*1 May 1, A. No. 18805. In Bank. [L. 1944.] BAUGH, Respondent, al., ORA L. v. FRANCIS ROGERS et
Appellants. *4 Jones, Thompson Nourse & Paul Nourse Everett W. and Appellants. for Pray,
Russell H. E. J. Nordorf Robert Krause and Samuel Respondent. for
SCHAUER, J. presents prob- This case four fundamental lems, which, two of so far the of and as research counsel our- selves discloses, have been by not heretofore considered court last resort in this The either state or elsewhere. problems conveniently after a statement may be more defined of the essential facts. Legal Relationship the Parties
Essential Facts and by capacity the de- plaintiff employed The in a dual was who, surgeon Rogers, and physician fendant who was a and in living in rooms quarters, addition to maintained certain practice profession. an of his residence as office Rogers to work Plaintiff was engaged by the wife of defendant by did clean- day at the residence She the hour one a week. ing premises parts and other duties in such household Rogers as she was directed. While Mrs. time time working “engaged in house- living quarters was she that term employee service” an hold domestic and was Code, 3352(g) Labor defined sections and 3358.5 of the but when her were devoted the maintenance services statutory defi- premises” she within the “business came 3355.) (See “employee.” Code, nition of Lab. and §§ July 22, cleaning On plaintiff time was at a when by Mrs. quarters office employer, her she was directed Rogers go jam window push “outside and [office] holding in, Rogers] was was open] while she [which [Mrs. pulling plaintiff and it was occu- on on the inside.” While pied performing injured by this task and she was struck employer, the negligently operated automobile her Rogers. defendant was Dr. automobile owned being defendant Warnock was with his consent. and driven Dr. Rogers required by carried insurance section 3700 Labor Code. trial, all jury,
At the which found was without a court found, essential basic facts in plaintiff favor and also in support pleaded de- defendants’ “second affirmative fense,” “at . . . place that time of the accident and plaintiff Rogers was in the L. employ the defendant Francis and that . plaintiff accident . . occurred while acting in scope employment”; and course of her plaintiff compen- Rogers subject defendant were Rogers Code; sation of the Labor that defendant carried compensation insurance; (obviously a conclusion of law) cause jurisdiction “this court has no Judg- action . . . plaintiff has to sue.” capacity no ment for motion plaintiff’s the defendants was entered but on granted defendants new trial was as to both *5 sufficient among others, that evidence was not ground, appeal This is the defendants the decision. support granting a from trial. order new Questions Involved Statement of following presented: legal questions are 1. Does the The employee-em- as of law that the evidence establish a matter between and defendant ployer relationship plaintiff existed Rogers they subject are Code) Compensation (Lab. in relation to Workmen’s Law they subject plaintiff’s injury? compensa- 2. If are to such law, tion is that fact a to this action insofar as de- defense Rogers is recovery fendant concerned? 3. If cannot be had neg- plaintiff against Rogers, this action defendant ligent operator, may nevertheless recover from the she owner Warnoek, by automobile, pro- defendant virtue (a) plain- visions of section 402 If Vehicle Code? 4. judgment tiff Warnoek, recovers herein the owner such necessarily precluded any owner from recourse operator by the negligent reason of latter’s relation plaintiff? (b) negligent operator Is the necessary proper party defendant this action?
The questions (3 last two far 4), advised, as so we are have not passed by any heretofore been on court of last re- sort. We have The concluded that: 1. evidence establishes plaintiff a matter of Rogers, law that and defendant at accident, time of the employee- were relation subject and are compensation provisions the Labor Code. 2. Such relation is a defense to action this insofar Rogers as defendant may, concerned. 3. Plaintiff nevertheless, (a) recover from the defendant owner. 4. negligent operator, though even he has an available defense herein plaintiff, may eventually be liable to the defendant owner under bailments, (b) the law of proper and, is a ease, the facts a neces- this sary, party defendant.
Discussion the Law Upon Evidence, 1. Law, as a Matter Plaintiff Employee. Was an The conclusion we have relative reached question the first law stated above needs little discus Plaintiff sion. contends that from the evidence trial court might found have independent she was contractor, and, hence, (See that the order must be affirmed. Newman Ry. (1901), v. Overland Pac. Co. ; Cal. P. 110] Tyrone Enterprises Cox v. Power Cal.App.2d 829].) But only “If all the facts single may inference and one conclusion drawn, whether *6 one an employee independent or an ques contractor is a tion (Yucaipa of law.” Farmers etc. Assn. v. Industrial Acc. (1942), Cal.App.2d 234, Com. 55 238 146]; see, P.2d [130 also, Burlingham Gray (1943), 22 100 87, Cal.2d P.2d [137 9].) controlling Here the undisputed, facts are From plaintiff’s testimony, own and without substantial conflict by otherwise, inference or appears it plaintiff all was at subject right times by to the of control employer her as to the duration employment of her and as what she did and how employer she did it. The did not maintain constant supervision over plaintiff but that fact is immaterial. herOn part, plaintiff quit could have working Rogers for Dr. at any time she saw fit so to do.
An independent contractor is one “who renders services specified for a recompense for a specified result, under the control principal of his to the only as result of his work by as to the means which accomplished.” such result is (Lab. Code, 3353.) The distinction § between the status of independent contractor and that employee has often been by considered this court, and it is well established that a material generally right conclusive factor is the of the employer complete to exercise and authoritative control of the manner in which the work is done. The existence such right of control and not the extent of its exercise constitutes the relationship that of employer-employee. (S. A. Gerrard Co. v. Industrial Acc. (1941), 411, 413, Com. 17 414 Cal.2d 377]; P.2d Burlingham Gray (1943), [110 supra, 22 Cal. 87, 95, 2d 99 ; P.2d Riskin v. Industrial [137 Acc. Com. 9] (1943), 23 248, Cal.2d 253 16].) “Perhaps P.2d no [144 single circumstance is more conclusive to show the relation ship of an employee right than the of the to end employer the service whenever (Press he sees fit to do so.” Pub. Co. v. Industrial Acc. (1922), Com. 190 114, Cal. 120 P. ; Hillen 577, v. Industrial (1926), 820] Acc. Com. 199 Cal. 582 570]; Chapman P. (1933), Cal.App. v. Edwards 72, 211].) P.2d “An employee may quit, in but an dependent legally obligated contractor is complete his con- Acc. (Los Flores Dist. v. Industrial Com. tract.” S. 581].) Cal.App.2d 180, rea- any light admits of no Viewing here in the evidence employee an plaintiff
sonable conclusion save that Labor in the compensation prescribed that all the conditions Code existed. Compensation 2. The that All the Conditions of fact in this Ac
Existed, Employer to the Is a Available Defense tion de Employee. Code his Section 3600 Labor by this provided “Liability clares that for the division any other whatsoever lieu of [Div. 4] any shall, person without except provided as in section regard any injury employer negligence, exist course arising sustained out of and in the employees the conditions employment where” ... those cases of compensation, itemized, provides exist. Section compensation exist, “Where the conditions of recover compensation, pursuant this is, division the ex except provided ’’ injury clusive remedy or death. for the *7 Section any employer exception creates the that “If injured fails payment any to secure the em compensation, of ployee against employer or his dependents may proceed such by filing an application compensation for commis with the sion addition, may and, Accident in [Industrial Commission]' bring damages, action at for law such as if this division did apply.” quoted language above of plain. is The conditions compensation employer (Dr. Rogers) existed had se- and the cured payment insurance. compensation proper of exclusively Jurisdiction to hear claim is for in the (Cal. Const., XX, Industrial Accident art. Commission. 21; Code, 5301.) court, therefore, Lab. §§5300, The trial § had no authority judgment recovery by to render for the plaintiff (the employee) damages of from defendant Rogers (the employer). This, however, appear, later as will does not mean that not a or Rogers proper defendant is necessary party defendant. Negligent Operator 3. The Fact that the Auto of
mobile Is Compensation Liable to Workmen’s Plaintiff for Only, Not Recovery Does Preclude Plaintiff from Negligence Owner Imputed by the Ve- Section of hide By (a) Code. 402 of subdivision of section the Vehicle provided “Every it is that of a Code owner motor vehicle is responsible injury liable and of person the death or resulting property negligence operation or from of motor vehicle, such the business such owner or other- wise, by any person using operating or the same with the neg- permission, express implied, owner, or of such and the ligence all person imputed such shall be to the owner for purposes damages.” (b) of civil of the same sec- Subdivision tion five limits the “to the amount of owner thousand injury person dollars . . for the to one . death orof any requires opera- one (c) accident.” Subdivision that “the tor of imputed said vehicle whose to the owner is shall be party process made a personal defendant if service of can recovery be had upon operator Upon said State. within this judgment, property recourse shall first be had said “In (d) so served.” Subdivision declares the event a recovery is had under this sec- tion against an imputed negligence, owner on account of such subrogated owner person injured is rights all the property whose injured may has been recover such operator judgment total any amount and costs ’’ recovered already owner. what has From been said it appears that recourse at had cannot “first he [or all] against the property spe- said has a operator” because he cial action; defense this also it that the appears provision that “such subrogated rights owner per- to all injured” son no meaningless plaintiff here has because right of premises action in bemay the owner which subrogated. argue, (c) in effect,
Defendants that subdivisions (d) (a) create hence, conditions and, subdivision the liability imposed by (a) otherwise does not subdivision attach unless rights given hy all owner subdivisions (c) (d) are available. But this be sus contention cannot tained. It long has purpose since been that the determined *8 Legislature Code, 402 of the enacting section Vehicle and its predecessor, Code, section the Civil was 171414 change the common law (for rule of bailments law common rule see 8 318, 40) impose upon C.J.S. and the bailor § owner a liability imputed negligence for the operator, to whom he possession has entrusted the and control of
209 person, injured and the owner vehicle, which, as between set. limits within unconditional and is direct Packing Valley Co. Kern of Broome v. The ease of action a cause involved 430], 256 P.2d Cal.App.2d 6 provi The the Civil Code. section arising under 171414 402 section (d) of and (c) subdivisions sions found in now more might thus which provisos, form of then were interpreted have been readily subsections present than the against the owner action availability of the cause limit the himself protect could the owner to a situation where statute, provisos. given him in the loss the means interpreted. however, not so was Barnard, the court Presiding through Justice Speaking Mr. seem : “It would (at p. Cal.App.2d) 261 of 6 said di- an owner make main is to purpose this section negligence through the injured rectly responsible person to a permission, driving of an with the owner’s operator the car pro- calculated although provisions section also contains operator’s tect the owner from the results parties those without may so far as this done between be interfering injured party. . . rights with . While this not as clear could section is
“[P. 262] liability desired, we think it and direct imposes primary owner, secondary such an to enable with him car.” protect operator himself as only quoted from Not a petition the above hearing of lan reasoning quoted case denied this court but the guage Kodimer expressly were in Holland v. approved (1938), 11 it was said 843], Cal.2d P.2d wherein Valley that “In opinion, our Kern the decision in Broome v. Packing accurately analyzes applies Co. . . . section ...” 1714¼ It is settled that affected is not the owner by the fact that he provision cannot avail himself of the subdivision (c) of first be that “recourse shall had because, the property operator,” of said either although was no appeared, was served there adjudication Kodimer, final liability (Holland of his su pra; Broome v. Kern Valley Packing (1935), supra, Co. Cal. App.2d ; see, also, P.2d v. Niemann Sanderson 430] (1941), 1025]) Cal.2d because operator had disappeared (Sutton Tánger (1931), 115 Cal.
210
App. 267,
521])
(Sayles
270
P.2d
(1936),
or died
Peters
v.
[1
In ease, the last (at cited court 831 of 41 p. said Cal. App.2d) : “While the against cause of action the driver of the car abates on death, his such not death does bar the cause against action liability primary the owner . .” whose . As ihjured of the to the remains plaintiff owner even though plaintiff’s negli against cause action gent operator wrong-doer,” “dies with the so death it though remains even plaintiff deprived cause of action for civil damages negligent operator because the accident occurred under the conditions work men’s compensation.
In
support
negli
further
of their contention that
gence can
imputed
only
be
under section 402
where
negligence is
actionable
and the owner
can avail himself
protection
(c)
of the
of subdivisions
(d)
section,
of that
defendants contend
the im
that “Since
puted negligence
action, giving
statute created a
new
a remedy against
party
liable,
a
who would not otherwise be
it must
strictly
(Weber
(1937),
be
Piny
construed.”
an
9
226,
183,
Cal.2d
P.2d
In
409].)
A.L.R.
addition to the
Swing
Lingo
Weber case, defendants cite
(1933),
Whether by defendants, “upon respondeat superior depends, as stated only servant’s cul the servant” question harmony on is a lack pability, which there point. In among jurisdictions which have considered the presented in the aspect question one was California Tranquility Irrigation (1938), of Myers case District That Cal.App.2d 419], by cited defendants. case unemaneipated held that minor could recover damages injuries employer of his father caused by acting scope within the father in the authority and course of business. The court rea soned that the child could not recover from the father (p. tort action 388), be able to re would coup damages from the father amount of recovered 389), (p. the child and that “What child cannot do di rectly he permitted accomplish by should not be indirec (p. 390). tion” The conclusion there reached the court predicated on the philosophy that “The peace so ciety, society, composing families pub a sound policy, designed lic repose subserve the families society, the best interest of minor forbid child a appear in court in the assertion of a claim to civil redress personal injuries parent” suffered at hands of Myers (quoted in Tranquility Irrigation District *11 supra, from 20 361), “Any that proceeding R.C.L. tend ing to bring family disorganize gov discord into the its regarded may contrary ernment well be to the common law, and not to be by (quoted sanctioned the courts” in the Myers case from ese Matar (1925), Matar ese 131, 47 R.I. 133, 198, 199, 1360, 1361). A. A.L.R. No such basis limiting exists for liability here the imposed by section 402 of the Vehicle Indeed, philosphy Code. that appli has no cation to section 402. If we apply were to it and were follow reasoning defendants, the we should have hold that such inoperative by section was when a child consent drives by his parent’s (or parent automobile a when consent child) drives that of give his because to effect to the section up conflicting would set a for basis parent claims between is, It course, and child. knowledge common that the sec tion frequent finds application parent in and child cases. A recent ease where applied it was so is Souza v. (1943), Corti 645, Cal.2d 454 147 A.L.R. 861].
In Rogers’ that contending negligence defendant is term use the that defendants apparent it is nonactionable for recovery sense that in limited only the “nonactionable” action Rogers by court the defendant negligence from provisions the by in its Code, the Labor is barred injury is work employee’s liability the sole for employer’s is remedy therefor exclusive compensation and the men’s Obvi Commission. Industrial Accident application absque itself is not damnum act ously character of the Actually, injuria inherently nonactionable. otherwise or in cause of negligence proximate a fact of while the injury remedy provided is immaterial, jury made in the forum created. may be enforced which busi on the operator, based special negligent defense of the plaintiff, and the relationship ness and status Law, is Compensation of Workmen’s oper negligence It is to the owner. available imputed to the ator, liability his status, and not which or therefor negligence being imputed, liability owner. The is his own. Ry. Forty-Second & N.
In Schwartz M. A. Co. St. St. 752], problem 175 Misc. N.Y.S.2d a similar presented as York application New Law, provides “Every Vehicle part and Traffic which owner operated upon of a motor public highway vehicle . . . person responsible injuries shall liable and death or property resulting or negligence operation ., such motor vehicle . . owner other the business of such or wise, by any person legally using operating same with or permission, (Laws express implied, of such owner.” N.Y. 1929, 82.) pro vol. ch. The trial court there p. that, ceeded theory on York because virtue New Workmen’s Compensation employee Law the cannot maintain an action co-employee (the negligent operator), logically “it cannot follows that he maintain one person another owner of the sole [the vehicle] whose (P. 'derives from the a co-employee.” 754 of 22 N.Y.S.2d.) only dealing This directly is the case with *12 question which has come our It not ap to attention. does pear to presented higher have been to a court. As indicated above, an approach present ignore such in the would case meaning and purpose imputed of our statute.
Hence, impelled and to a given, for the other reasons we are contrary conclusion.
It is
does
observed also that
Labor Code
purport
not
rights
to alter the
and liabilities
correlative
persons
occupy
who
not
reciprocal
do
statuses of em
ployer
compensation
and employee. Our
laws
workmen’s
were
designed
relieve one other than the
any
from
liability imposed by
common law.
statute
“The claim of an employee
does not affect
his claim or right
damages
all
re
proximately
action for
sulting
injury
person
against any
or death
other
’’
than
employer.
(Lab.
Code, 3852; see, also, Stack
§
pole
v.
Gas & Elec.
(1919),
Co.
181 Cal.
[186
Pacific
354];
P.
Van
(1922),
Cal.App. 164,
Zandt
Sweet
v.
860];
(1926),
P.
Driscoll
St. Cable B. Co.
v. California
215 been may have bailor any judgment to which amount the bailed negligent use of by the bailee’s subjected reason of law elementary in the is However, it property. the bailor damages in responsible is that a bailee bailments fail a resulting from property the bailed any injury for in pro degree of care proper a exercise ure of the bailee to 297, 19 Cal.2d (1942), Wraith Milgate (See v. it. tecting Cal.App.2d 40 (1940), Brown Roland 10]; 303 v. P.2d [121 for the is the bailment 138].) “Where Supp. 825 P.2d [104 great care to exercise bailee, he is bound sole benefit of also, 29; see, Civ. 280, diligence” (8 C.J.S. extraordinary § bailee, negligence of the through “Where, Code, 1886); and § en is . . the bailor injured . in his hands is property bailed reasonably compensate will a sum titled to recover such as §294; 379, (6 Am.Jur. injury . . .” him for the sustained neg- in 1889.) Rogers, If Dr. Code, see, also, Civ. § in- had plaintiff, into the ligently backing Warnock’s car above that under jured we doubt but the vehicle have no be liable he would of bailments principles stated of the law damage property. Warnock for the to the bailed fact damage- bailee that the employee that it was with This wholly immaterial. causing collision occurred would case principle, satisfied, equally applicable is we are correla- independent and as before us insofar concerns operator rights obligations of the owner and of tive as between them. Ve 402(a) of the suggested, section
As hereinabove in modify the law of bailments operated has hicle Code is con state, of motor vehicles this insofar the bailment for the cerned, responsibility in places upon that it the bailor property. of the bailed operation bailee’s in cre thus reciprocity In the nature among (d) provides, in (a), ated subdivision subdivision recovery had under things, “In other the event a im account of this section an owner on puted may . recover negligence, such . owner . recov any judgment and costs amount of the total ’’ to recover
ered of the owner such owner. The by subdivision negligent operator, thus created from the of a (d), every contract of bailment becomes an element of (1936), Ferdon (see Brown v. motor vehicle in this state (1937), 712]; Hales v. Snowden 226, Cal.2d P.2d 847]; Cal.App.2d P.2d Mueller Elba Oil 188, 204 961]; Co. 21 Cal.2d P.2d Fernelius (1943), 22 12]) Pierce and is now Cal.2d just effectively (of part of the law bailments motor vehicles) obligation is the California as bailee injury damages respond property to the bailed occa negligence. nothing sioned There obligation abrogates Labor Code which this on the imposed bailee the law of bailments. If the owner motor ve *14 hicle, on part, judgment without fault his suffers a based on imputed negligence the bailee, of his he becomes entitled to judgment recover the amount of and neg that costs from the ligent What may relationship bailee. been the have between plaintiff original the in the action and the bailee is imma bailee, in terial the action between bailor and the based exclusively independent, rights their upon correlative and obligations.
It been suggested holding may has that this tend to impose liability upon negligent e., double the operator; i. employee compensation to his for workmen’s and judgment against owner for the amount of the him aris ing injury. out of the same But the contention is not sound. be The owner will entitled judgment have credited on the against by any operator (or him amount paid his insur carrier) way by injury, ance for the and the amount by to be recovered bailor-owner from the bailee operator necessarily pro will be reduced tanto. (b)
4. Negligent Operator Proper (and The ais on Necessary) a Party the Facts Here though Even Defendant a Complete He Has (e) this Action. Subdivision Defense requires any “In Vehicle Code that ac against negligence tion imputed an owner account on imposed by operator this section the of said vehicle whose imputed shall party owner be made a upon defendant if can personal process service be had said operator within this State” and there follows further provision “Upon recovery that judgment, recourse shall against first be had property said so served.” In ease, although this mentioned recourse previously can against not “first had property at be of said [or all] operator” recovery against him, no can had he because and party must nevertheless be named as a defendant served process within with if such service can be had this state. though operator, even requires and the expressly so statute subject to the conditions plaintiff employer of he be the the action person interested compensation, is a any, if judgment, the amount of because owner amount least, at determine, may part well owner recovery by the owner-bailor impending potentially a bailee-operator. upon Rogers, trial defendant may upon new It be that this action to have application, be entitled separate will appears itus the record before him, dismissed as to but toas trial must be affirmed granting that the a new order single jointly, appear both defendants. Both defendants plaintiff “that judgment answer, and the entered dis- nothing that the action be . take this action and . . Rogers W. and A. Francis missed and that the L. defendants for their costs judgment against plaintiff Warnock have judgment it joint this $33.25.” the sum of As Rogers severally is neces- appear does not that defendant sarily exactly judgment, entitled cannot hold we granting improper. the order a new as to him is trial appealed The order affirmed as to both defendants. from is Gibson, J., Shenk, J., Carter, J., concurred. C. *15 TRAYNOR, J., Dissenting. recog- The majorityopinion damages plaintiff that from her em- nizes the cannot recover right her section 3601 the makes ployer, since of Labor Code remedy compensation to recover the exclusive workmen’s against effect, recovery it employer. however, her allows In damages against of the owner employer by holding the that damages of the vehicle can shift the for which he liable under is 402 of the employer the Vehicle to the because section of Code The employer. the relationship bailor-bailee him and between employer’s liability damages in case is thus deter- for such a the mined that he did not own the chance circumstance he operated. it, he negligently car that Had he owned would damages indirectly. for he directly be liable Because it, damages, indirectly does not own for he made liable actually. recovery my opinion but none the less It in policy the one the violate the case other would provisions Compensation the Workmen’s Law. (art. 21) XX, provides California Constitution §
all complete system matters of workmen’s com- essential to
218
pensation are the public policy state, binding upon the all departments government. of the state Pursuant pro this vision, Legislature complete has system rights enacted obligations the compensation injuries for for workmen employment. supersedes incident to their This system - statutory formerly governed common law that lia bility employers injuries employees, for to their and cov ers “the entire of injury field workmen in the course of employment.” (Western their Metal Supply Co. Pills v. bury, 407, 491, 172 390]; Cal. 415 1917E P. Ann.Cas. [156 Western Indemnity Pillsbury, 686, 170 692 Co. Cal. [151 398]; P. Alaska Packers’ Com,., Association v. Industrial Acc. 200 579, Cal. P. 926].) specified When conditions compensation arise, remedy provided law therein all statutory excludes other against or common law remedies injuries employees all in the course of their employment regardless they of the manner in which (De Cal.App. 310, occur. Carli Co., v. Associated Oil 282]; Liberty Superior Court, P. Ins. Mutual Co. v. 62 Cal.App.2d 344]; Matson P.2d Freire Navi gation Co., 809].) Cal.2d
Section 3601 of expressly the Labor Code denies employee any right remedy employer except compensation pursuant recover of the Workmen’s Compensation conditions Law: “Where the compensation exist, compensation, to recover such pursuant to the provisions is, except division as pro this vided in remedy against exclusive the em ployer for the injury Although or death.”* directed car, plaintiff’s owner of the claim 402 of under section practical Vehicle damages Code is a claim for effect employer. her opinion, majority Under the the em ployer, as negligent car, and not the owner, bears employee’s claim, the ultimate burden since the owner employer. can shift that burden to the Such recovery damages indirect employer, from the iswho re sponsible only payment specified application, *16 appellant * Seetion 3706 has no for had secured payment Section 3700. compensation by procuring insurance accordance with
219 Law, contrary to the Compensation is in the Workmen’s claim for law as a direct of that public policy damages against employer. expressly provides that 3600 of
Section the Labor Code compensation provided liability employer for the pro be, except shall Compensation Workmen’s Law liability any vided in 3706 “in whatso section lieu of other any liability “any per person.” Immunity ever to from liability son” clearly immunity any includes injury employee. owner of the car on to the account of This precludes liability imposed by than that other persons Compensation Workmen’s third for inde Law to pendent persons, example, claims of such for claims of such as, persons (Treat wrongful employee. Los death Angeles Gas & 82 Corp., Cal.App. Elec. 616 P. [256 447]; Llewellyn Works, Cal.App. McLain v. Iron 869]; P. Employers’ Gerini Co., Ins. Cal. Pacific App.2d 52, 54 499].) P.2d It preclude must therefore an employee’s damages claim for that has been converted into a person claim of the third for reimbursement for the satisfaction of employee’s damages. claim for majority opinion relies on section 3852 of Labor Code, provides, which “The claim employee of an for com pensation does not affect his claim or action for all damages proximately resulting injury from such or death against any person other than employer.” goes It on to allow the owner to judgment against have him credited on any paid by amount employer or his insurance carrier. The allowance of credit, however, such a contrary to the provisions in section 3852 and section 3856 that an who pays or obligated becomes pay compensation is subro gated up to the amount obligation of his employee’s claim against the person. (National third Automobile Ins. Co. v. Cunningham, Cal.App ; .2d 828 643] Morris Co., v. Standard Oil If 605].) Cal. P. provision in section 3852 of the Labor relied Code majority opinion applicable, the rest that section must likewise applicable, paradoxical neg with A results. ligent employer, who cannot be sued in a common action law for damages, is nevertheless held liable to the owner damages car for less the amount of workmen’s paid employee, but the is in neg- owner turn liable to his
220 of the amount workmen’s that ligent bailee for required pay injury resulting the from for the bailee by the the hold of vehicle bailee. To negligent operation the permit bailee-employer the operative is that section 3852 though only his even the for against bailor basis to recover liability negligence bailee, the' of the is the would bailor’s principle set forth section 3517 the the of be a violation of advantage wrong. one take that no can of his own Civil Code that the operator-employer is The conclusion inevitable damages directly indirectly. either or The not liable for the owner can held for question remains whether be liable regardless nonliability of the employee of the damages the my employer’s that since opinion It is the liabil- employer. by the Workmen’s ity completely Compensation covered employer of liability part on the the remains for no Law person can be liable. which third holding on majority opinion relies cases that the own The 402 of the liability Vehicle Code is in under section er’s liability,” and direct primary form “a concludes liability by is not affected the fact that the em the owner’s against of action ployee right has no because driving the negligence These cases of the latter’s car. adjudication liability final of the of the lack of hold (Holland Kodimer, operator of v. 11 Cal.2d 43 the car Valley Packing Co., Kern 6 843]; P.2d Broome v. Cal. [77 430]) disappearance operator of the 256 P.2d App.2d [44 injury (Sutton Tánger, Cal.App. subsequent to the v. (Sayles Peters, 11 521]) Cal.App. death P.2d or his [1 ; Deasy, 19 Cal.App.2d 2d 401 P.2d Lee 94] 175]; Cunningham, Ins. National Automobile Co. v. P.2d statutory 643]) not Cal.App.2d 828 does affect liability follow, however, does not that be of the owner. It not of of the automobile need cause plaintiff can recover by judgment be determined before imputed held for owner, the latter can liable negligence operator despite specific provisions recovery damages the em barring any Labor Code ployer-operator. (Lab. Code, 3600, 3601.) Again, §§ be operator car abatement of an action prohibition materially of his from the cause death differs The Compensation such an action the Workmen’s Law. the crea abatement of the action death succeeds personal injury tion is lost claim, of the and the claim for Goodwin, (Clark v. personal character. of its because 1 Cal. 1142]; see 1916A L.R.A. 527, 531 P. Cal. wrongdoer death because 71.) Abatement Jur. liabilities relationship, only personal affects wrongdoer. death before co-obligors that existed of dam- recovery denies Law Compensation Workmen’s char- personal not because employer, ages the ef- insure injury, but personal the claim acter of damages An action system. operation of its own fective for the remedy appropriate regarded is not as the Law, there- Compensation *18 Workmen’s employer. pre- but created has been fore, abate a claim does not arising. vents it from ever Edmonds, J., concurred.
Curtis, J., and May 29, rehearing denied for a Appellants’ petition for a Traynor, J., voted Edmonds, J., and Curtis, J., 1944. rehearing. May 1, 18889. In Bank. A. No. 1944.]
[L. MURANE, MILLARD TABATA, Respondent, v. GEORGE S. etc., Appellant. Executor,