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

Virgil B. DAVIS and Jack Harrison, Plaintiffs and Appellants, v. DRILLING & EXPLORATION COMPANY, Inc., Defendant and Respondent.

Civ. 24097.

Decided: March 24, 1960

M. S. Bernard, Santa Ana, for appellants. Musick, Peeler & Garrett, Jesse R. O'Malley, Los Angeles, for respondent.

Each plaintiff has appealed from a summary judgment rendered upon defendant's motion dismissing his (plaintiff's) action. The motions were made on the theory that in each instance the plaintiff was seeking to recover for injuries received in Brazil under conditions that made the Industrial Accident Commission the sole arbiter of plaintiff's claim. We are persuaded that neither summary judgment should have been ordered, nor should either appeal be dismissed because it has become moot now that the Industrial Accident Commission has acted.

It may be helpful if we put our finger at once on that which we have found to be the weak point in the premises of defendant's case, as presented. Admitting that the Industrial Accident Commission would have exclusive jurisdiction to award relief to either plaintiff for an injury over which it had jurisdiction (with some exceptions not involved), the conclusion that the superior court could not award the plaintiffs damages in this case touching the illness referred to in plaintiffs' pleadings, would be true only if that illness were an injury of which the Industrial Accident Commission had jurisdiction. But the facts to bring the illnesses, referred to in plaintiffs' complaints, under the jurisdiction of the Industrial Accident Commission, are not to be found in support of the motions for summary judgment. Those facts are more nearly shown in support of the motions to dismiss these appeals, but still fail to be sufficient. It may well be that plaintiffs' success on this appeal will prove a fruitless victory, as it will be if, in fact, the injury for which each was given an award by the Commission proves to be the illness aggravated by the absence of adequate medical care of which each plaintiff complains. But this outcome of the case remains only a possibility; the facts that will bring it about have not been made to appear.

We recognize that ‘The purpose to be served by the summary judgment procedure is to expedite litigation by avoiding useless trials. * * * it permits the court to pierce the allegations of the pleadings to ascertain whether a genuine cause of action in fact exists * * *.’ Barry v. Rodgers, 1956, 141 Cal.App.2d 340, 342, 296 P.2d 898, 900. But, as had been repeatedly said (see West's California Digest, Judgments 178) the procedure is ‘drastic’ and as stated in Eagle Oil & Ref. Co. v. Prentice, 1942, 19 Cal.2d 553, 556, 122 P.2d 264, 265, ‘* * * the affidavits of the moving party * * * should be strictly construed * * *.’ Again in Family Service Agency of Santa Barbara v. Ames, 1958, 166 Cal.App.2d 344, 348, 333 P.2d 142, 144, we read: ‘* * * if any doubt exists whether summary judgment be granted, it should be resolved against the moving party (Whaley v. Fowler, 152 Cal.App.2d 379, 381, 313 P.2d 97; Travelers Indemnity Co. v. McIntosh, 112 Cal.App.2d 177, 182, 245 P.2d 1065).’ Moreover, as pointed out in U. S. Fidelity & Guar. Co. v. Sullivan, 1949, 93 Cal.App.2d 559, 561, 209 P.2d 429, 430, 431: ‘The purpose of a motion for a summary judgment is not to test the sufficiency of the pleadings.’ This statement was made in a case where the plaintiff had sought and obtained a summary judgment, but the same rule applies where the motion is by defendant. This ‘drastic remedy’ was not fashioned to give a substitute for a demurrer but only to furnish a means of discovering whether or not there is an actual controversy of fact. Such a controversy may exist even where the complaint would be vulnerable to a demurrer.

In this action, commenced by the filing of a complaint in which both plaintiffs joined, we now have separate pleadings on behalf of each. The amended complaint of plaintiff Davis first engages our attention. It is drafted in three counts. In the first, two causes of action are stated; one would pass a general demurrer, the other, which we shall consider late in this opinion, would not. In the first of these two causes of action it is alleged that the plaintiff and the one defendant whose name was known had entered into a written contract by which plaintiff was employed to work as an oil well driller in Brazil. The exact terms of the contract plaintiff does not know, as he allegedly had no copy, but he states that it provided that medical facilities would be provided at the job location and adequate medical care would be available. Plaintiff started work in Brazil, and on June 19, 1957, ‘while so employed’ he became extremely ill, delirious, in need of immediate medical attention, but none was provided for a ten day period.

So far as we are made aware, the defendant did not demur to the amended complaint, or to any of its counts, but answered, admitting that it and the plaintiff Davis had entered into a contract (a copy being incorporated in the answer), and that the plaintiff became ill in June, but denying the other allegations. As a separate, affirmative defense, the answer denied the jurisdiction of the trial court, asserted that the Industrial Accident Commission had exclusive jurisdiction, and added that in February of 1938 the plaintiff had initiated a proceeding before this commission ‘for an alleged disability sustained by plaintiff arising out of the contract of employment,’ which proceeding was still pending when the answer was filed, September 10, 1958.

On November 28, 1958, the defendant filed a notice of motion for a judgment on the pleadings or in the alternative for summary judgment. The latter motion, for a summary judgment, was to be based upon (1) the deposition of the plaintiff, (2) the affidavit of E. R. Caldwell, (3) the notice of hearing of the application for adjustment of claim filed by plaintiff before the Industrial Accident Commission; and upon Points and Authorities and the files and records.

No ruling appears to have been made on the motion for judgment on the pleadings, but the motion for summary judgment was granted, January 12th, and such a judgment was entered January 27th. Plaintiff filed a notice of appeal on January 21st, then another on February 9th, each ‘from the judgment of the court heretofore made and entered granting defendant's motion for summary judgment.’ We are interpreting the first notice as one from the nonappealable order (Martelli v. Pollock, 1958, 162 Cal.App.2d 655, 661, 328 P.2d 795, 799) of January 12th; the second as one from the judgment entered January 27th, dismissing the entire action as to defendant Drilling & Exploration Company, Inc.

The judgment recites that the court considered ‘the affidavits, deposition,’ etc. The only affidavit filed in support of the summary judgment was one by E. R. Caldwell, who was, during the period involved, the assistant secretary of the defendant. He alleged that he was the E. R. Caldwell ‘whose name appears on the contract of employment between plaintiff and defendant, which is Exhibit A hereto.’ Exhibit A appears to be a communication addressed to Virgil B. Davis, Los Angeles, California, containing the terms of what would become a written contract between the plaintiff and the defendant, if executed by them. Not only does the affidavit relied upon, in this ‘drastic proceeding,’ fail to reveal that the affiant had any authority to affix his name to the writing on behalf of the defendant, but nowhere does he allege that he did affix it. Nor is there a word to the effect that the writing was ever sent to the plaintiff, or received by him, or that he put his name to it. True, Caldwell's name appears on the writing, and so does the name of Virgil B. Davis, but that is all that can be said; they appear there.

With respect to the deposition, not even that much appears. We have in our hands a carbon copy of some 38 pages of typewriting. On the cover there is the filing stamp of the county clerk, indicating that the document was filed the same day the defendant filed its notice of motion for a summary judgment. Typed on the cover appears ‘Deposition of Virgil B. Davis.’ The words ‘Copy’ and ‘No Copy’ also appear. Inside the cover there is that which might have become the deposition of the plaintiff, but it bears neither his signature, nor his typewritten name, where his signature would be expected, nor the signature or name of any notary or other person authorized to administer oaths, nor the signature nor typewritten name of the person that did the typing. We are not called upon to decide the proposition urged by the respondent-defendant, that a deposition has the same standing as an affidavit, and so, under section 437c, Code of Civil Procedure, may be used in support of a motion for summary judgment. The ‘deposition’ has the same standing as any other unexecuted, unsworn to, piece of paper; none. It is not a deposition. Voorheis v. Hawthorne-Michaels Co., 1957, 151 Cal.App.2d 688, 692–693, 312 P.2d 51, 54.

The defendant offered another basis for its motion: ‘the notice of hearing of the application for adjustment of claim filed by plaintiff before the Industrial Accident Commission of the State of California, Claim No. 58 ANA 47, on November 5, 1958 * * *.’ Overlooking the fact that there is no showing that this notice of hearing was ever before the trial court, even if it had been, it afforded no support for defendant's motion. One can read it from top to bottom, and add the certificate that it is a full and correct copy of the notice that it purports to be, and find not a word to support defendant's motion for a summary judgment. It would indicate that the plaintiff had made an application to the Industrial Accident Commission, but that fact of itself is of no consequence.

So it is that we conclude that defendant's motion for a summary judgment appears, so far, to be utterly lacking in support; plaintiff's cause of action based upon the breach of defendant's promise to provide medical service is not shown to be without merit. This leaves the question: Did the defendant establish his special defense, that the trial court had no jurisdiction because the sole jurisdiction was given to the Industrial Accident Commission?

Obviously, defendant takes in too much territory when it states in its opening brief: ‘B. The Industrial Accident Commission Has Exclusive Jurisdiction Over a Claim for Compensation of an Employee Who While Residing in California, enters Into a Contract for Work to Be Performed Outside of the State and Was Injured Outside of the State.’ To test this statement let us suppose that the plaintiff, employed by the defendant as he was in this case, while in Brazil, went hunting, away from the drilling site with the manager of the defendant on their day off. Due to the negligence of the manager, plaintiff was shot in the leg, incapacitating him for further work. He was discharged, two weeks' wages remaining unpaid. It is obvious that the plaintiff should not seek an award from the Industrial Accident Commission for the compensation due him as wages, nor to compensate him for the injury that he received while hunting. Defendant's extravagant statement is true, but only when the word ‘compensation’ is used in the restricted sense in which it is employed in section 3207, of the Labor Code: “Compensation' means compensation under Division IV and includes every benefit or payment ocnferred by Division IV upon an injured employee * * *.' Supplementing section 3207, we find further in Division IV these provisions in section 3600: ‘Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person * * * shall * * * exist against an employer for any injury sustained by his employees arising out of and in the course of the employment * * * in those cases where the following conditions of compensation concur: * * *

‘(b) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment.

‘(c) Where the injury is proximately caused by the employment, either with or without negligence.’

The defendant argues at though the illness that afflicted the plaintiff in Brazil gave rise to the compensation authorized by Division IV of the Labor Code. In so doing it begs a crucial question. The allegation of plaintiff's amended complaint that ‘while so employed’ he became ill, does not supply the two conditions of section 3600 that we have seen must concur to entitle plaintiff to the compensation there provided. His illness may well have been caused by water that he drank while on a vacation from his work. He may have contracted smallpox while visiting another job. Had the defendant supported his motion with an affidavit that tied plaintiff's illness to his job, he would have made it incumbent upon the plaintiff, in order to defeat the motion, to show that there was a question, at least, as to the proximate cause of the injury, or as to some other phase of the conditions that, if they concur, do give the Industrial Accident Commission exclusive jurisdiction. Labor Code § 3601. But defendant failed to make a showing that plaintiff's injury was compensable.

The diffences between plaintiff Davis' case and that of plaintiff Harrison are few and not significant. The latter had filed a second amended complaint before he was met by the same motion for a judgment on the pleadings or, in the alternative, for summary judgment. The motion was based, not only on Points and Authorities and the files and records, not to be taken seriously as affording support, but also: on the ‘deposition’ of plaintiff Harrison, of no more substance than that relied upon in the Davis case; on another affidavit of E. R. Caldwell, no more helpful to defendant's cause than the one already reviewed; and, in addition, this time, upon findings and an award by the Industrial Accident Commission. We turned to these findings and award with interest; perhaps they would reveal that defendant has some basis for his motion; that the illness of which plaintiff Harrison complained, in his second amended complaint, did arise out of his employment. There is, however, no such revelation. According to plaintiff's second amended complaint, it was on June 19, 1957, that he became extremely ill, an illness that required, but did not have any medical attention. According to the findings and award the plaintiff ‘while employed on June 30, 1957, as an oil driller, at Brazil * * * sustained an injury arising out of and occurring in the course of his employment to his left eye and entire body.’ To say the least, there is a doubt that the injury to the left eye and entire body, occurring June 30th, was the extreme illness, accompanied by delirium, that befell the plaintiff on June 19th and, as we have seen, doubts are to be resolved against the moving party.

The fatal weakness, to which we have alluded, appears again as we consider a variant of the proposition that the Industrial Accident Commission has exclusive jurisdiction to compensate plaintiffs for the loss suffered by their illnesses. Defendant's argument that the awards made to the plaintiffs constitute adjudications of their claims, so that they may not again be adjudicated in this action, rests, necessarily, on the proposition that the illnesses were the injuries for which compensation was awarded. If they were, plaintiffs may not succeed in this action because of lack of medical aid. But, as we have striven to make clear, the defendant has failed to show that they were, and in order to have a basis for its arguments of exclusive jurisdiction, res judicata and estoppel adjudication, it must show that the illnesses of this action were the injuries of the awards. It is not enough that the two occurred about the same time, in the same country.

We have, in the preceding paragraph, considered defendant's arguments on the basis made as though each plaintiff had been awarded compensation. Up to the granting of the motions for summary judgment that had appeared to be the case only as to plaintiff Harrison. In support of defendant's motions to dismiss the appeals, however, it now appears that an award was made to each plaintiff: to plaintiff Harrison on May 19, 1958; to plaintiff Davis on May 21, 1959. We have already noted the finding accompanying the Harrison award. That serving as the basis for the award to plaintiff Davis is that he ‘while employed as an oil driller on June 18, 1957 * * * sustained an injury arising out of and occurring in the course of his employment, consisting of toxoplasmosis.’

The finding in neither award identifies the injury which was its basis as the illness of which the plaintiff complains, certainly not sufficiently to justify us in saying that plaintiff's action has been decided and so his appeal should be dismissed because its questions have become moot. The affidavits in support of the motions add nothing that changes our conclusion. The nearest that they come to it is by the references to the depositions of the plaintiffs ‘on file herein’ in which they (plaintiffs) are said to have said that the illnesses which are ‘the subject of the instant suit’ occurred near the times when the injuries were found to have occurred that were the reasons for the award. The illnesses may have been the injuries, but they and the injuries may have had nothing in common except that they occurred in the same country about the same time. Neither plaintiff, it appears, complained to defendant's assistant secretary except about the illness (injury) that was before the Industrial Accident Commission. This proves nothing. Plaintiffs had no reason to complain to him long after the event, if the illness was not under the jurisdiction of the Industrial Accident Commission.

So far, we have done as the parties have done throughout their arguments, ignored the existence of the second cause of action, pleaded by each plaintiff, along with his first cause of action. But we now call attention to that second cause of action, for, even though it may be insufficiently stated to pass a general demurrer, it is sufficiently stated to defeat a motion for a summary judgment.

Each plaintiff seeks judgment for $18,000 lost in wages and benefits as the result of an unjustified discharge. The discharge is alleged to have taken place while the plaintiff was in the hospital in Brazil, and that ‘on August 4, 1957 pay and benefits under said written contract were terminated * * *.’ The terms of the contracts (allegedly not in plaintiffs' possession) were not set forth that would give us the termination dates, but from the copies attached by the defendant to its answers it appears that each plaintiff was to be paid $475 per month until his return to the United States and then he was to receive a bonus of $100 for each month he was overseas. While these provisions do not appear in plaintiffs' pleadings, they are made to appear by the defendant, and there is nothing to indicate that the plaintiff has not a cause of action in some sum for wages and a bonus. Caldwell does allege that each plaintiff was compensated for all services rendered ‘up to the date of the termination of his employment.’ How he knows it, he does not state, nor is the averment sufficient. No one would argue, surely, that the Industrial Accident Commission had jurisdiction of these causes of action. The motions for summary judgments should not have been granted.

The appeals from the order of January 12, 1959, granting the motions, are dismissed. The motions to dismiss the remaining appeals are denied. The summary judgments, entered January 27, 1959, are reversed with directions to the trial court to vacate the orders of January 12, 1959, granting the motions for summary judgments.

BISHOP, Justice pro tem.

VALLEÉ, Acting P. J., and FORD, J., concur.

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