149 P. 586 | Cal. | 1915
Petitioners seek a writ of certiorari to review the proceedings of the Industrial Accident Commission *322 resulting in an award by said commission to one Jeremiah Broderick of compensation for personal injuries alleged to have been received by him in the course of his employment by the San Francisco Stevedoring Company.
The only point made in support of the application is that the industrial commission was without jurisdiction by reason of the fact that Broderick prior to instituting his proceeding before the industrial commission, instituted an action for damages on account of the same injuries against the stevedoring company, in the superior court of the city and county of San Francisco. A demurrer to his complaint interposed by the company was sustained by said court, and on his failure to amend, judgment was given against him. At the time of the award by the industrial commission, Broderick had filed a waiver of his right of appeal. It is claimed that by commencing his action in the superior court, Broderick finally elected his remedy and thus deprived the commission of jurisdiction in the matter, and also that the superior court judgment is a final determination of his rights in the matter.
We are satisfied that there is no force in this claim. The industrial compensation act provides substantially that where the specified conditions of compensation exist, the right to recover such compensation in a proceeding before the commission shall be the exclusive remedy of the employee, "except that when the injury was caused by the employer's gross negligence or willful misconduct and such act or failure to act causing such injury was the personal act or failure to act on the part of the employer himself, . . . and such act or failure to act indicated a willful disregard of the life, limb or bodily safety of employees, any such injured employee may, at his option, either claim compensation under this act or maintain an action at law for damages." It will thus be seen that the right of the employee to resort at his option to an action at law for damages is restricted to the class of cases specified in the provision just quoted, viz.: cases where the injury was caused by the employer's gross negligence or willful misconduct of a certain specified character. The judgment of the superior court in Broderick's action simply determines that the allegations of his complaint failed to state a case of this character, and therefore that the proper tribunal for the adjudication of his claim is the industrial accident commission. Nothing else can be held to have been *323 determined against him. He cannot be held to be estopped thereby from pursuing his remedy before the commission, nor can the commission be held to have been without jurisdiction of the proceeding instituted by him.
The application for a writ of certiorari is denied.
Lorigan, J., Shaw, J., Henshaw, J., and Lawlor, J., concurred.
