Walker v. City and County of San Francisco

• Decision Date: 09 June 1950
• Citation: 97 Cal.App.2d 901,219 P.2d 487
• Court: California Court of Appeals Court of Appeals
• Parties: WALKER et al. v. CITY AND COUNTY OF SAN FRANCISCO et al. Civ. 14163.

Page 487

219 P.2d 487

97 Cal.App.2d 901

WALKER et al. v. CITY AND COUNTY OF SAN FRANCISCO et al.

Civ. 14163.

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

June 9, 1950.

Hearing Denied Aug. 3, 1950.

William P. Golden, Jesse H. Miller, San Francisco, for appellants.

Dion R. Holm, City Attorney of the City and County of San Francisco, George E. Baglin, Deputy City Attorney of the City and County of San Francisco, San Francisco, for respondent.

GOODELL, Justice.

This action was brought by the widow and two minor daughters of John W. Walker to recover $75,000 damages for alleged negligence resulting in his death.

Respondent filed a general demurrer which was overruled, and after answering, it moved for judgment on the pleadings. The motion was granted, judgment entered, and this appeal taken.

On July 24, 1944 the decedent, a member of the San Francisco Fire Department, was on his fire truck responding to an alarm when, at the intersection of Duncan and Church streets, a street car of the municipal railway ran into the truck. From injuries then received he died the same day.

The face of the complaint shows that decedent was an employee of the City and County, which owns and operates the municipal railway. Appellants contend that because the railway is operated by respondent in its proprietary capacity, while fire protection is a governmental function, the problem should be treated legally as if decedent had been an employee of one corporate entity, functioning governmentally, and the motorman and conductor (whose negligence is admitted for the purpose of the motion) employees of another, functioning in a proprietary capacity. Respondent stands simply on the fact that the complaint shows that decedent was fatally injured within the course of his employment, hence that his dependents are limited, as far as his employer is concerned, to the award of compensation declared by §§ 3600-1, Labor Code to the exclusive remedy.

Labor Code, § 3600 prescribes the essential conditions of compensation in part as follows: '(a) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division. (b) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment. (c) Where the injury is proximately caused by the employment, either with or without negligence. * * *'

Appellants contend that decedent's fatal injury did not arise out of his employment, hence with one of the conditions absent the case is not within the act. They argue that the injury arose out of the violation by the railway and its employees of Vehicle Code, § 554, which provides that upon the approach of an emergency vehicle '* * * The motorman of every street car shall immediately stop such car clear of any intersection and keep it in such position until the authorized emergency vehicle has passed * * *' They claim that the purpose of § 554 is 'to safeguard the lives of the fire fighting personnel and prevent the disabling or destruction' of such vehicles. That of course is true, but the argument answers itself since manifestly the risk of collision in going at top speed to a fire is one of many risks inherent in a fireman's occupation and not at all common to all persons alike. 'All that is required is that the hazard to which the workman has been exposed be recognized as inherent in the nature of the work and the conditions under which it is to be done, rather than external or foreign to it.' Prosser on Torts, Hornbook Series, p. 534. See Freire v. Matson Navigation Co., 19 Cal.2d 8, 13, 118 P.2d 809; Pacific Employers Ins. Co. v. Industrial Accident Commission, 26 Cal.2d 286, 289, 157 P.2d 9, 159 A.L.R. 313; Globe Indemnity Co. v. Industrial Accident Commission, 36 Cal.App. 280, 171 P. 1088, and Industrial Indemnity Co. v. Industrial Accident Commission, 95 Cal.App.2d 804, 214 P.2d 41. We are satisfied that decedent's fatal injury arose directly out of his employment, hence there existed a concurrence of the conditions of § 3600.

In pressing their argument respecting separate entities appellants cite Hanley v. Marsh & McLennan, J. B. F. Davis & Son, 46 Cal.App.2d 787, 117 P.2d 69, which follows Esberg v. Badaracco, 202 Cal. 110, 259 P. 730 in holding that the San Francisco School District is an entity distinct from the City and County. There is no parallel between that case and this, since school districts are recognized as separate legal entities from the counties or municipalities wherein they function. Butler v. Compton etc. District, 77 Cal.App.2d 728, 176 P.2d 417, and its citations.

Appellants also suggest an analogy between the present situation and the case of a large, parent corporation which owns a smaller corporation 'lock, stock and barrel', and argue that an employee of the larger one, injured by a vehicle of the smaller one, would still have his common-law remedy for damages against the latter, and could not be relegated to workmen's compensation simply because the smaller corporation was owned by the larger. Of course not. But that is as clear as example of two corporate entities as the one supplied by a school district and a municipality.

In Park v. Union Mfg. Co., 45 Cal.App.2d 401, 114 P.2d 373, the plaintiff, who was injured in the course of her employment while working for two partners, brought suit for damages against Union Manufacturing Company, a copartnership, composed of the two partners by whom she was employed, on the theory that the copartnership (doing business under the fictitious name) was a legal entity separate and distinct from her two employers. A judgment for plaintiff was reversed on the ground that there were not two entities and that her remedy under the workmen's compensation act was exclusive.

In City of Pasadena v. Railroad Commission, 183 Cal. 526, 530, 192 P. 25, 27, 10 A.L.R. 1425, it was claimed that a city operating a public utility should be treated as a private corporation engaged in the same business, notwithstanding the fact that the city carried on such business as a municipal corporation. The court held that 'It is not true that a city is a private corporation when carrying on a municipally owned public utility.' That case was followed in Irilarry v. City of San Diego, 186 Cal. 535, 538, 199 P. 1041, and in Irish v. Hahn, 208 Cal. 339, 344, 281 P. 385, 387, 66 A.L.R. 1382, where the court said: 'The distinction between the governmental and proprietary functions was never made for the purpose of adding to or detracting from either as a public function, but for the purpose of determining the liability of the municipality in tort.'

With respect to the tort liability of a public corporation operating a utility in its proprietary capacity see People v. Superior Court, 29 Cal.2d 754, 761-762, 178 P.2d 1.

Appellants have not cited any case in this state or elsewhere, decided since the advent of workmen's compensation, which supports their contention.

On the other hand there are numerous authorities which have followed the plain language of § 3601, Labor Code, and its parent section, which provides that 'Where the conditions of compensation exist, the right to recover such compensation * * * is * * * the exclusive remedy against the employer for the injury or death.'

In Alaska Packers Ass'n v. Industrial Accident Commission, 200 Cal. 579, 583, 253 P. 926, 928 the court said: 'The California Workmen's Compensation Act provides the only means by which an injured employee can recover compensation from his employer for injuuries received in the course of and arising out of his employment, and it abrogates the common-law liability of the master for such injuries in the cases to which it is applicable. (Citation.) The obvious intent of the act was to substitute its procedure for the former method of settling disputes arising between those occupying the strict relationship of master and servant, or employer and employee, by means of actions for damages. (Citation.) It substitutes a new system of rights and obligations for the common-law rules governing the liability of employers for injuries to their employees. (Citation.) When the specified conditions exist, the remedy provided by the act is exclusive of all other statutory or common-law remedies. (Citation.)'

Later cases are Freire v. Matson Navigation Co., 19 Cal.2d 8, 10, 118 P.2d 809, supra; Baugh v. Rogers, 24 Cal.2d 200, 207, 148 P.2d 633, 152 A.L.R. 1043; Burton v. Union Oil Co., 129 Cal.App. 438, 19 P.2d 9; Buttner v. America Bell Tel. Co., 41 Cal.App.2d 581, 107 P.2d 439 and Jiminez v. Liberty Farms Co., 78 Cal.App.2d 458, 459, 177 P.2d 785.

Appellants cite Turner v. City of Indianapolis, 1884, 96 Ind. 51, where a fireman was injured when the chief's buggy which he was driving to a fire was overturned by an obstruction in the street. He was held entitled to damages against the city, his employer, for its negligence. This was before Indiana had workmen's compensation. After its adoption the same court held (1942) that a fireman was within the act. City of Huntington v. Fisher, 220 Ind. 83, 40 N.E.2d 699.

Appellants rely also on Coots v. City of Detroit, 1889, 75 Mich. 628, 43 N.W. 17, 5 L.R.A. 315, where the plaintiff was driving an engine to a fire when it ran into a hole in the street, causing serious injuries. A judgment in his favor against his employer, the city, was affirmed. This, also, was before Michigan had workmen's compensation.

Respondent cites Bross v. City of Detroit, 1933, 262 Mich. 447, 247 N.W. 714, 715, a case on all fours with the present one, where the plaintiff fireman was injured in a collision between the hook and ladder on which he was riding and a municipally owned street car. The same court...