It wаs error to enter a judgment dismissing plaintiff’s amended complaint, even though it appeared that plaintiff’s cause of action arose in connection with an employment agency contract and it did not appear that plaintiff had referred its controversy with the defendant to the State Labor Commissioner before appealing to the superior court for relief.
The contention of the defendant in support of the judgmеnt is that this action was prematurely brought because there had been no prior compliance with the first sentence of section 1647, Labor Code, which reads: “In all eases of controversy arising under this chapter the parties involved shall refer the matters in dispute to the Labor Commissioner, who shall hear and determine the same, subject to appeal within ten days after determination, to the superior court where the same shall be heard de novo.” The chapter referred to is a codification, with quite a few changes, of an act regulating private employment agencies, (Stats. 1913, p. 515, Act 2349, Deering’s General Laws, 1931), and consists of sections 1550 to 1649, inclusive, of the Labor Code. Section 1647, Labor Code, was, with some minor modifications, formerly a part of section 19 of the act *975 referred to. The problem thus presented for our decision is whether the amendеd complaint stated any cause of action not presenting a 11 controversy arising under this chapter, ’ ’ for if there was one such cause, the trial court should not have denied the plaintiff all relief.
The amended complaint is divided into three counts, but upon examination only two causes of action are discovered; the third count is but a restatement of the two causes of action already separately stated, one in еach of the first two counts. These first two counts contain certain elements in common. It appears, in each, that the plaintiff corporation was licensed to engage in the business of conducting a motion рicture employment agency, and that the defendant was a motion picture cameraman. In April, 1941, the plaintiff and the defendant entered into a written contract whereby the former was to be the latter’s “sole аnd personal representative . . . for a period of seven years. ’ ’ It was “to assist defendant in negotiating for the procuring of employment.” The defendant in turn agreed to pay the plaintiff ten per cent of all compensation earned by the defendant during the term of the contract. Then it is alleged that the plaintiff has duly performed all the conditions on its part to be performed.
At this point counts one and two set out on separate paths, each developing its own cause of action. In the first count the fact appears that in .Time and August of 1941 the defendant earned and received a total of $3,800. The first count then concludes with thе statement that in November the defendant “wrongfully and without cause discharged plaintiff from its said employment” and has failed to pay the $380 which had accrued under the contract.
The second cause of action also sets up the discharge, made wrongfully and without cause, and continues with the allegations that the defendant’s reasonably expected earnings during the balance of the contract’s life would have been not less than $120,000, so that his discharge of the plaintiff damaged the latter in the sum-of $12,000.
The boundary line of the field described by the words “all cases of controversy arising under this chapter” has not yet been completely surveyed, but two monuments have been erected: the cases of
Collier & Wallis, Ltd.
v
Astor,
(1937)
The second case we cited, that of
Friedlander
v.
Stanley Productions, Inc.,
(1938)
In the case of
Hanes
v.
Coffee,
the plaintiff sought and obtained a judgment quieting its title to property that had been leased to the defendant for the drilling of oil, the basis of his recovery being that the defendant’s failure to commence operations within two years lost him his interest in the property. The Supreme Court disposed of the defense that the lease contained a provision for arbitration “should the parties hereto not agree as to any question of fact affecting the rights of the parties hereto, ’ ’ by making this statement, quoted in the Friedlander opinion at p. 680: “ 1 Conceding that this provision would be enforceable under our statutes, we do not think that it is applicable to the present controversy, in which the lessor contends that by reason of failure of the lessee to commence operаtions within the specified period, the lease never became operative, .or if it did, is now terminated. The provision clearly does not
*977
contemplate that this question shall be submitted to arbitration, since if the allеgations of plaintiff’s complaint are sustained, the result is that the lease, including the arbitration provision, is , wholly inoperative, and the lessee can claim no rights thereunder. ’ ” A similar conclusion was reached in
Johnson
v.
Atkins,
(1942)
We conclude from these cases, first, that our first cause of action, identical with that found in the Collier & Wallis, Ltd. case, presented a controversy “arising under this chapter,” and that an action upon it may not be maintained because the matters in dispute havе not been referred to the Labor Commissioner. Were the necessity for the reference contractual, a termination of the contract might be said to end the necessity, but as it arises from statute, even the termination of the contract does not put an end to the requirement that matters in controversy be first referred to the Labor Commissioner.
Secondly, we conclude that an action for damages, based on the theory thаt the contract is no longer operative, does not present a controversy arising under sections 1550-1649 of the Labor Code. If the contention were that by a term of plaintiff’s contract the questions involved had first to bе arbitrated, the cases already referred to justify the conclusion that under the facts of the second cause of action, the contract is at an end, as an operative contract, and the arbitration provision would also be ended. By analogy, it appears from the Friedlander case, that if the contract is no longer operative, the problems that arise as a consequence do not constitute сontroversies covered by section 1647, Labor Code. That the contract is no longer operative, that it is at an end for all purposes save as a basis for plaintiff’s action for damages, seems clearly tо be the theory and effect of plaintiff’s second, and in part his third, cause of action. This quotation, made in
Sobelman
v.
Maier,
(1927)
In neither of the first two cases cited by us was the scope of the words “cases of controversy arising under this act” expressly considered. Should those words be given an interpretation limiting them to controversies respecting the relative rights and duties of employment agencies and those with whom they deal, as imposed by the provisions of act 2349, supra, or now by sections 1550 to 1649 of the Labor Code, our conclusion rеspecting plaintiff’s second cause of action would be fortified; nowhere in those sections do we find the subject matter of a principal’s wrongful discharge of his employing agent referred to directly or indirectly.
The judgment of dismissal is therefore reversed, with directions to the trial court to overrule the demurrer as to plaintiff’s second and third causes of action.
Desmond, P. J., and Shinn, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied June 3, 1943. Shenk, J., and Curtis, J., voted for a hearing.