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District Court of Appeal, First District, Division 1, California.


Civ. 11373

Decided: January 31, 1941

Philander B. Beadle and Carl W. Wynkoop, both of San Francisco, for appellant. Hoge, Pelton & Gunther, of San Francisco (A. Dal. Thomson, of San Francisco, of counsel), for respondent.

This is an appeal by plaintiff, an employee of defendant company, from a judgment in favor of the latter entered upon a directed verdict. The trial court held that an accident which resulted in personal injuries to plaintiff was within the exclusive jurisdiction of the industrial accident commission.

At the time of the injury, plaintiff was employed as a janitor on one of the steamships owned and operated by defendant company, this ship being at that time moored at pier 32, which, together with the adjacent pier 30, had been assigned to defendant company by the state board of harbor commissioners in consideration of the payment of rent. The portion assigned did not include premises beyond the boundary of the pier or wharf, that is, beyond the interior enclosed by doors, which separate those premises from outside territory. The pier entrances face on a strip of pavement approximately 60 feet in width known as the bulkhead. When the piers or wharves are congested, this bulkhead is commonly used to facilitate the handling of incoming and outgoing cargoes. It is likewise used by trucks, drays, cabs and private vehicles of persons having business with the defendant company in approaching and leaving the piers. Stevedores, seamen, passengers and visitors are permitted to park on the bulkhead, which is also used by pedestrians. Adjoining the bulkhead to the west, and running parallel thereto, is the main thoroughfare or public street called the Embarcadero, which is about 200 feet in width and which takes care of the ordinary everyday commerce of the community. On the Embarcadero, also, are tracks for the operation of trains. Separating the bulkhead from the Embarcadero is a low curb except at spaces about 36 feet in width provided as entrances to the piers, at which places the Embarcadero and the bulkhead are practically on a level. It is by crossing the bulkhead at these points that access from the Embarcadero to the various piers is gained. A large number of special officers are employed by defendant company on the piers, part of their duties being to direct and control traffic on the bulkhead, keep the entrances to the piers free from interference, and generally to see that the movement of vehicles in this area proceeds smoothly. On occasions there is a double line of such unbroken traffic along the bulkhead for a half mile.

On the morning of the accident there does not seem to have been any great congestion of vehicular traffic. However, the bulkhead was crowded with stevedores on their way to work. Plaintiff arrived at the waterfront at about 7:45 A.M. in a taxicab. His time for commencing work was 8 A.M. The taxicab came to a stop on the bulkhead almost immediately in front of the entrance to pier 32, and plaintiff started to alight. He had one foot outside the taxicab when a car owned by defendant company, and being operated by another of its employees in the course and scope of his employment, backed into the taxicab, and plaintiff's foot was caught between the door of the cab and the door sill, and injured.

It was stipulated that defendant company had qualified as a self-insurer of its employees under the terms of the workmen's compensation and safety act. The question involved, raised in the answer of defendant company, is whether the injury may be said to have occurred on the premises of the employer, thus bringing it within the class of injuries compensable exclusively under such act, or whether plaintiff has a cause of action in a civil suit against the employer. Subject only to exceptions not pertinent to the present appeal, the industrial accident commission has exclusive jurisdiction to determine the compensation benefits to employees injured in the course of their employment. The findings of the commission are, however, reviewable by the courts. Labor Code, § 3600, St.1937, p. 269; Alaska Packers' Ass'n v. Industrial Acc. Comm., 200 Cal. 579, 253 P. 926; Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 P. 398; San Francisco S. Co. v. Pillsbury, 170 Cal. 321, 149 P. 586; Fitzpatrick v. Fidelity & Casualty Co., 7 Cal.2d 230, 60 P.2d 276; Scott v. Industrial Acc. Comm., 9 Cal.2d 315, 70 P.2d 940; Benguet Con. M. Co. v. Industrial Acc. Comm., 36 Cal.App.2d 158, 97 P.2d 267; McLain v. Llewellyn Iron Works, 56 Cal.App. 58, 204 P. 869; Burton v. Union Oil Co., 129 Cal.App. 438, 19 P.2d 9

This question of jurisdiction, the test of which is found in the nature of the action and the relief sought (Silverman v. Greenberg, 12 Cal.2d 252, 83 P.2d 293), is a matter that must be passed upon by the court. It has been suggested that in this case, depending as it does upon factual matters and not entirely upon allegations in the pleadings, the question of fact should have been submitted to the jury, and upon its finding thereon the court should have ruled accordingly.

The defense of lack of jurisdiction may not be determined by a jury; it is purely a legal matter. To submit to a jury facts tending to prove or disprove jurisdiction, would inevitably lead to a lack of uniformity of remedy. However, in this case there is no dispute as to the facts. In such case the question of jurisdiction is one of law for the sole determination of the court. In Re Application of Tassey, 81 Cal.App. 287, 290, 291, 253 P. 948, 949, the court said: “There is some confusion in discussing jurisdiction on account of the fact that there are cases in which the jurisdiction of the court depends upon the existence of certain facts. In that case the court has jurisdiction to determine those facts, even though the determination of those facts in a certain manner ousts it of further jurisdiction to proceed in the case.” In Gill v. Sovereign Camp, W.O.W., 209 Mo.App. 63, 236 S.W. 1073, 1076, it was said: “It was proper for the court to refuse defendant's instruction No. 4, because it is for the court, and not the jury, to determine the question of jurisdiction.” In Murphy v. Campbell Soup Co., D.C., 44 F.2d 214, 215, the court said: “Whether the necessary jurisdictional facts exist is a question which certainly ought to be triable by the court; and this is the practice in analogous matters. In the federal courts jurisdiction often depends on a particular state of facts being shown. * Such questions are uniformly determined by the court.” Tomson v. Iowa State Traveling Men's Ass'n, 88 Neb. 399, 129 N.W. 529; State v. Coleman, 58 R.I. 6, 190 A. 791, 109 A.L.R. 787; Estate of Paulsen, 179 Cal. 528, 178 P. 143.

In Dolese Bros. v. Tollett, 162 Okl. 158, 19 P.2d 570, appellant contended that the jurisdiction of the action was in the state industrial commission and not with the trial court. At page 571 of 19 P.2d the court said: “A trial court is required to determine the legal question of whether or not it has jurisdiction of the subject-matter of an action presented to it for determination. * It is neither authorized nor required to submit to a jury the question of whether or not it has jurisdiction of the subject-matter of an action.” The suggestion that the jury should have been permitted to pass upon the undisputed facts or to draw inferences therefrom—which would in effect have been a determination of the jurisdiction of the court—is untenable. When jurisdiction of a subject-matter depends upon a fact, it is the duty of the court to determine that fact upon the evidence pro or con.

We will now consider whether appellant was injured as the result of an accident arising out of and in the course of his employment by defendant company. Attention has been called to two outstanding California cases, Ocean Accident, etc., Co. v. Industrial Acc. Comm., 173 Cal. 313, 159 P. 1041, L.R.A.1917B, 336 and Judson Mfg. Co. v. Industrial Acc. Comm., 181 Cal. 300, 184 P. 1.

In the Ocean Accident Company case, the deceased employee was an engineer on a fishing tug. During a storm the tug had been moved from its usual docking position and placed temporarily alongside a schooner. In turn, the schooner lay next to a steamer moored to the dock. To go ashore from the tug it was necessary to pass over both vessels. The employee adopted this means of going ashore, and the accident occurred at about four o'clock in the morning while he was attempting to return to the tug by the same route. While he was on shore, however, the tug had been moved to its usual berth, of which fact the employee was unaware. He had already crossed the steamer and the schooner when he discovered that the tug had been moved, and, in retracing his steps in order to return to the wharf, he fell between the schooner and the steamer and was drowned. The commission's award of death benefits was reversed.

In the Judson case an employee proceeding from his home to a factory by way of a path crossing a railroad right of way, which path constituted the sole means of ingress and egress to his place of employment, was struck and killed by an engine. The accident occurred within a reasonable time of his commencing work; that is, about five minutes before the employee was to start his regular shift; he was approaching by the usual path leading directly to the only entrance used by employees. An award by the commission was affirmed.

The employee in the Ocean Accident Company case was overdue in reporting for work. He did not investigate whether the tug was moored at its proper berth, but sought to reach it, where he evidently thought it was, by crossing the vessel and the schooner. In the parlance of the sea, he was “off his course”. It was upon his return trip to the wharf after he had learned of the removal of the tug from the side of the schooner, that the employee fell between the vessels and was drowned. The court commented upon the fact that the employee knew the location of the tug's regular berth, and that, without special instructions, it was his duty to report there at the usual time.

The holding in the Ocean Accident Company case is in effect that until an employee is about to use an instrumentality specifically connected with his place of work, an accident befalling him does not arise out of and in the course of his employment. The fall between the schooner and the vessel was not directly related to the means of approach to the tug, such as a gangplank or ladder connecting the wharf with the vessel, nor was it a path or entrance constituting the only means of access to his place of employment. It was held that the employee must proceed “to use some instrumentality provided, by means of which he immediately places himself in a position to perform his tasks”. [[[[[173 Cal. 313, 159 P. 1044, L.R.A.1917B, 336.] The decision uses this language: “* going to or returning from his work, and it matters not in this respect whether his journey takes him over public roads or private ways.”

In the Judson case, decided three years later, referring to the Ocean Accident Company case, the court at page 303 of 181 Cal., at page 2 of 184 P. said: “In the case last cited we find a statement to the effect that all those accidental injuries which occur while the employee is going to or returning from his work are excluded from the benefits of the act. This sweeping dictum was not necessary to the decision of the case. The accident there considered occurred, it is true, while the deceased was attempting to reach his place of employment; but the mode of ingress which he undertook to use was not one provided and required by his employer, it was in no sense a part of the premises where his work was to be performed, and, finally, it was not in fact a mode of ingress to his work at all.” The court also said: “The right to compensation is by no means restricted to those cases where the injury occurs while the employee is actually presently manipulating the tools of his calling. It would be unnecessary to the decision of this case to attempt to formulate a precise and comprehensive definition of the term ‘service,’ as used in the statute now under consideration. It seems to us, however, that when an employe has arrived at the premises of his employer, and is thereon for the purpose of immediately commencing his actual work, he is performing service incidental to his employment. The facts stated above show that as between the employer and his employes the path across the Southern Pacific Company's right of way was in fact a part of the employer's plant, and that at the time of his death Gallia was there solely in the line of his duty as an employe. It would be a harsh and indefensible rule that would withhold compensation from an employe engaged in traversing a dangerous pathway in his employer's building on his way to his own particular place of work therein, on the ground that he had not yet entered upon the real work of his employment. We can perceive no difference in principle between such a case and the case at bar.” In the matter of the entrance to the place of employment, and in the time of arrival for duty, the facts of the Judson case are similar to those of the instant case.

In the Judson case, as in the instant one, the employee was outside the actual area of his place of work. In both, the employee was within reasonable distance of its actual and only place of ingress and egress. The only difference between the facts of that case and this is that in the former, the approach by the employee was along a so-called private path, while in the present, it was across or over a public way, which at various times was predominantly used by the defendant company, and during such times was under the supervision of the company's private police. We use the term “private police” in accordance with the evidence, which shows that a special agent of defendant company commanded and directed “fourteen special officers” “on * and outside of the piers” in the “regulation of traffic”.

On the morning of the accident, automobiles were parked on the bulkhead to the north and south of the entrance to piers 30 and 32, and vehicles of persons having business on the wharf, as well as stevedores and other employees of defendant company, were in or near the driveway and upon the bulkhead awaiting admittance to the pier at 8 o'clock. The special agent stood at the entrance watching traffic on and off the wharf. He did not see the accident, but was at the scene thereof about ten seconds afterward and observed the position of the two automobiles. He at once took charge of the injured plaintiff directed his removal to the wharf to be put under the care of one of the defendant company's doctors, and investigated generally the circumstances of the accident.

Unless the duties of employment require in their performance the use of a public road by an employee, an injury received by him thereon may not be said to have occurred in the course of or arising out of his employment. In coming to work, this rule applies, but it is not so harsh as to prohibit benefits to an employee who finds it necessary to cross public property used by the public but in fact “dominant as to user in the employer, servient to its purposes, and intimately associated with its plant as a part of its necessary establishment”. Judson Mfg. Co. v. Industrial Acc. Comm., supra. It is true that the language just noted is taken from a case wherein the road was private; the property of a third party. What difference could there be between such a private road, and a public road over which an employer exercised dominion at the time of the accident? As an employee of defendant company, plaintiff herein had business on the driveway or runway. He was there to report for work through the only entrance provided for employees at that hour. The presence of vehicles and pedestrians near the entrance was a danger and a hazard created by defendant company. It was the rule of the company that ordinary delivery trucks and employees should await the hour of 8 o'clock before entering the wharf. It is true that the accident occurred before actual working hours, but it was necessary that appellant should await that hour. Whether he was standing on the bulkhead or seated in an automobile, or, as in this case, was partly within and partly without a taxicab, makes no difference in so far as the creation of the hazard by the defendant company is concerned.

[6, 7] In Jimeson v. Industrial Acc. Comm., 23 Cal.App.2d 634, 638, 639, 73 P.2d 1238, 1240, the court said: “* the rule is well settled that an employee, in going to work comes under the protection of the act when he enters the employer's premises or upon the means provided for access thereto, though the premises and such means of access are not wholly under the employer's control or management.” This and similar cases must be decided upon the peculiar facts of each case. It is sufficient if a substantial causal connection be established between the employment and the injury to the employee, though it need not be the sole or proximate cause. Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532. The test in this case is whether appellant, through the hazard created by defendant , was injured as any ordinary member of the public, or whether his injury was due to his employment by defendant company. If the latter, the Workmen's Compensation Act, St.1917, p. 831, is applicable. The facts of this case answer the question. Appellant's appearance on the bulkhead was due solely to his employment; he was obliged to be there. The time of his arrival would not necessarily indicate that his purpose was to loiter, or that he was there for pleasure. The injury was caused by a risk arising from the condition of the entrance to the place of his employment. In the Cudahy case, supra, 263 U.S. at page 424, 44 S.Ct. at page 154, 68 L.Ed. 366, 30 A.L.R. 532, the court said: “The fact that the accident happens upon a public road or at a railroad crossing and that the danger is one to which the general public is likewise exposed is not conclusive against the existence of such causal relationship, if the danger be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree” The injury herein was not received as the result of an ordinary street risk of an employee on the way to work. The cause of the injury emanated immediately from the hazard of plaintiff's employment and not from some independent danger caused by a third party. Lumbermen's M.C. Co. v. Industrial Acc. Comm., 134 Cal.App. 131, 25 P.2d 22.

State ex rel. v. Clearwater Timber Co., 47 Idaho 295, 274 P. 802, 66 A.L.R. 1396, relied upon by appellant, is not in point. In that case the employer had no control over the means of travel, or of the public crossing whereon an employee was killed. The affirmance of the judgment in this case will not cause a conflict with the holding in McGrew v. Industrial Acc. Comm., 18 I.A.C. 137. In the McGrew case, the applicant for compensation slipped on a wet and slippery sidewalk in front of a public school. Applicant's employer had assumed some control over the sidewalk, but it was in the form of a prohibition against vending, smoking and advertising, which had nothing to do with the accident. In addition, the slippery sidewalk was not a hazard created by the employer. Neither will the case of Moore v. Sefton Mfg. Corporation, 82 Ind.App. 89, 144 N.E. 476, relative to an employee's injury during the noon hour on his way to a restaurant, be in conflict. The opinion in that case, page 477 of 144 N.E., sets forth the well recognized rule in the following language: “This is not a case where the employe was injured in going to or returning from his work upon the employer's premises, or on the only way available for that purpose, or where he was injured during an interval of leisure which occurred in the course of his employment.” In Balboa A.P. Co. v. Industrial Acc. Comm., 35 Cal.App. 793, 171 P. 108, the employee was loitering on a street and assumed a risk common to all passing the crossing.

If a portion of a public thoroughfare adjoining an employer's premises is necessarily used by an employee in reaching his work, and this portion is rendered hazardous by the carrying on of the business of the employer—here a traffic congestion on the bulkhead adjoining the defendant company's place of business caused by the arrival and congregation of numerous persons, passenger vehicles and merchandise trucks awaiting admittance to the piers—an injury suffered by the employee through that hazard may be properly characterized as one received within the zone of his employment, and arising out of and in the course of such employment. Industrial Commission of Ohio v. Barber, 117 Ohio St. 373, 159 N.E. 363; Cudahy Packing Co. v. Parramore, supra; De Constantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88, L.R.A.1916A, 329; Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507, 66 A.L.R. 1402; Starr Piano Co. v. Industrial Acc. Comm., 181 Cal. 433, 184 P. 860; Pacific Elec. Ry. Co. v. Industrial Acc. Comm., 137 Cal.App. 245, 30 P.2d 444; Black v. Herman, 297 Pa. 230, 146 A. 550; LeBlanc v. The Ohio Oil Co., 7 La.App. 721; Globe Indemnity Co. v. Industrial Acc. Comm., 208 Cal. 715, 284 P. 661.

In this case the testimony is sufficient to warrant the directed verdict and the judgment entered.

The judgment is affirmed.

WARD, Justice.

We concur: PETERS, P.J.; KNIGHT, J.