offered plaintiff a job at the Junction which had formerly been held by Dick Hobbs, who had left. Kimbrough asked plaintiff whether he would work a couple or three days--until they could get somebody--and told him 'it would be a good summer job for you to work in the gasoline station * * *' Kimbrough explained he would gather the garbage in the morning, take it to the dump, and then pull the ice, and deliver it to the different ice boxes. The other duties would be to stay around the gas station and service the cars that came in. The hours were from 6:00 a. m. to 2:30 p. m., with half an hour off at noon for lunch on his own time. Although there was no discussion about wages, plaintiff decided to forego his vacation plans and take the job. He started to work that noon. Plaintiff did the same things that Dick Hobbs had done, except plaintiff did not start the power generator in the morning. This was started by Jim Kennedy, an older employee, who usually got there before plaintiff, who, however, had his own key. Kennedy would be leaving about the time plaintiff arrived for work at the station. Kennedy's regular shift, however, was from 2:30 p. m., to eleven at night. Kennedy acquainted plaintiff with the prices of the items that were for sale in the service station. Plaintiff worked seven days a week but otherwise did not put in any overtime.

On August 15, plaintiff left the job at 2:30 as usual and Kennedy took over. After cashing his paycheck and taking care of some personal matters, plaintiff came back to the station about 3:30 and went into the garage, where he and a friend, Rozzie Fox, started cleaning up and working on an old motor which belonged to a woman who was employed in the coffee shop. This project was unrelated to plaintiff's employment. At approximately parts for the motor they were working on. the garage by the side door to go to Shoshone in an effort to find some needed spare parts for the motior they were working on. Just then Kennedy called to plaintiff and asked him if he 'would help him a second.' Plaintiff inquired, 'Well, how long will it take?' Kennedy replied, 'just a minute or two.' Kennedy needed plaintiff's assistance in repairing the middle pump in front of the service station. This was an old fashioned gravity-type gasoline pump with a glass bowl on top and a handle for pumping gasoline. Plaintiff had noticed this pump was leaking some days previously and had mentioned it to Ben Barlow, who was superintendent of defendant's operations in the Valley. Kennedy asked plaintiff 'to hold the handle straight so he could tighten the U-bolts up on it.' Plaintiff did this, and in not more than a minute Kennedy said: 'Well, that does it * * * OK.' Plaintiff then stepped back 'a couple or three feet.' As Rozzie Fox stepped back to get a drink at the fountain which was next to the door of the station, he remarked there was 'a lot of gas in the top of that bowl.' Kennedy replied, 'it won't hurt anything * * * I guess I can let it out.' As Kennedy made this remark, plaintiff turned to see what he was doing and observed Kennedy's hand go up to the box and heard a 'whirring of the motor and then everything blew apart.' At the instant of the explosion plaintiff 'was about three feet from the pump on the street [highway] side.'

Plaintiff was injured as a result of the explosion and seeks to recover damages for his injuries by this action. The trial court, however, took the view that this was an industrial injury and that the authority to fix the compensation therefor was vested exclusively in the Industrial Accident Commission. As a consequence, a judgment of nonsuit was granted, from which plaintiff appeals.

'Whenever a court or board is authorized to act upon the existence of a certain state of facts, it has jurisdiction to determine the existence or non-existence of the requisite facts.' Palermo Land & Water Co. v. Railroad Comm., 173 Cal. 380, 385, 160 P. 228, 230. The legal effect of the granting of defendant's motion for a nonsuit was a determination that the superior court was without jurisdiction to grant relief, since the injuries suffered were compensable under the Workmen's Compensation laws. See, Scott v. Industrial Acc. Comm., 46 Cal.2d 76, 293 P.2d 18, where the prior judicial history incident to this litigation is set forth. The essence of plaintiff's argument is that the issue of jurisdiction was incorrectly decided. He contends that his injury was not one 'arising out of and in the course of the employment', Labor Code, § 3600, and hence not within the exclusive purview of the Industrial Accident Commission. We cannot agree.

At the very outset, we deem it pertinent to remark that merely because this case reaches us in the form of a common law negligence action for damages, brought by an employee seeking to avoid the exclusive remedy of the Workmen's Compensation Act, we cannot be oblivious to the time-honored rules which have been established to implement the remedial purposes of the Act. First and foremost is the principle that the provisions of the act 'shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.' Lab.Code, § 3202. The effect of this statutory injunction is to require, where there is any reasonable doubt as to whether the act of the employee is contemplated by the employment or whether the injuries were sustained in the course of the employment that the courts resolve such doubts in favor of jurisdiction in the Industrial Accident Commission. Freire v. Matson Nav. Co., 19 Cal.2d 8, 10, 118 P.2d 809; Peterson v. Moran, 111 Cal.App.2d 766, 768, 245 P.2d 540; Moise v. Owens, 96 Cal.App.2d 617, 619, 216 P.2d 22. Though it may be more opportunistic for a particular plaintiff to seek to circumscribe the purview of compensation coverage because of his immediate interest and advantage, the courts must be vigilant to preserve the spirit of the act and to prevent a distortion of its purposes. That the question before us in this case arises out of litigation prosecuted in the superior court is all the more reason for care lest rules of doubtful validity, out of harmony with the objectives of the Act, be formulated. As was aptly stated in Freire v. Matson Nav. Co., supra [19 Cal.2d 8, 118 P.2d 810]: 'The rule [of liberal construction of the act in favor of its applicability] is not altered because a plaintiff believes that he can establish negligence on the part of his employer and brings a civil suit for damages. If the injury falls within the scope of the act, a proceeding thereunder constitutes his exclusive remedy [citations].'

The law is clear that an employee is entitled to an award of compensation when he suffers an injury 'arising out of * * * the employment,' and to which he has been exposed 'in the course of the employment.' Lab.Code, §§ 3600-3601; Freire v. Matson Nav. Co., supra; Baugh v. Rogers, 24 Cal.2d 200, 207, 148 P.2d 633, 152 A.L.R. 1043. It has generally been held that the phrase "arising out of" is the causal element and refers to the origin of the accident. Elk Grove Union High School Dist. v. Industrial Acc. Comm., 34 Cal.App. 589, 594, 168 P. 392, 394, while the words "in the course of employment" have reference to the time, place and circumstances of the disabling event. Griffin v. Industrial Acc. Comm., 19 Cal.App.2d 727, 732, 66 P.2d 176, 179. Although the two elements must coexist concurrently to sustain an award, they are...