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District Court of Appeal, Second District, Division 3, California.

Arthur Paul SCOTT, a minor, by his Guardian ad litem, Henry R. Scott, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, Respondent.

Civ. 20953.

Decided: May 16, 1955

Hindman & Davis, Los Angeles, for petitioner. Everett A. Corten, San Francisco, Daniel C. Murphy, for respondent. Dryden, Harrington, Horgan & Swartz, Los Angeles, for amicus curiae in support of respondent.

The petition of Arthur Paul Scott, a minor, by his guardian ad litem, seeks a writ restraining the Industrial Accident Commission from taking any further proceedings in the matter of the application for adjustment of claim of the petitioner herein heretofore filed with said commission by Pacific Coast Borax Co. and State Compensation Insurance Fund. The commission has filed its answer and an amicus curiae brief has been filed on behalf of the Borax Co. opposing the granting of a writ.

The petitioner alleges that on August 15, 1952, he was an invitee on the premises of the Borax Consolidated, Limited, doing business as Pacific Coast Borax Co., Division of Borax Consolidated Limited, at Death Valley Junction, Inyo County, California, and that while on said premises he was seriously and permanently injured through the negligence of the company; he filed an action against the company December 23, 1953, for the recovery of damages; the defendant answered. The cause was set for trial February 1, 1955; September 16, 1954, defendant with leave of court filed its amended answer alleging as a fifth affirmative defense that exclusive jurisdiction with respect to liability for plaintiff's injuries rested in the Industrial Accident Commission; on November 19, pursuant to motion, the court struck from the amended answer the above affirmative defense; November 23, 1954, the company and State Compensation Insurance Fund filed with the commission an application for adjustment of plaintiff's claim; petitioner has filed no application with the commission; the commission mailed notice of hearing of the application to be held December 23 and caused a subpoena to be served upon petitioner; the referee before whom the matter was pending declined to accede to petitioner's request for a stay of proceedings; January 7 certain evidence was taken by the referee and the matter of further hearing continued to March 8, 1955; January 24, the Borax Co. moved the court to stay proceedings until the matter pending before the commission was finally determined, which motion was denied; at the time set for trial February 1, 1955, the court denied a similar motion for continuance; the cause was tried and after the evidence was closed defendant moved for a directed verdict on the ground that the evidence showed as a matter of law that plaintiff was injured in the course of his employment by defendant and that the commission had exclusive jurisdiction; the motion was denied; the cause was submitted to the jury and the jury failed to reach a verdict; retrial is set for June 14, 1955; thereafter the company moved for a directed verdict in its favor upon the ground it had previously urged; the motion was denied; February 18 petitioner moved the Industrial Accident Commission for an abatement or stay of proceedings pending judgment in the superior court action, which motion was denied. The matter is still pending before the commission but further action has been restrained by our alternative writ until the further order of this court.

Obviously the sole question is whether jurisdiction to determine the factual and legal issues with respect to the liability of the company should be allowed to remain with the superior court to the exclusion of further exercise of its jurisdiction by the commission. We have concluded that the exercise of jurisdiction of the superior court should not be interfered with and that proceedings before the commission should be stayed.

The answer of the commission states: ‘We do not dispute that the Superior Court has jurisdiction to hear the matter before it, but we assert that the Industrial Accident Commission also has jurisdiction.’ The commission further says: ‘The Industrial Accident Commission has a constitutional and statutory duty to determine disputes arising out of the Workmen's Compensation Law expeditiously and without encumbrance of any character.’ It is the position of the company, and it appears to be the position of the commission that although the superior court has properly assumed and exercised jurisdiction it may be robbed of its jurisdiction to proceed further by the institution of a proceeding before the Industrial Accident Commission, the question whether petitioner was an employee of the company or its invitee being the same in the action and the proceeding. It is conceded that the question was in issue under the pleadings in the action and that the superior court was competent to decide it.

Where separate tribunals have concurrent jurisdiction and either may grant the relief to which a litigant is entitled the question whether one shall give way to the other is one of court policy and administration. Ordinarily the conflict arises when it is sought to bring about deferment of proceedings in an action later instituted in order that the tribunal first exercising jurisdiction may alone proceed to a determination of the controversy. Of such a situation we said in Simmons v. Superior Court, 96 Cal.App.2d 119, 124, 214 P.2d 844, 849, 19 A.L.R.2d 288: ‘The rule which forbids a later action in the same state between the same parties involving the same subject matter rests upon principles of wisdom and justice, to prevent vexation, oppression and harassment, to prevent unnecessary litigation, to prevent a multiplicity of suits,—in short, to prevent two actions between the same parties involving the same subject matter from proceeding independently of each other. We think there is no distinction in reason or difference in principle between a case where a later action between the same parties involving the same subject matter is commenced in the same state and a case where a later action between the same parties involving the same subject matter is commenced in another state. If proceedings should be stayed in the first case mentioned, it is in order to avoid a multiplicity of suits and prevent vexatious litigation, conflicting judgments, confusion and unseemly controversy between litigants and courts.’ And we said, as applicable to the Simmons case: ‘The fruits of the recognition of the rule of comity ‘have been so beneficent, when applied to courts of concurrent jurisdiction created by different sovereignties, as to justify the conclusion that it is not only a rule of comity, but one of necessity.’ Phelps v. Mutual Reserve Fund Life Ass'n, 6 Cir., 112 F. 453, 465 [50 C.C.A. 339], 61 L.R.A. 717, * * *. It is settled California law that the pendency of a prior action in a court of competent jurisdiction, predicated on the same cause of action and between the same parties, constitutes good ground for abatement of a later action within the same jurisdiction either in the same court or in another court having the jurisdiction, 1 Cal.Jur. 23, sec. 4; and it is held that the first court to assume and exercise jurisdiction in a particular case acquires exclusive jurisdiction and prohibition lies to restrain another court from proceeding if it is threatening to do so. Browne v. Superior Court, 16 Cal.2d 593, 597, 107 P.2d 1, 131 A.L.R. 276; Myers v. Superior Court, 75 Cal.App.2d 925, 930, 172 P.2d 84; Rilcoff v. Superior Court, 50 Cal.App.2d 503, 123 P.2d 540; Wright v. Superior Court, 43 Cal.App.2d 181, 183, 110 P.2d 529.' 96 Cal.App.2d at pages 122–123, 214 P.2d at page 849.

Respondent rests its opposition upon the decision in Giacalone v. Industrial Acc. Comm., 120 Cal.App.2d 727, 262 P.2d 79, 87, contending that it is decisive of the present question. We are in full agreement with the holding in that case and with the reasoning of the opinion but we do not read it as one which supports the position of the respondent. It may not be doubted that the mere filing of an action in the superior court does not furnish a sufficient reason for staying pending proceedings before the Industrial Accident Commission involving the same controversy. Such were the facts of the Giacalone case. However, passages from the opinion and quotations from cited cases relating to the question of res judicata may not be applied to the present case as respondent seeks to apply them. The court did not hold that each tribunal must be allowed to proceed to a final adjudication without interference, even though a direct conflict may result. Such a holding would have been in conflict with the settled rule we have quoted from the Simmons case. Upon the contrary it was said in Giacalone v. Industrial Acc. Comm., supra: “Wherever a court or board is authorized to act upon the existence of a certain state of facts, it has jurisdiction to determine the existence or non-existence of the requisite facts.' Palermo Land & Water Co. v. Railroad Comm., 173 Cal. 380, 385, 160 P. 228, 230. Necessarily, then, when, as here, two tribunals have mutually exclusive jurisdiction, neither can be compelled to defer determination of that jurisdiction until the other has acted. But once the other has acted by actually determining and exercising its jurisdiction, that jurisdiction becomes exclusive. As the superior court has not exercised its jurisdiction and the commission has concurrent jurisdiction of the subject matter, the proceeding before it cannot be abated as a matter of right.'

Here the superior court accepted and exercised jurisdiction. It struck from the amended answer the special defense which challenged the jurisdiction of the court upon the ground that the commission had exclusive jurisdiction. The court proceeded to a trial of the issues and proposes to go to retrial in the continued exercise of its jurisdiction, as it has a right to do. It has refused to defer action pending determination of the controversy. The situation which faces the litigants is that the two proceedings will proceed simultaneously with the prospect that the decisions of the principal issue may be in direct conflict. It is the manifest purpose of the company to press the proceeding before the commission to finality before a judgment rendered in the action can reach that stage. If this purpose should be accomplished the order of the commission would prevail over the judgment and the entire court proceedings would have been in vain. It is possible that in a similar situation a judgment of a court might for the same reason defeat an order of the commission. ‘Races between parties likely to result in unseemly controversy between courts of different states should be frowned upon and avoided if possible.’ Simmons v. Superior Court, supra, 96 Cal.App.2d at page 130, 214 P.2d at page 852. The duty rests upon the courts to intervene for the correction of this absurd situation. Proceedings in one tribunal or the other should be stayed and the solution which has been adopted as the most logical and practical is the recognition of the tribunal which first accepts and exercises jurisdiction as the only one which should be allowed to proceed. In the present situation that tribunal is the superior court which acted in the exercise of its jurisdiction by proceeding in a normal manner toward a trial of the action and by striking out the special defense which sought abatement of the action. This was before the commission had taken any action upon the application of the company and the state fund.

It is the contention of the commission that as between any order it may make and any judgment that may be rendered in the action, the one that first becomes final will prevail over the other and that nothing short of a final judgment should be permitted to interfere with its pending proceeding. If this position is sustainable in view of the fact that no judgment has been rendered in the action, either party against whom a judgment might be rendered could invoke the jurisdiction of the commission at any time before the judgment became final in the hope of securing a final order of the commission which would nullify the judgment. This should not be permitted.

There is another consideration which we believe supports the contention of the petitioner and which we shall mention briefly. Petitioner has a constitutional as well as a statutory right to a jury trial of the principal issue whether he was an employee of the company, engaged in the performance of his duties as such, or merely an invitee upon the premises of the company at the time he suffered the alleged injuries. The question before us is one of policy of the courts. We do not question for a moment that in matters of policy the courts should prefer a course which preserves the right of a litigant to a jury trial. We do not base our decision on that ground but we do say that, other conditions permitting, preservation of the right should be regarded as a controlling factor.

It is clear that the rule which applies as between courts of the same state or different states having concurrent jurisdiction, where in either court the litigants would be afforded the same rights, should also be applied as between a court and the commission lest the right to jury trial be denied. Although the commission has exclusive jurisdiction where the necessary conditions of employment exist the legislature has not given it exclusive jurisdiction to determine whether they do exist, and in that respect has not limited the right to trial by jury.

Let a writ of mandamus issue.

SHINN, Presiding Justice.

PARKER WOOD and VALLÉE, JJ., concur.