20 P.2d 673 | Cal. | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *620 THE COURT.
This is a petition to review an award of the Industrial Accident Commission. The cause was before the District Court of Appeal, Fourth Appellate District, and an opinion was rendered therein by Mr. Justice pro tem. Harden, which we incorporate in part as a correct presentation of the facts and a proper determination of certain issues. The portions of said opinion which we incorporate are as follows:
"Some time prior to January 24, 1928, Mrs. Sarah D. Allen was appointed by the County of San Bernardino as deputy registrar of voters of said county. She was of the age of about seventy-five years at that time. Joseph C.P. Hook, deputy city clerk of Redlands in said county, administered the oath of office. No particular term of employment was fixed in her appointment, but it was contemplated that she would act until thirty days prior to the presidential primary election on May 1, 1928. It was stipulated by the parties hereto that the relation existing between Mrs. Allen and the county could have been terminated at any time without liability to either party. While she had the legal right to register any qualified elector in the county, she was assigned by said deputy city clerk to a certain district in the city of *621 Redlands, definitely marked by reference to designated streets, for the purpose of securing registrations. Other persons were engaged by the county to perform similar services in districts assigned to them. Mrs. Allen was not required to work any particular number of hours, nor on any particular days. Aside from the assignment to the particular district, the only instructions given her were printed on a pad of registration blanks and covered the law upon the subject of the registration of electors. She had had previous experience in the same work. In securing registrations she followed her own methods and furnished her own transportation. Payment for services rendered was at the rate of eight cents per capita for registrations secured; and up to the time of the accident involved herein she had earned an average of about $1.50 per day for the time devoted to the work, amounting in all to $28. On January 24, 1928, while engaged in securing registrations within her district, a question arose as to whether she should register certain school teachers who resided within the district but were employed at the time at a point beyond the boundaries thereof. Being uncertain as to her rights and duties under the circumstances, Mrs. Allen proceeded toward the office of said deputy city clerk to secure advice and directions from him upon the subject. While walking upon the sidewalk within the boundaries of the district assigned en route to consult said deputy city clerk for said purpose, she was struck by colliding automobiles, with the result that she sustained serious injuries. The county had no connection with either automobile involved in the collision. No action was filed to recover damages for the injuries sustained. On July 20, 1928, Mrs. Allen effected a settlement and was paid $3,500 by an insurance company in behalf of one of the parties involved in the collision, in consideration of which payment she signed a full release of said party from all claims and causes of action on account of injuries sustained by her and damage to her property. The settlement was made without the knowledge or consent of the county; neither did the Industrial Accident Commission nor any court consent thereto.
"Pursuant to proceedings instituted by Mrs. Allen before the Industrial Accident Commission on January 10, 1929, for compensation for said injuries, a final decision was rendered *622 by the Commission in favor of the petitioner therein on March 7, 1932. It was found by the Commission that at the time of the injury Mrs. Allen was employed as a deputy registrar of voters by the County of San Bernardino; that the injuries sustained arose out of and in the course of her employment; that the employer was uninsured and that both employer and employee were subject to the provisions of the Workmen's Compensation Insurance and Safety Act; that Mrs. Allen was entitled under the provisions of said act to $675.54 for permanent disability and to $2,225.70 for her reasonable medical expenses, making a total of $2,901.24; and an award was made against the County of San Bernardino for that amount, less $75 payable to her attorney. The decision further recites: `The said applicant received the sum of $3,500.00 under a settlement with the third party causing the injury, no part of which sum has been received by the defendant herein (the County of San Bernardino). Testimony was duly presented to this Commission tending to establish that of the said amount of $3,500.00 the sum of $1,000.00 represented, under agreement of the parties to said settlement, the element of pain and suffering caused by said injury as distinguished from compensable disability and expenses.' The Commission held, however, that it had no jurisdiction to make a judgment segregating any portion of the amount received in the settlement, nor to grant any credit to the county upon its liability. The county has not paid Mrs. Allen anything as compensation under said act.
[1] "The first point raised in this proceeding is that at the time of the injury Mrs. Allen was not an employee within the meaning of that term as defined by the Compensation Act; that, on the contrary, she was an independent contractor. By the terms of section 8 (a) of said act the term `employee' is defined to mean: `. . . all elected and appointed paid public officers, . . . but excluding any person whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer.' An `independent contractor' within the meaning of said act is held in Fidelity Casualty Co. v. Industrial Acc.Com.,
[6] Petitioner also makes the point that the Commission erred in allowing certain charges made for medical care and treatment. We are satisfied, from a careful study of the record, that the evidence before the Commission was sufficient to justify its determination in this regard, and that no useful purpose would be served by a detailed enumeration of the items and the supporting evidence.
[7] The important question in this appeal, for the consideration of which this court ordered a hearing, is whether the Commission should have granted to petitioner, the employer, a credit for a portion of the amount received by settlement with the third party. It appears that in making the settlement, the parties had in mind the sum of $2,500 as compensation for the injury, and $1,000 for pain and suffering. Since the elements of pain and suffering are not compensable by the Commission (seeJacobsen v. Industrial Acc. Com.,
Prior to the decisions of this court in Jacobsen v.Industrial Acc. Com., supra, and Zurich Gen. Acc. etc. Ins.Co. v. Industrial Acc. Com.,
It is suggested, however, that since the employee entered into the settlement without notice to the employer and consequently in violation of the act, the settlement agreement was void, and the employer could claim no credit based upon receipt by the employee of money under such settlement. The implications of such a conclusion are somewhat startling. *627 On its face it results in a double recovery by the employee as a reward for her own violation of the law. In theory, of course, the employer could sue the third party for reimbursement of its expenditures for compensation, provided that the statute of limitations had not already run; as a practical matter, it would seem that the statute has already barred this right of action. However, the statute may not, perhaps, have run upon the right of the third party to recover money paid to the employee under a void contract, in which case the responsible third party might be wholly absolved, and the innocent employer held responsible for full compensation, and all because of the wrongful act of the employee. The absurdity of this result both on the merits and because of the multiplicity of suits which it engenders indicates the unsoundness of the view contended for. In our opinion, the provision of the statute requiring notice to the employer is intended solely for his benefit, and a violation thereof should, no doubt, render the settlement voidable at his election, but certainly not void where the result would be injurious to his interests. It should not be possible for the employee, having received the benefits of the settlement, thereafter to assert its invalidity in order to reap a further profit. The settlement must, we think, be considered valid as against the employee because the employer does not attack its validity, and the employee has received a benefit therefrom.
No positive statutory provision operates, as it did in the Jacobsen case, to prevent the granting of a credit in this proceeding. The evidence of segregation made by the parties of the sums received in settlement was sufficiently clear and definite for the Commission to determine that $1,000 thereof was allocated to pain and suffering, and that this item should not be included in the credit. It would seem, therefore, that the Commission, in order to prevent a gross perversion of the purpose of the statute, should grant the requested credit.
We reach this same conclusion on another ground. In 1931, following the decision in the Jacobsen case, the legislature amended section 26 of the Workmen's Compensation Act to provide expressly for the power denied in that case. The relevant provision now reads: "The Commission is empowered to and shall allow a credit to the employer to be *628 applied against his liability for compensation the amount of any recovery by the employee for his injury, either by settlement or after judgment, that has not theretofore been applied to reimburse the employer." While the injury to Mrs. Allen was sustained prior to the enactment of this amendment, the decision and award of the Commission, which are here attacked, were made after the amendment went into effect. How, then, could the Commission disregard it in arriving at its determination? As a matter of interpretation, the amendment in its language plainly applies to any case before the Commission at the time of its effective operation. There is nothing in its wording to suggest that it was not intended to apply to cases where the injury occurred prior thereto. Nor is there any policy opposed to such application. The amendment was designed to permit the Commission to do what the court theretofore alone could do — prevent double recovery by crediting the employer with the employee's recovery against the third party. Its application in the instant case would avoid a multiplicity of actions and the unfair result already discussed.
[8] The same factors determine the question of constitutionality. Assuming that the statute, as above interpreted, may be called a retrospective law because it applies to a situation which took place before its enactment, this by no means leads to the conclusion that its application violates the Constitution. [9] Invalid retrospective legislation falls into three classes: ex post facto laws, or retrospective criminal statutes; laws impairing the obligation of contract; and laws which deprive a person of a vested right. (See Los Angeles v.Oliver,
In Los Angeles v. Oliver, supra, numerous cases were reviewed, and the governing principle was correctly stated, as follows (
The above-quoted opinion, which dealt with the application of a statutory change to pending proceedings in eminent domain, contains other language which seems peculiarly applicable here. Quoting first from Pacific Gas Electric Co. v. Chubb,
Other illustrations of this principle may be easily found. Thus, in City of Chicago v. Industrial Commission,
The conclusion necessarily follows that the Commission erred in refusing to credit the employer on its liability for compensation, in the amount claimed. It is therefore ordered that the award be annulled, and the cause is remanded for further proceedings not inconsistent with this opinion.
Mr. Justice Curtis, deeming himself disqualified, did not participate in the foregoing opinion. *631