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Reports of Al Decisions Rendered in Compensation
and Federal Employers' Liability Cases in the
Federal Courts and in the State

Appellate Courts

William Otis Badger, Jr., Editor

R. M. Chandor, Manager

Volume VI

New York

Published by C. C. Hine'. Sons Co.

21 Platt Street

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The Workmen's Compensation Law Journal

Volume VI

July, 1920

No. 1

Reports of All Decisions Rendered in Compensation and Federal Employers' Liability Cases in the Federal Courts and in the State Appellate Courts.

DOMINGUEZ ET AL. v. PENDOIA. ( Civ. 3280.) (District Court of Appeal, First District, Division 2, California. Feb. 20, 1920. Hearing Denied by Supreme Court April 15, 1920.) .

188 Pacific Reporter, 1025. 1. MASTER AND SERVANT-INJURIES TO EMPLOYEE WHILE

TRANSPORTED TO WORK BY MASTER ARISE OUT OF
EMPLOYMENT WITHIN COMPENSATION ACT.

Where employee was killed by being thrown from an automobile furnished by the master to transport the employees to the place of work, his injuries arose out of and in the course of employment within the Workmen's Compensation Act.

(For other cases, see Master and Servant, Dec. Dig. § 375[2].) 2. CONSTITUTIONAL LAW-JURY – MASTER AND SERV

ANT-COMPENSATION ACT NOT INVALID AS DEPRIVING
COURTS OF JURISDICTION AND PARTIES OF RIGHT TO
JURY.

Under Const. art. 20, § 1772, providing that no consticional provision shall limit the Legislature's authority to confer on a commission power to carry out legislation for the welfare of employees, and section 21 as adopted in 1911, authorizing provision for settlement by arbitration, by a board, or by the courts, of disputes involving the liability of employers, the Workmen's Compensation Act is not unconstitutional either as depriving parties of their right to trial by jury, guaranteed by article 1, § 7, or as depriving courts of their jurisdiction.

(For other cases, see Constitutional Law, Dec. Dig. § 56; Jury, Dec. Dig. § 31(1); Master and Servant, Dec. Dig: § 347.) 3. MASTER AND SERVANT-FAILURE TO GIVE NOTICE UN

DER COMPENSATION ACT DOES NOT GIVE COURT JURISDICTION. Though the failure to give notice of accident required by Workmen's Compensation Act, § 15, may deprive the Industrial Accident Commission of jurisdiction, such failure does not give the court jurisdiction of an action for damages.

(For other cases, see Master and Servant, Dec. Dig. § 398.)

Appeal from Superior Court, Santa Barbara County; S. E. Crow, Judge.

Action by Mary Dominguez and others against A. L. Pendoia. From an order sustaining demurrer to the complaint without leave to amend, plaintiffs appeal. Affirméd.

B. F. Thomas, of Santa Barbara, for appellants.
Carroll S. Bucher, of Salt Lake City, Utah, for respondent.

A. E. Graupner, of San Francisco, amicus curiæ on behalf of Industrial Accident Commission.

LANGDON, P. J. This is an appeal from an order sustaining a demurrer to a complaint, without leave to amend. The action was brought by the widow and minor children of Alfredo Dominguez, deceased, to recover damages for the death of said deceased, alleged to have been caused by the negligence of the defendant. The complaint alleged that on the 4th day of February, 1918, the deceased was in the employ of the defendant, who was constructing a water reservoir for the city of Santa Barbara ; that the defendant furnished transportation to his employes engaged in working on said reservoir to and from their homes in said city to said reservoir by means of a trunk automobile driven by an employe of the said defendant, which automobile had not any means by which one riding on said automobile, when driven rapidly over rough roads or roads having short turns, could prevent himself from being thrown from said automobile; that on the morning of the accident, while the deceased with other employes of the defendant was being transported in defendant's automobile from Santa Barbara to said reservoir to engage in work for the defendant on the reservoir, the driver of the automobile, willfully, negligently, and without proper care, drove said automobile at the rate of about 25 miles an hour around a very short and dangerous turn in the road to said reservoir, and the deceased and two other employes of the defendant were thrown from the automobile with great force and violence, whereby the deceased was instantly killed.

The defendant urged as ground of demurrer that the superior court of Santa Barbara, in which court the complaint was filed, was without jurisdiction of the said action, and that the Industrial Accident Commission of the state of California had sole and exclusive jurisdiction of the

same.

[1] The first question to be disposed of upon the appeal is: Do the facts stated in the complaint bring the action within the provisions of the Workmen's Compensation, Insurance and Safety Act of this state (St. 1917, p. 831), so as to give the Industrial Accident Commission jurisdiction? We are of the opinion that they do. Where transportation is furnished by an employer, as an incident of the employment, to convey an employe to and from the place of employment, an injury suffered by the employe going or coming in the vehicle so furnished by the employer, and under the control of the employer, arises out of and is in the course of the employment within the meaning of the compensation act. In re Donovan, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778; Matter of Littler v. Fuller Co., 223 N. Y. 369, 119 N. E. 554; Bradbury's Workmen's Compensation (3d Ed.). pp. 480-484, and cases there cited : Judson Mfg. Co. v. Industrial Acc. Com., 184 Pac. 1; Starr Piano Co. v. Industrial Accident Commission, 184 Pac. 860.

It is true the case of Ocean Accident & Guarantee Corp. v. Industrial Accident Commission, 173 Cal. 313, 159 Pac. 1041, L. R. A. 1917B, 336, which was based upon the English decisions, contains the statement that an employe going to and from his place of employment is not rendering any service, and begins to render such service only when he arrives at his place of employment and proceeds to use some instrumentality provided by means of which he immediately places himself in a position to perform his tasks. But nowhere in that decision is the legal situation discussed which is presented when an employe, as a part of his contract of employment, is proceeding to his work in a conveyance furnished by his employer and driven by the employer's agent. The appellant argues that the ownership of the conveyance can have no bearing upon the question involved, and in this we disagree with counsel. The logical difference between a situation where the employe is proceeding to work in a conveyance or by a means used by the general public, and where he is proceeding to work by means of an instrumentality furnished to him as an employe, by his employer, is indicated in one of the English cases discussed in the Ocean Accident Case, supra (Leach v. Oakley Street & Co., 4 B. W. C. C. 91). In the quotation from this English case which is inserted in the Ocean Accident decision, it is indicated that, in order to recover under the Workmen's Compensation Act, it is necessary for the employe to have suffered his injury, not because of a danger to which he was exposed as a member of the general public, but by reason of a danger to which he was exposed as an employe in his particular employment. And it seems to us that this is not only the logical dividing line, but it is the dividing line contemplated by the very purpose of the compensation laws in their effori to place upon an industry the burdens of injuries directly due to the hazard incidental to the industry. In the present case, if deceased had been riding upon a public conveyance, although he was on his way to his work, he would have been subject to the same dangers as any other member of the general public, and if he suffered an accident it would be as a member of the general public and due to a risk which he, in common with other members of the public, ran. But when he enters a vehicle provided by his employer for the purpose of conducting him to the place of his employment, he enters that vehicle, not as a member of the public, but as employe of the defendant. In other words, the danger to which plaintiffs' decedent was exposed in riding in this automobile, alleged to have been unprotected, and without guards or rails, and driven by a negligent driver, was a danger to which he was exposed, not as a member of the public, but because, and only because he was an employe of the defendant. This danger was an incident to his employment; it arose out of his employment, and was within the scope thereof.

The Workmen's Compensation, Insurance and Safety Act gives the Industrial. Accident Commission exclusive jurisdiction of actions arising out of injuries under the circumstances presented here, and the superior court of the county of Santa Barbara was without jurisdiction.

Appellant seeks to avoid the force of these facts by attacking the constitutionality of the Workmen's Compensation, Insurance and Safety Act. It is asserted that the act is unconstitutional beciuse it divests an injured employe, or the representatives of a deceased employe, of the right of trial by jury in violation of section 7, art. 1, of the Constitution of this state ; that the act is also unconstitutional because it deprives the superior courts of this state of the jurisdiction conferred upon them by section 5, art. 6, of the Constitution.

(2) While these precise points were not urged, apparently, in the case of Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151. Pac. 398, the court in that case commented upon the objection raised in other states that similar acts were unconstitutional because they deprived both employer and employe of the right to trial by jury, saying that this objection had no application to the law in this state, "for although our Constitution has always contained a provision securing the right of trial by jury (article 1, § 7), the Legislature is, as we have already pointed out, expressly authorized by section 21 of article 20 to provide for the settlement by arbitration, by a board, or by the courts, of disputes involving the liability of employers. This section, adopted in 1911, worked a repeal pro tanto, of any conflicting provision which may have been in force theretofore.” The language above quoted, in connection with the language of sections 17/ and 21 of article 20 of the Constitution of California, is a complete answer to both contentions of the appellant upon this question.

[3] We may very briefly dispose of the only other point raised by the appellant, which is that as section 15 of the Workmen's Compensation Act provides that no claim to recover compensation under the act shall be maintained unless within 30 days after the occurrence of the injury notice in writing shall be served upon the employer, etc., and, as the complaint in this case does not allege that such notice was served, it does not appear that the Industrial Accident Commission had jurisdiction. Appellant argues that if, by reason of the omission of notice, the Industrial Accident Commission had no jurisdiction, then the superior court would acquire jurisdiction. In the first place, the requirement of written notice contained in section 15 is not absolute, and facts may appear which would make the written notice unnecessary to the jurisdiction of the Industrial Accident Commission under the express language of the section. But be that as it

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