Baugh v. Rogers

TRAYNOR, J.,

Dissenting. The majority opinion recognizes that the plaintiff cannot recover damages from her employer, since section 3601 of the Labor Code makes her right to recover workmen’s compensation the exclusive remedy against her employer. In effect, however, it allows recovery of damages against the employer by holding that the owner of the vehicle can shift the damages for which he is liable under section 402 of the Vehicle Code to the employer because of the bailor-bailee relationship between him and the employer. The employer’s liability for damages in such a case is thus determined by the chance circumstance that he did not own the car that he negligently operated. Had he owned it, he would not be liable for damages directly or indirectly. Because he does not own it, he is made liable for damages, indirectly but none the less actually. It is my opinion that recovery in the one case as in the other would violate the policy and provisions of the Workmen’s Compensation Law.

The California Constitution (art. XX, § 21) provides that all matters essential to a complete system of workmen’s com *218 pensation are the public policy of the state, binding upon all departments of the state government. Pursuant to this provision, the Legislature has enacted a complete system of rights and obligations for the compensation of workmen for injuries incident to their employment. This system supersedes the statutory and common law that formerly governed - the liability of employers for injuries to their employees, and covers “the entire field of injury to workmen in the course of their employment.” (Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 415 [ 156 P. 491 , Ann.Cas. 1917E 390]; Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 692 [ 151 P. 398 ]; Alaska Packers’ Association v. Industrial Acc. Com,., 200 Cal. 579, 583 [ 253 P. 926 ].) When conditions specified in the compensation law arise, the remedy therein provided excludes all other statutory or common law remedies against the employer for all injuries to employees in the course of their employment regardless of the manner in which they occur. (De Carli v. Associated Oil Co., 57 Cal.App. 310, 311 [ 207 P. 282 ]; Liberty Mutual Ins. Co. v. Superior Court, 62 Cal.App.2d 601 [ 145 P.2d 344]; Freire v. Matson Navigation Co., 19 Cal.2d 8, 10 [ 118 P.2d 809 ].)

Section 3601 of the Labor Code expressly denies to the employee any remedy against the employer except the right to recover compensation pursuant to the provisions of the Workmen’s Compensation Law: “Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is, except as provided in section 3706, the exclusive remedy against the employer for the injury or death.” * Although directed against the owner of the car, the plaintiff’s claim under section 402 of the Vehicle Code is in practical effect a claim for damages against her employer. Under the majority opinion, the employer, as the negligent operator of the car, and not the owner, bears the ultimate burden of the employee’s claim, since the owner can shift that burden to the employer. Such indirect recovery of damages from the employer, who is responsible only for the payment of compensation as specified *219 in the Workmen’s Compensation Law, is as contrary to the public policy and provisions of that law as a direct claim for damages against the employer.

Section 3600 of the Labor Code expressly provides that liability of the employer for the compensation provided by the Workmen’s Compensation Law shall be, except as provided in section 3706 “in lieu of any other liability whatsoever to any person.” Immunity from liability to “any person” clearly includes immunity from any liability to the owner of the car on account of the injury to the employee. This section precludes liability other than that imposed by the Workmen’s Compensation Law to third persons for independent claims of such persons, as, for example, claims of such persons for wrongful death of the employee. (Treat v. Los Angeles Gas & Elec. Corp., 82 Cal.App. 610, 616 [ 256 P. 447 ]; McLain v. Llewellyn Iron Works, 56 Cal.App. 60, 62 [ 204 P. 869 ]; Gerini v. Pacific Employers’ Ins. Co., 27 Cal.App.2d 52, 54 [ 80 P.2d 499 ].) It must therefore preclude liability for an employee’s claim for damages that has been converted into a claim of the third person for reimbursement for the satisfaction of the employee’s claim for damages.

The majority opinion relies on section 3852 of the Labor Code, which provides, “The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer.” It goes on to allow the owner to have credited on the judgment against him any amount paid by the employer or his insurance carrier. The allowance of such a credit, however, is contrary to the provisions in section 3852 and section 3856 that an employer who pays or becomes obligated to pay compensation is subrogated up to the amount of his obligation to the employee’s claim against the third person. (National Automobile Ins. Co. v. Cunningham, 41 Cal.App.2d 828 [ 107 P.2d 643 ] ; Morris v. Standard Oil Co., 200 Cal. 210 [ 252 P. 605 ].) If the provision in section 3852 of the Labor Code relied upon in the majority opinion is applicable, the rest of that section must likewise be applicable, with paradoxical results. A negligent employer, who cannot be sued in a common law action for damages, is nevertheless held liable to the owner of the car for damages less the amount of workmen’s compensation paid the employee, but the owner is in turn liable to his neg *220 ligent bailee for the amount of workmen’s compensation that the bailee was required to pay for the injury resulting from the negligent operation of the vehicle by the bailee. To hold that section 3852 is operative to permit the bailee-employer to recover against his bailor even though the only basis for the bailor’s liability is the' negligence of the bailee, would be a violation of the principle set forth in section 3517 of the Civil Code that no one can take advantage of his own wrong.

The conclusion is inevitable that the operator-employer is not liable for damages either directly or indirectly. The question remains whether the owner can be held liable for damages to the employee regardless of the nonliability of the employer. It is my opinion that since the employer’s liability is completely covered by the Workmen’s Compensation Law no liability on the part of the employer remains for which a third person can be liable.

The majority opinion relies on cases holding that the owner’s liability under section 402 of the Vehicle Code is in form “a primary and direct liability,” and concludes that the owner’s liability is not affected by the fact that the employee has no right of action against his employer because of the latter’s negligence in driving the car. These cases hold that lack of final adjudication of the liability of the operator of the car (Holland v. Kodimer, 11 Cal.2d 40, 43 [ 77 P.2d 843 ]; Broome v. Kern Valley Packing Co., 6 Cal.App.2d 256 [ 44 P.2d 430 ]) or disappearance of the operator subsequent to the injury (Sutton v. Tánger, 115 Cal.App. 267 [ 1 P.2d 521 ]) or his death (Sayles v. Peters, 11 Cal.App.2d 401 [ 54 P.2d 94 ] ; Lee v. Deasy, 19 Cal.App.2d 667 [ 66 P.2d 175 ]; National Automobile Ins. Co. v. Cunningham, 41 Cal.App.2d 828 [ 107 P.2d 643 ]) does not affect the statutory liability of the owner. It does not follow, however, that because the liability of the operator of the automobile need not be determined by judgment before the plaintiff can recover against the owner, the latter can be held liable for imputed negligence of the operator despite specific provisions of the Labor Code barring any recovery of damages from the employer-operator. (Lab. Code, §§ 3600, 3601.) Again, the abatement of an action against the operator of the car because of his death differs materially from the prohibition of such an action by the Workmen’s Compensation Law. The abatement of the right of action by death succeeds the creation of the claim, and the claim for personal injury is lost *221 because of its personal character. (Clark v. Goodwin, 170 Cal. 527, 531 [ 150 P. 357 , L.R.A. 1916A 1142 ]; see 1 Cal. Jur. 71.) Abatement because of the death of the wrongdoer affects only the personal relationship, not the liabilities of co-obligors that existed before the death of the wrongdoer. The Workmen’s Compensation Law denies recovery of damages against the employer, not because of the personal character of the claim for personal injury, but to insure the effective operation of its own system. An action for damages is not regarded as the appropriate remedy for the negligence of the employer. The Workmen’s Compensation Law, therefore, does not abate a claim that has been created but prevents it from ever arising.

Curtis, J., and Edmonds, J., concurred.

Appellants’ petition for a rehearing was denied May 29, 1944. Curtis, J., Edmonds, J., and Traynor, J., voted for a rehearing.

Seetion 3706 has no application, for appellant had secured the payment of compensation by procuring insurance in accordance with Section 3700.