FRENCH v. RISHELL

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

FRENCH v. RISHELL et al.*

Civ. 14914.

Decided: August 25, 1952

John W. Collier, City Atty., Oakland, for appellants. Carroll, Davis & Freidenrich, Roland C. Davis, J. D. Burdick, San Francisco, for respondent.

Herbert Wright French, a Captain in the Oakland fire department, died on March 26, 1949 after about 23 years service. His widow applied for a pension on the ground that his death had resulted from injury or disability incurred while in the performance of duty. On its denial she filed in the Superior Court a petition in mandate. A peremptory writ directed the allowance of the pension and the City and its pension board appealed.

The petition in mandate embodied a copy of the findings and award of the Industrial Accident Commission wherein that tribunal had determined that the decedent while employed as Captain in the fire department on and prior to March 26, 1949, ‘sustained injury occurring in the course of and arising out of his employment proximately causing death on March 26, 1949’ and that his widow was totally dependent. It awarded her the death benefit of $6,000 and statutory burial expenses of $300.

The mandate case was presented on a motion for judgment on the pleadings. The court granted a peremptory writ on the ground that the Commission's award was res judicata of the death of decedent arising out of and in the course and scope of his employment. The only problem on this appeal is whether such holding was correct.

The widow's application to the Commission was based on the claim that decedent had ‘sustained injury arising out of and in the course of the employment, as follows: heart attack resulting in death.’

Her application to the pension board (and likewise in mandate) was based on the claim that decedent's death was the result of an injury and disability incurred while in the performance of his duties as a fireman, and was due to an occlusion of the coronary artery, induced, brought on, and caused by exertions, emotional and physical strains, exposures to smoke, heat, water and fumes, suffered by decedent in the performance of his duties as fireman.

Thus the issues before the Commission, the pension board, and the court were identical, and there is no contention to the contrary.

Appellants contend, however, that there is no identity of parties, one of the arguments being that the pension fund trustees were not parties to the proceeding before the Commission. The City as employer was, of course, respondent's adversary before the Commission. The Oakland charter provides (§ 101) that ‘The Mayor, Health Officer, and the President of the Civil Service Board shall hereafter constitute the Board of Trustees of such [pension] fund, and the City Treasurer shall be the custodian of said fund.’ In the petition for mandate the three trustees were joined with the City as respondents. The reason for this is apparent since they were the persons, as trustees created by the charter, to whom any writ would be directed. See Dierkes v. City of Los Angeles, 25 Cal.2d 938, 946, 156 P.2d 741 and Barber v. Mulford, 117 Cal. 356, 358, 49 P. 206. The writ of mandate is ‘issued * * * to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station * * *’. § 1085, Code Civ.Proc. Their duties and functions in pension matters as representatives of the City were not as Mayor, Health Officer, or President of the Civil Service Board, but as trustees of the City's pension fund. Their trusteeships were created by the charter of the City of Oakland and they are merely agents of the municipality and creatures of its charter to perform for the City certain of its functions. Servente v. Murray, 10 Cal.App.2d 355, 361, 52 P.2d 270, followed in Johnson v. Fontana County Fire Protection Dist., 15 Cal.2d 380, 390–91, 101 P.2d 1092. They are, in fact, the only persons by and through whom the City can act in pension matters. Dierkes v. City of Los Angeles, supra. The petition in mandate alleged ‘that the City of Oakland is the real party in respondents' interest herein.’ That this is so is beyond question. Barber v. Mulford, supra; Johnson v. Fontana, supra; Dierkes v. Los Angeles, supra; Servente v. Murray, supra. Appellants moved in the trial court to strike this allegation from the petition, which motion was denied. If the City is not such party, then it is difficult to see who is the real party in interest. This argument is wholly devoid of merit and the motion was properly denied.

The answer of the City to the petition in mandate admitted that it had contested the application before the Commission, the making of its findings and award, and ‘that the time for appeal therefrom has passed and the City of Oakland has not appealed therefrom and is complying with the provisions of said award.’

Williams v. Southern Pacific Co., 54 Cal.App. 571, 202 P. 356 is one of the leading cases in this state on the present subject and it reviews many authorities, Californian and otherwise. There Harry Williams, a brakeman, was killed in the discharge of his duties. His widow, acting on behalf of herself and a daughter, sued in the Superior Court under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., alleging that her husband had been killed while engaged in interstate commerce. She later applied to the Industrial Accident Commission for an adjustment of the death claim under the Workmen's Compensation Act.

The Commission after a hearing made findings and an award determining that at the time of his death Williams was engaged in intra, and not interstate commerce. (A more extended summary of the Williams case will be found in Goodman v. Superior Court, infra, 51 Cal.App.2d 297, at 301–303, 124 P.2d 644.

In the court action the jury impliedly found that decedent had been engaged in interstate commerce and Mrs. Williams was awarded a verdict and judgment for $25,000 for herself and her daughter. This judgment was reversed, the appellate court holding that the Commission's findings and award, which became final before the civil action was tried, were res judicata in the court action, of the question whether decedent was engaged in intra or interstate commerce, and that that question could not be relitigated as far as the widow was concerned. The net result of that holding was to close the door of the state courts to the widow (she having been the claimant before the Commission) since her exclusive remedy, where the employee was engaged in intrastate commerce, was under the Workmen's Compensation Act. The Superior Court was without jurisdiction, and the widow had no case therein. A hearing was denied by the Supreme Court.

The court, at 54 Cal.App. 576–577, 202 P. at page 358 said: ‘A material issue in both proceedings was the character of Williams' employment; if intrastate, the Commission had exclusive jurisdiction to award compensation; if interstate, then the jurisdiction was in the superior court. The Commission determined that the employment was in intrastate commerce, and the fact—‘so determined must, as between the same parties or their privies, be taken as conclusively established so long as the judgment in the first suit remains unmodified. * * *’ Southern Pac. R. Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355, [see, also, Rose's U. S. Notes]; 2 Black on Judgments (2d Ed.) § 506.'

At pages 574–575 of 54 Cal., at page 357 of 202 P., the court said: ‘In Western Metal Supply Co. v. Pillsbury, 172 Cal. [407] 411, 156 P. 491, Ann.Cas.1917E, 390, it is said: ‘Where compensation is sought the proceedings are in substance those of a court in an action at law. * * * We shall not take the time to review in detail the cases just cited, but content ourselves with saying that we think there is nothing in them which would support the claim that the powers exercised by the Industrial Accident Commission of this state in making awards of compensation are not strictly judicial.’ See, also, Carstens v. Pillsbury, 172 Cal. [572], 576, 158 P. 218; Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 391, 153 P. 24; Gouanillou v. Industrial Acc. Comm. [184 Cal. 418], 193 P. 937; Massachusetts, etc., Co. v. Industrial Acc. Comm., 176 Cal. [488], 491, 168 P. 1050. The findings of the Industrial Accident Commission are res adjudicata. In re Hunnewell, 220 Mass. 351, 107 N.E. 934; Centralia Coal Co. v. Industrial Acc. Comm., 297 Ill. 513, 130 N.E. [725], 727.'

The Williams case has been cited approvingly by the Supreme Court in the following cases dealing with various phases of the doctrine of res judicata: In re Estate of Finch, 202 Cal. 612, 620–621, 262 P. 34; Domestic & Foreign Petroleum Co. v. Long, 4 Cal.2d 547, 562, 51 P.2d 73 (where a municipal court judgment was held to be res judicata in the superior court), and Bernhard v. Bank of America, 19 Cal.2d 807, 814, 122 P.2d 892.

It was followed in Merino v. Pacific Coast Borax Co., 124 Cal.App. 336, 340–341, 12 P.2d 458, 460, where the court said: ‘Appellant contends that it is not bound by the award * * *. In order words, the contention is that the findings and award of the Industrial Accident Commission do not constitute a judgment, and the matters in them contained are not res adjudicata as to appellant. Appellant was a party to the proceeding instituted before the commission and directly responsible for the joining of respondent here as a party defendant in the proceeding. * * * That the award duly made by the Industrial Accident Commission, under the circumstances here present, has the force and effect of a judgment, is a well-established rule of law in this jurisdiction. [Citations.]’ A hearing therein was denied.

In Gerini v. Pacific Employers Inc. Co., 27 Cal.App.2d 52, 54, 80 P.2d 499, 501, a proceeding before the Industrial Accident Commission brought by the parents of a decedent resulted in an award in their favor based on a finding that the decedent had been an employee of one Ramazzotti. Thereafter, the parents brought an action in the superior court against the employer and his insurance carrier, claiming that their son was not in fact an employee and that the employer and his insurance carrier, defendants in the action, had conspired to prevent the plaintiffs from bringing a superior court action for the death of their son, and had falsely represented before the commission that the son was an employee of Ramazzotti. The court held that ‘The commission's finding was a final and conclusive determination of the fact of the son's employment’, citing the Williams case, supra. A petition for hearing was denied.

In Goodman v. Superior Court, 51 Cal.App.2d 297, 301, 124 P.2d 644, 646, the question before the Commission was whether the employer was insured. The court said: ‘The law is settled that the Industrial Accident Commission proceeds judicially, and that its determinations, subject to the same limitations applicable to judgments of courts generally, are res judicata in all subsequent proceedings between the same parties or those privy to them.’ After discussing the Williams and Gerini cases, the court concluded: ‘It follows, therefore, that the prior decision of the commission in this proceeding, if such decision is final and not subject to attack on the ground of extrinsic fraud or mistake or other grounds permitted by law, is res judicata in the superior court action between the same parties on the question as to whether Goodman Bros., Inc., was in fact insured at the time the accident occurred.’

In Goodspeed v. Great Western Power Co., 33 Cal.App.2d 245, 265, 91 P.2d 623, 633, 92 P.2d 410, a case involving a decision of the Railroad Commission, a board with judicial powers, it is said that ‘If the judgment of the commission, acting within its jurisdiction, is final, it is final for all purposes and in any character of action or proceeding where the precise matter is again presented for adjudication before any other tribunal, board or commission. So when the parties here went into court they should have proceeded upon the assumption that this issue—the real corporate character of defendant canal company—was no longer open to litigation.’ A hearing was denied by the Supreme Court.

Appellants place their chief reliance on the case of Schmidt v. Pension Board, 63 Cal.App.2d 439, 147 P.2d 90, 91, where the facts were substantially the same as in this case. There the proceeding was before a pension board on the application of a fireman's widow based on the claim that he had died as a result of an ‘injury arising out of or sustained by him while in the discharge of his duties as a member of the Fire Department of the City of Bakersfield’. He, too, died of a coronary occulsion. There, too, the Commission had held that his death had been caused by injury or disability occurring in the course of and arising out of his employment. The Commission's award was considered by the pension board, but it denied the pensions. In the mandate proceeding which followed, the Superior Court refused to admit the award in evidence and denied a peremptory writ. In affirming, the appellate court held that ‘The determination of the Industrial Accident Commission was not res judicata, was not binding on the Pension Board, and did not prevent a contrary determination by it. Drummond v. Drummond, 39 Cal.App.2d 418, 103 P.2d 217.’ The court added: ‘We see no connection between the two proceedings.’

While it is true the Supreme Court denied a hearing therein, the Schmidt case cannot be reconciled with the early pronouncements of the Supreme Court in the group of cases already cited herein (found in Williams v. Southern Pacific Co. at 54 Cal.App. at page 575, 202 P. 356, supra) nor with the Williams, Merino, Gerini, Goodman and Goodspeed cases already discussed. The court does not cite any of those authorities, and it is to be assumed that they were not called to its attention. On the res judicata point it cites only Drummond v. Drummond, where the decisive factor was the absence of privity. There was no privity problem in the Schmidt case, and there is none here. The Schmidt case is the only California case cited by appellants which is contra to the California authorities cited earlier herein.

Appellants rely also on McGrath v. Young, 98 Cal.App.2d 415, 220 P.2d 609, 610, but a cursory reading thereof shows that it is not in point since therein there was no adjudication by the first trinbunal. That case, like this, went first before the Industrial Accident Commission, then before the Oakland pension board, and then before the Superior Court in a mandate proceeding. Our opinion points out that while there was a hearing before the Commission, ‘no determination was made’ and the insurance carrier then ‘entered into a compromise settlement with the widow under which she was paid $3,150 and the proceedings terminated.’ We said: ‘That such settlement was not res judicata and was not binding on the pension board would seem obvious.’ Our quotation from Schmidt v. Pension Board was not necessary to the decision.

One of appellants' contentions is that the Commission's award was not res judicata in the mandate proceeding because respondent's burden of proof before the Commission was measurably lighter than her burden before the pension board. The basis for this argument is the language of § 3212 of the Labor Code as it read at the time of the death* . It provided that in the case of a fireman ‘the term ‘injury’ includes * * * heart trouble which develops or manifests itself during a period while such member is in actual service* in such department or unit. * * * Such * * * heart trouble * * * so developing or manifesting itself in such cases shall be presumed to arise out of and in the course of the employment unless there is evidence to the contrary.'

Respondent's burden before the pension board and in the mandate proceeding may fairly be said to be defined by § 104(1) of the Oakland charter, which provides that the pension trustees ‘shall * * * provide for the family of a member of the Department who may die as a result of an injury or disability incurred while in the performance of his duty * * *.’ No presumption such as that found in § 3212 could aid the claimant before the pension board. Before the Commission respondent had to prove by competent, expert evidence, William Simpson Construction Co. v. Industrial Acc. Comm., 74 Cal.App. 239, 243, 240 P. 58, that her husband's heart trouble had developed or manifested itself while he was a member of the fire department, whereupon it would be presumed that the disability arose ‘out of and in the course of the employment.’ It would then be incumbent on the City, respondent's adversary before the Commission, to produce evidence to the contrary.

It may be conceded that § 3212 made it less difficult for respondent to make out a prima facie case before the Commission than before the pension board or in mandate, but it is also true that all the rules of evidence are, and ever since the early days of the Commission have been, decidedly less stringent and exacting before the Commission than in a civil court. See §§ 5708, 5709, Labor Code; 27 Cal.Jur. pp. 478–481, §§ 148, 149. Despite that fact, in none of the cases cited earlier (Williams, Merino, Gerini, Goodman, Goodspeed) have these procedural differences been held to change the res judicata rule, and appellants have cited no authority holding that such differences modify it in any respect.

We agree with respondent's argument that ‘If, as appellants suggest, a difference in rules of evidence, presumptions, etc., were sufficient to suspend the operation of the doctrine, every plea of res judicata based on a foreign judgment would require proof of identity of law between the jurisdiction rendering the first verdict and that of the jurisdiction in which it is offered as conclusive evidence of the facts adjudged.’

In Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, at pages 410–413, 156 P. 491, supra, the court summarizes the powers of the Commission and shows how they roughly parallel those of a court of justice. Following that case the court in Gouanillou v. Industrial Acc. Comm., 184 Cal. 418, 420–421, 193 P. 937, 938, supra. said: ‘Since the Industrial Accident Commission is a judicial body exercising judicial functions, its decisions and awards are subject to those general legal principles which circumscribe and regulate the judgments of all judicial tribunals [citations]’. Until the Supreme Court modifies that rule all other courts in this state are bound to follow it. Accordingly we must hold that in the mandate proceeding the Commission's award was as truly an adjudication of rights as any final judgment of a court of record, and that the court was correct in following the majority rule as announced in the Williams, Merino, Gerini, Goodman and Goodspeed cases, supra.

The Oakland charter was amended in 1941 to provide, inter alia, that if the widow of any deceased member of the fire department should receive any death award under the Labor Code ‘arising out of the performance of duty of such member’, such payment should be ‘applied as a credit and set-off against any payment on account of * * * pension or other benefit payable under this article’. The peremptory writ contains a direction that this should be done in this case.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  On October 1, 1949 § 3212 was amended. This was between the date of death (March 26, 1949) and the award (January 31, 1950). The section was changed inter alia to read: ‘Such * * * heart trouble * * * so developing or manifesting itself in such cases shall be presumted to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the commission is bound to find in accordance with it.’The amendment also changed ‘actual service’ to ‘the service’. (Emphasis added.)

GOODELL, Justice.

NOURSE, P. J., and JONES, J. pro tem., concur.