State Compensation Ins. Fund v. Workmen's Comp. App. Bd.

• Decision Date: 19 June 1970
• Citation: 87 Cal.Rptr. 770,8 Cal.App.3d 978
• Court: California Court of Appeals Court of Appeals
• Parties: STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, Respondent, David Carl CHILDS, Real Party in Interest. Civ. 35659.

Page 770

87 Cal.Rptr. 770

8 Cal.App.3d 978

STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, Respondent David Carl CHILDS, Real Party in Interest.

Civ. 35659.

Court of Appeal, Second District, Division 5, California.

June 19, 1970.

Hearing Denied Aug. 12, 1970.

T. Groezinger, Loton Wells and A. C. Jones, San Francisco, for petitioner.

Rupert A. Pedrin, San Francisco, Nathan Mudge, and Sheldon M. Ziff, Los Angeles, for respondent.

Freshman, Marantz, Comsky & Deutsch, Beverly Hills, for real party in interest.

SELBER, Associate Justice pro tem. ^*

Herein we review an order of respondent Workmen's Compensation Appeals Board granting an award of compensation to an inmate of the Los Angeles County jail who was injured while working as a member of a road gang in the Malibu area of Los Angeles County. The sole question raised in the petition for writ of review is whether the inmate was an employee of the Sheriff's Department of the County of Los Angeles at the time of the injury within the meaning of the Workmen's Compensation Act.

The facts in this case are developed primarily through the testimony of the applicant, David Carl Childs, given at the hearings on May 16, 1969, and August 28, 1969.

Applicant had been in jail for about two and one-half months prior to the date of his injury which occurred on November 3, 1966. On that day he was helping to haul equipment needed to lay a sewer pipe along a highway when he was struck with a shovel by another inmate because he would not give him cigarettes. He had worked daily on various projects for about two months, and on this specific job for about a week before the injury. He worked eight hours a day. He was transported to and from the job site by a sheriff's department bus and was paid fifty cents per day by the sheriff's department. This was paid to him by way of credit slips which he exchanged once a week at the store located at the Malibu camp. He further testified that he had volunteered to work on the highway job, which was the hardest work available, and that he was not required to do so.

The only other witness who testified was a lieutenant in the Los Angeles County Sheriff's Department who was in charge of the Malibu camp several days per week. He produced the applicant's camp card showing he was assigned to road crew number 5.

Findings and award issued on September 25, 1969. The referee found that applicant was injured while employed by the sheriff's department of the county and granted benefits to the applicant. A petition for reconsideration was denied on November 4, 1969, by the Workmen's Compensation Appeals Board. It is from this order of denial that petitioner seeks review.

The question of the right of a prisoner to receive workmen's compensation for services performed by him outside of the prison itself was first considered by an appellate court of this state in California Highway Com. v. Industrial Accident Commission (1926) 200 Cal. 44, 251 P. 808. In that case the court held that an inmate of a state prison performing labor on a state highway in return for a credit on his sentence time was an employee and could recover compensation. It was further held that despite the fact that the frisoner had lost his civil rights as a result of his felony conviction, when he was employed by the State Highway Commission pursuant to the authority to employ prisoners granted under the Convicts Road Camp Bill (stats. 1923, ch. 316, p. 667), he was, in effect, restored to such limited civil rights as were necessary to create the relation of master and servant between him and the State Highway Commission. The court reasoned that the inmate was at liberty to either accept the work or refuse it and was thus a volunteer; that having accepted the work in return for compensation he was entitled to the benefits enjoyed by employees under the Workmen's Compensation Act, which act should be liberally construed to carry out its beneficient purposes. (Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 P. 721.)

Since the time of that decision, state prisoners have been expressly excluded by statute from workmen's compensation benefits. ¹ However, city and county jail inmates have not been so excluded. When working in the prevention or suppression of fires such inmates are by law deemed to be employees and entitled to benefits upon receipt of an injury. ² Otherwise, in order to be eligible, inmates, at the time of injury, must fall within the definition of an employee as set forth in Labor Code, section 3351. ³

The question involved herein was next considered in Pruitt v. Workmen's Comp.App. Bd. (1968) 261 Cal.App.2d 546, 68 Cal.Rptr. 12. This decision is referred to as controlling in the opinion of the referee and as without material distinction in the opinion of the board.

In the Pruitt case, the applicant was also an inmate of a county jail. He was 'loaned out' to a city to work on its sewerage plant in return for which labor he received a carton of cigarettes per week and a fixed reduction of his sentence of five days per every thirty days of work. His work was found to be voluntary. Under these facts the court held the inmate to be an employee within the definition of Labor Code, section 3351. At page 549, 68 Cal.Rptr. at p. 13, the court in Pruitt stated: '* * * (1) Petitioner is not an inmate of a state prison, not a felon who has lost his rights as a citizen; (2) * * * he was at the time of his injury not performing compulsory work imposed as an incident to his incarceration, the labor performed was voluntary; (3) he was not working for the county, he had been 'loaned out' to the city and was working for it. He was at the time of the injury solely under the latter's control. * * *' At page 552, 68 Cal.Rptr. at p. 16, the court said: 'We hold that when a county jail inmate is loaned out to a third party for work on a voluntary basis, whether that third party be a private corporation or a municipality, and when he is under the control of the latter with the right in said third party to direct the manner in which the service shall be performed, there is (1) a relationship of master and servant, (2) an implied contract of hire and therefore by statutory definition (in Lab. Code, § 3351) the inmate becomes an 'employee' and as such entitled to workmen's compensation benefits when injured in the course and scope of his employment. * * *'

We have already determined that the applicant herein is a county jail inmate. We must next determine if the board was correct in holding the work to be voluntary. The only evidence on this issue presented at the time of the hearings was the testimony of the applicant that he volunteered for the job and that he was not required to do so. While appropriate objection to the above testimony might have been made that it amounted to a mere conclusion of the applicant, no such objection was lodged and no contrary evidence was introduced.

Petitioner now argues that applicant was working in a work program incidental to his incarceration, not under a contract of hire, but pursuant to the county's authority over his person, and thus, that there could be no consideration for such a contract. To support this view, petitioner relies on the pertinent language of Penal Code, section 4017. ⁴

That section, as will be noted, provides that a county board of supervisors May adopt an appropriate order requiring county prisoners to perform labor on public works. In the Pruitt case, the respondent County of Nevada had indeed enacted Nevada County Ordinance No. 198 providing for the use of county jail prisoners on county public work projects thereby making such work compulsory as an...