"We think the sounder view is that the mere fact that testimony has been given at a former trial does not necessarily constitute a waiver which is irrevocable at a subsequent trial of the cause. In this view of the matter, we are influenced not only by what seems to us to be the better reason, but by the well-considered opinions of other courts. Briesenmeister v. Supreme Lodge Knights of Pythias, 81 Mich. 525, 45 N. W. 977; Burgess v. Sims Drug Co., 114 Iowa, 275, 86, N. W. 307, 54 L. R. A. 364, 89 Am. St. Rep. 359. "In the Iowa Case cited above, Mr. Justice McClain, speaking for the court, said: "As to the testimony at the former trial, it seems to us that the waiver resulting therefrom should be confined to the trial in which the waiver is made. Our statute relates to the giving of testimony, not to the publication in general of the privileged matter, and it seems to us clear that any waiver resulting from the giving or introduction of testimony on a trial should be limited to that trial.' "In the same case, the court, in declining to follow the New York cases, said: "We do not agree to the reasoning in that case, which would seem to lead to the result that, if the privileged communication is in any way made public by the patient, the privilege is waived for all time; whereas, we understand to be well settled that a communication to a third person by the patient or client will not be a waiver of the right to insist on the privilege when it is sought to have the disclosure made by the way of testimony in open court."" Md. Casualty Co. v. Maloney, 119 Ark. 434, 178 S. W. 387-389, L. R. A. 1916A, 519. The instructions given to the jury are the ordinary instructions given in personal injury cases arising under the common law-as to negligence, contributory negligence, assumed risk, and safe place to work-and we would feel constrained to affirm the judgment but for the fact that, commingled with those instructions, are others submitting the issues under the Employers Liability Act. These last instructions, under the pleadings and the evidence, should not have been given. There are other assignments of error; but, as they do not go to the merits of the case and are not likely to occur upon another trial, we will not notice them. The judgment is reversed, and case remanded, with directions that further proceedings be had in accordance herewith. Cunningham, C. J., and Baker, J., concur. DISTRICT COURT OF APPEAL OF CALIFORNIA. HALL SOUTHERN PAC. CO. ET AL. (Civ. 2705.)* 1. PARTIES-PARTIES INTERESTED IN ACTION AGAINST PARTY CAUSING INJURY TO SERVANT RECEIVING AWARD UNDER COMPENSATION ACT. An injured employee, having made a claim and received an award under the Workmen's Compensation Act, may, in view of section 31 thereof and Code Civ. Proc. § 378, be joined as a party plaintiff, he having an interest, with his employer, or the latter's insurance carrier, in a suit against a third party whose tort has caused the injury. (For other cases, see Parties, Dec. Dig. § 6[2].) 2. PARTIES-JOINDER-ACTION AGAINST PARTY CAUSING SERVANT'S INJURY-MAKING MASTER DEFENDANT ON REFUSAL TO JOIN AS PLAINTIFF. Where an employer, after an award under the Workmen's Compensation Act, refuses to join the servant as a party plaintiff against the third party whose tort caused the injury, the servant may maintain the action alone by making the employer one of the defendants, in view of Code Civ. Proc. § 382, providing that, where one should be enjoined as a plaintiff refuses to consent thereto, he may be made a defendant. (For other cases, see Parties, Dec. Dig. § 35.) Appeal from Superior Court, City and County of San Francisco; John Hunt, Judge. Action by Betty T. Hall, individually and as guardian ad litem of Frederick William Hall, against the Southern Pacific Company and another. Judgment for defendants, and plaintiffs appeal. Reversed and remanded. Keyes & Erskine, of San Francisco, for appellants. A. L. Clark and Henley C. Booth, both of San Francisco, for respondent Southern Pacific Co. Edwin T. Cooper and H. K. Eells, both of San Francisco, for respondent Healy-Tibbitts Const. Co. HAVEN, L. This action was brought to recover damages for the death of Lucius Endicott Hall, Jr., which is alleged to have been caused by the negligence of the defendant Healy-Tibbitts Construction Company. Plaintiffs are the surviving widow and minor child of said deceased. At the time of the accident which caused his death the deceased was employed by the defendant Southern Pacific Company as a pile inspector and construction engineer, and was performing services growing out of and incidental to to such employment. After his death the plaintiffs filed a lawful claim against the defendant Southern Pacific Company for compensation for such death under the provisions of the Workmen's Compensation, Insurance and Safety Act (Stats. 1913, p. 279). Upon * Decision rendered, Feb. 21, 1919. Rehearing denied by Supreme Court April 21, 1919. 180 Pac Rep. 20. that claim the Industrial Accident Commission made an award in favor of the plaintiffs and against the defendant Southern Pacific Company, requiring payment by that company to plaintiffs of compensation in weekly installments; the total liability of the said defendant upon such award being $5,100. After the making of such award, the plaintiffs requested the defendant Southern Pacific Company to commence an action against the defendant Healy-Tibbitts Construction Company to recover damages for the death of said deceased, with the further request that the excess of any amount which might be recovered in such suit, over the liability of the defendant Southern Pacific Company to plaintiffs under the award, be paid to plaintiffs. The said defendant Southern Pacific Company refused to bring such action, whereupon this action was brought by plaintiffs, and the Southern Pacific Company was joined as a party defendant. The prayer is for judgment for the sum of $50,000 "in favor of the Southern Pacific Company, for the use of the plaintiffs." [1] To plaintiffs' complaint, alleging substantially the above recited facts, the defendants filed separate demurrers, both of which were sustained. Plaintiffs declining to amend, judgment was entered against, them from which they appeal. The sole question presented is whether or not plaintiffs can maintain this action against a third party, whose negligence alleged to have caused the death, after having made claim against the employer of the deceased for compensation under the provisions of the Workmen's Compensation Act, and received an award on such claim. The answer to that question depends on the proper construction to be given to section 31 of the act referred to, which, as far as is here material, reads as follows: "The making of a lawful claim against an employer for compensation under this act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative, or other person, may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce in his own name the legal liability of such other party, but any amount collected by the employer, under the provisions of this section, in excess of the amount paid by the employer, or for which he is liable, shall be held by him for the benefit of the injured employee or other person entitled." * * In the case of Marcel Bassot and Ocean Accident & Guarantee Corporation v. United Railroads of San Francisco, recently decided by division 1 of this court, suit was brought by an injured employee and his employer's insurance carrier jointly against the defendant corporation to recover damages caused by the latter's alleged negligence. The compensation due the employee under the Workmen's Compensation Act had been adjusted and paid by the insurance company; after which both joined as plaintiffs against the third party whose negligence was alleged to have been the cause of the injuries received. A motion for nonsuit was granted as against the plaintiff employee on the ground that he was improperly joined as a party plaintiff. The case was twice heard in the District Court of Appeal, and in both opinions the granting of such nonsuit was held to have been erroneous. In the decision on rehearing the court, in referring to section 31 of the above act, and adopting the language of the original opinion, says: "Respondent is correct in its contention that this section operates to transfer the legal title to the claim for damages to the employer or his surety, but it is also true that the employee still retains an equitable interest therein as to any surplus that may be recovered over the amount paid him by the employer, and he is therefore a real party in interest in the litigation. Although section 369 of the Code of Civil Procedure provides that a trustee of an express trust may sue without joining the person for whose benefit the action is prosecuted,' section 378 of that Code provides that 'all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except where otherwise provided in this title.' There is ample authority in this state to the effect that the provisions of section 369 are permissive only, and that the beneficiary of the trust may properly be joined as a party plaintiff with the trustee by virtue of section 378. Daley v. Cunningham, 60 Cal. 530; Cerf v. Ashley, 68 Cal. 419, 9 Pac. 658. It therefore follows that, while Bassot was not a necessary party to the suit, he was at all events a proper party thereto, and that the lower court was in error in granting the motion for a nonsuit and dismissing the action as to him." 26 Cal. App. Dec. 1003, on rehearing 177 Pac. 884. A petition to have the above case heard and determined by the Supreme Court, after judgment in this court, was denied by the Supreme Court on January 30, 1919. We are in entire accord with the construction of the statute announced in the above case. If we were not, we should be bound to consider that the opinions referred to, and the refusal of the Supreme Court to disturb the same, establish the law in this state to the effect that an injured employee, after having made claim and received an award under the Workmen's Compensation Act, may join as a party plaintiff with his employer, or the latter's insurance carrier, in a suit against a third party whose tort has caused the injury complained of. [2] The only remaining question in this case is whether, upon the refusal of the employer to join as plaintiff in such a suit, the injured employee, or the heirs at law of a deceased employee, may maintain the action alone by joining the employer as a defendant. If such power does not exist, the right of the injured employee or the heirs of the deceased employee, to protect their equitable interest in the surplus that may be recovered for their benefit, can easily be destroyed by the refusal of the employer to join as plaintiff. In such event, the plaintiffs in this action, having an established right to sue, would be denied that right by reason of the refusal of their trustee to protect their interests. The necessity of preventing such a denial of justice on broader grounds is obviated by the provisions of section 382 of the Code of Civil Procedure: "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint. Plaintiffs complied with, this section and, by virtue of its provisions, are entitled to maintain the action as sole plaintiffs. The judgment must be reversed, with instructions to the trial court to overrule the demurrers to plaintiffs' complaint; and it is so ordered. We concur: Langdon, P. J.; Brittain, J. SUPREME COURT OF COLORADO. OCEAN ACCIDENT & GUARANTY CORPORATION, Ltd. et al. V. PALLARO ET AL. (No. 9510.)* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -INJURIES "ARISING OUT OF AND IN COURSE OF EM- A mine watchman's death caused by explosion in blasting stumps for purpose of obtaining fuel for the cabin furnished by employer held to be due to accident arising "out of and in course of employment," within Laws 1915, c. 179, § 8 p. 522, as amended by Laws 1917, c. 155, § 4. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION -DEFENSES-NEGLIGENCE OF EMPLOYEE. In proceedings under Workmen's Compensation Act for compensation for death of employee while blasting with dynamite in course of his employment, it is no defense that employee was negligent in the use of the explosives. (For other cases, see Master and Servant, Dec. Dig. § 378.) 3. MASTER AND SERVANT WORKMEN'S COMPENSATION -COURSE OF EMPLOYMENT-NEGLIGENCE. Negligence, in itself, does not prevent any act ordinarily incident to employment from being one performed out of and in course of employ ment. (For other cases, see Master and Servant, Dec. Dig. § 371.) 4. MASTER AND SERVANT-WORKMEN'S -WILLFUL MISCONDUCT. COMPENSATION Where blasted stumps constituted cheapest fuel to be secured, and it was customary to obtain fuel in such manner, and mine watchman, who was required to obtain own fuel, had not been instructed not to use explosives, was killed while blasting stumps for fuel, he was not guilty of such recklessness as to amount to willful misconduct. (For other cases, see Master and Servant, Dec. Dig. § 380.) En Banc. Error to District Court, Clear Creek County; Harry S. Class, Judge. Proceedings under the Workmen's Compensation Act by Mary Pallaro and others for compensation for death of Fred Pallaro, opposed by the Broderick Mining & Milling Company, employer, and the Ocean Accident & Guaranty Corporation, Limited, insurance carrier. Award by Industrial Commission to claimants, and employer and insurance carrier brought action to vacate findings and award of commission. Findings and award confirmed, and employer and insurance carrer bring error. Affirmed. *Decision rendered, April 7, 1919. 180 Pac. Rep. 95. |