CITY OF LONG BEACH v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, Second District, Division 2, California.

CITY OF LONG BEACH v. INDUSTRIAL ACCIDENT COMMISSION et al.a1

Civ. 10026.

Decided: December 31, 1934

Geo. W. Trammell, Jr., and Edmund J. Callaway, both of Long Beach, for petitioner. Everett A. Corten, of San Francisco, for respondent Commission.

Respondent Verlin K. Agal, employee of a private detective agency in Long Beach, observing two men acting peculiarly in a parked automobile and suspecting them of being “up to something,” called his employer on the telephone, reporting what he had observed, and was told by his employer to call the police and to assist them if he could do so. As he returned, he saw the two men go into a nearby building. He hailed a uniformed police officer, and told him what he had seen. This officer told him to “keep an eye on that car,” and called the police station on the telephone. In a short time a police sergeant in plain clothes arrived, who directed the uniformed officer to get out of sight and told Agal to stay there and “watch for these fellows and maybe we can shake them down.” By this latter expression the sergeant said he meant to stop the men to question them and see if they had any guns on them. Presently the two men came out of the building, and Agal pointed them out to the sergeant. One of the men started towards the auto, but, on the approach of the sergeant, he fled, pursued by the latter. The other man started down the walk and Agal followed. After proceeding some ten or fifteen feet, Agal passed the man, who then turned and started back towards the automobile. Agal thereupon grasped him from behind on the coat sleeve, jerked him around, and said, “I would like to check on you, buddy.” The man jerked his arm loose and made motions as though to draw a gun, when Agal, who had no weapon, hit him a glancing blow on the head and arm with his “sap.” At the same instant the man fired his gun three times, wounding Agal, and then fled.

On this state of facts respondent commission concluded that Agal was an employee of the city of Long Beach and had sustained injury arising out of and in the course of said employment, and that both he and the city of Long Beach were subject to the provisions of the Workmen's Compensation, Insurance and Safety Act (St. 1917, p. 831, as amended), making the award which is here for review.

In all municipal affairs the city of Long Beach is subject only to the provisions of its charter and the Constitution. Voorhees v. Morse (Cal. Sup.) 34 P.(2d) 153. The creation and organization of the police department of that city was a municipal affair, and the charter provisions prevail over the general law. 21 Cal. Jur. 389, 390. Section 159 of its charter provides that “no person shall act as special policeman, detective or other special officer for any purpose whatever except on written authority of the city manager,” who is the executive head of that department. By section 160 of the charter the powers conferred by law on sheriffs in this state are given to the chief of police of the city in suppressing riots, public tumult, disturbance of the public peace, or organized resistance against the laws or public authority.

Under the facts here, with these charter provisions in view, there is no basis whatever for finding that Agal was an employee of the city at the time of his injury. He had other private but similar employment at the time. By reason of his own affairs as employee of a detective agency, he became suspicious of these men. His employer had told him to help the police if he could. Accordingly, he voluntarily and courageously co-operated with the police.

The term “employer” is defined by section 7 of the act (St. 1917, p. 835, § 7, as amended by St. 1929, p. 306) to include any city which has any person in service under any appointment or contract of hire, express or implied, oral or written. The term “employee” is defined in section 8 thereof (St. 1917, p. 835, § 8, as amended by St. 1931, p. 2068) to include, among others, the persons described as under hire in section 7, and all appointed public officers. While the act should be liberally construed to fully embrace its beneficent purposes (see St. 1917, p. 877, § 69), in the face of the charter provisions and the definitions of the act itself above quoted, and the undisputed facts herein, no governmental agency has the legal right to extend its provisions so as to cover this case.

The award is annulled.

STEPHENS, Presiding Justice.

I concur: CRAIL, J.