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RIDEAUX v. TORGRIMSON.†
From a judgment of dismissal entered after the court sustained a demurrer to plaintiff's second amended complaint without leave to amend in an action against the administrator of the estate of decedents to recover damages for personal injuries, plaintiff appeals.
The amended complaint substantially alleged that:
(1) August 5, 1936, defendant was appointed and qualified as the administrator of the estate of John Torgrimson, deceased, and Anna Torgrimson, deceased.
(2) July 3, 1936, plaintiff was employed by decedents.
(3) July 3, 1937, while employed by decedents and while acting within the scope and course of her employment, plaintiff received personal injuries as a result of the negligent and careless operation of an automobile by John Torgrimson.
(4) John Torgrimson and Anna Torgrimson died as a result of injuries received in the accident which caused injury to plaintiff.
(5) Decedents had not at the time of plaintiff's employment or at the time of the accident complied with the provisions, rules, and regulations of the “Workmen's Compensation, Insurance and Safety Act” by securing to plaintiff as their employee compensation under said act.
This is the sole question presented for determination: Is an injured employee entitled to maintain an action for damages against the legal representative of a deceased employer's estate, where the employee sustains injury while acting within the course and scope of the employment, as a result of the deceased employer's negligence, who at the time of the accident and injury to employee failed to secure to said employee the payment of compensation as required by the “Workmen's Compensation, Insurance and Safety Act”?
This question must be answered in the negative. Section 29(b) of the “Workmen's Compensation, Insurance and Safety Act” reads as follows: “Proceedings where payment is unsecured. If any employer shall fail so to secure the payment of compensation, any injured employee or his dependents may proceed against such employer by filing an application for compensation with the commission, and, in addition thereto, such injured employee or his dependents may bring an action at law against such employer for damages, the same as if this act did not apply, and shall be entitled in such action to the right to attach the property of the employer, at any time upon or after the institution of such action, in an amount to be fixed by the court, to secure the payment of any judgment which may ultimately be obtained. Such judgment shall include a reasonable attorney's fee to be fixed by the court. The provisions of the Code of Civil Procedure, except in so far as they may be inconsistent with this act, shall govern the issuance of and proceedings upon such attachment; provided, that if as a result of such action for damages a judgment is obtained against such employer in excess of the compensation awarded under this act, the compensation awarded by the commission, if paid, or if security proved by the court be given for its payment, shall be credited upon such judgment; provided, further, that in such action it shall be presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof shall rest upon the employer, to rebut the presumption of negligence. In such proceeding it shall not be a defense to the employer that the employee may have been guilty of contributory negligence, or assumed the risk of the hazard complained of, or that the injury was caused by the negligence of a fellow servant. No contract, rule or regulation shall be allowed to restore to the employer any of the foregoing defenses.” Vol. 2, Deering's Gen.Laws, p. 2298, Act 4749 (1931).
In the instant case the provisions of the foregoing act were applicable to the situation, because it is conceded that the decedent employers failed to secure to plaintiff the payment of compensation as required by section 29, subsection (a) of the “Workmen's Compensation, Insurance and Safety Act,” supra.
It therefore becomes necessary to determine the rights secured to plaintiff by subsection (b) of section 29 of said act, supra. The act is clear and unequivocal in its terms on this subject. The rule is clearly stated in the act to be as follows:
If any employer fails to secure, as provided in the act, the payment of compensation to an employee, any injured employee or his dependents may, in addition to filing an application for compensation with the Industrial Accident Commission, “bring an action at law against such employer for damages, the same as if this act did not apply.” Section 29, subsec. (b), Workmen's Compensation, Insurance and Safety Act, supra.
It is clear that the act does not give any additional right or rights to the employee over those which he had prior to the adoption of the act, nor does it create any new cause of action in his favor. It simply permits him to pursue the same remedy that he had prior to the enactment of the “Workmen's Compensation, Insurance and Safety Act.” This construction of the foregoing section of the “Workmen's Compensation, Insurance and Safety Act” finds support in the views of our Supreme Court expressed in the case of De La Torre v. Johnson, 200 Cal. 754, at page 759, 254 P. 1105, 1107, where, in construing section 26 of the “Workmen's Compensation, Insurance and Safety Act,” Mr. Justice Seawell says: “Appellant relies strongly upon that portion of section 26 of the act which reads: ‘The death of the employee, or any other person, shall not abate any right of action established by this section.’ The section above cited must be construed in connection with and with reference to the subject–matter of the act and its manifest' object. Its sole and primary object is to fasten a liability on ‘all employers to compensate their employees for any injury incurred by said employees in the course of their employment, irrespective of the fault of either party.’ Article 20, § 21, Const. The compensation provided for in said act is not damages in the sense that the latter term is used in ordinary tort actions. The right to recover damages for personal injury is not a right of action established by the Workmen's Compensation, Insurance and Safety Act, but a common right established long before the adoption of the Workmen's Compensation Act. The clause providing that the ‘death of the employee, or of any other person, shall not abate any right of action established by this section,’ read in the light of the purpose of the act, must be construed to apply to those persons whose right or liability is established by the act. It was the new rights and liabilities created by the Compensation Act which before were nonexistent that were the concern of the lawmakers in framing the act. The rights of the employee, when he steps outside of the Compensation Act and elects to sue a tort–feasor who is not his employer, are not enlarged beyond those given to citizens generally. * * * In addition to the common–law right of action to recover for personal injuries wrongfully inflicted, an employee, as such, is entitled to the protection provided by the act, and, while he has a twofold remedy, his common–law right is not enlarged by the provisions of the Workmen's Compensation Act.”
It is thus necessary to decide whether plaintiff's complaint, as amended, stated a cause of action without reference to the “Workmen's Compensation, Insurance and Safety Act.” The law is settled that a cause of action for personal injuries, in the absence of a statute expressly providing for its survival, abates upon the death of the tort–feasor. De La Torre v. Johnson, 200 Cal. 754, 757, 254 P. 1105; 1 C.J.S., Abatement and Revival, 196, § 143 (1936); I Cal.Jur. 71, § 41 (1921); 1 Cal.Jur. Ten–Year Supp. 10, § 41 (1936). Since the complaint as amended alleged the death prior to the institution of the action of the tort–feasors, it did not under the foregoing rule state a cause of action, as there is no express statutory authority providing for the survival of such a cause of action.
It is apparent that the state Legislature intended that section 29, subdivision (b), supra, receive the construction which we have placed thereon, because adequate protection for the injured employee in a case like the instant one is provided by section 17(d) of the act, which reads as follows:
“(d) Death of employer. The death of an employer subsequent to the sustaining of any injury by an employee shall not impair the right of such employee to proceed before the commission against the estate of such employer, and the failure of such employee or his dependents to cause the claim to be presented to the executor or administrator of the estate shall not in any way bar or suspend such right.” Deering's Gen.Laws, vol. 2, p. 2289, Act 4749, § 17 (1931).
For the foregoing reasons the judgment is affirmed.
McCOMB, Justice.
We concur: CRAIL, P. J.; WOOD, J.
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Docket No: Civ. 11706.
Decided: March 30, 1938
Court: District Court of Appeal, Second District, Division 2, California.
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