MOUSHEK CHAKMAKJIAN v. LOWE (1948)

Plaintiff first instituted an action for damages against defendant in the Superior Court of Los Angeles County pursuant to the provisions of Labor Code, sections 3706–3709, inclusive. Thereafter, and prior to the trial of said superior court action, plaintiff filed application for adjustment of claim with the Industrial Accident Commission. The superior court action was tried before the court sitting without a jury resulting in a judgment for plaintiff in the sum of $2,250.00 and costs.

Thereafter, the Industrial Accident Commission entered an award in favor of the applicant (plaintiff herein) for $2,890.00, based on a permanent disability rating of 24 3/4% at the maximum rate of $25.00 per week, plus an additional 10% under Labor Code, section 4554, based upon the fact (which was expressly found by the Commission), that defendant had wilfully failed to secure the payment of compensation to her employees. An award was also made for the cost of the medical care and treatment, and plaintiff's counsel was allowed an attorney's fee of $350.00, pursuant to provisions of Labor Code, section 4555. Plaintiff concedes that by reason of a clerical error made by the Industrial Accident Commission in computing the items constituting the award made to him, the same should be reduced by the Commission from $2,890.00 to $2,695.00.

By his complaint in the superior court action, plaintiff alleged that defendant operated a cabinet shop; that she omitted to carry insurance; that on the 10th of November, 1945, plaintiff was employed in said shop; that as a direct and proximate result of the negligence, carelessness and unlawful acts and conduct of the defendant, plaintiff's left hand was drawn into and became engaged with the teeth of a saw; that he sustained lacerations to his left thumb and second, third and fourth fingers, and suffered damages thereby in the amount of $20,000.00; that he was employed at $42.00 per week and his disability would continue for eight weeks and thereby he suffered damage in the sum of $336.00; that he would require medical and surgical care, attention and nursing in the treatment of his injuries, which medical and surgical care was of the reasonable value of $150.00.

By her answer, defendant admitted the ownership of the shop; that plaintiff's hand was cut; but denied the employment or that the accident occurred to the plaintiff while in the performance of his duties, or that there was any negligence upon her part.

The trial court found that plaintiff was in the employ of the defendant as a saw operator and in other capacities in a cabinet shop owned and operated by her. That defendant ‘unlawfully failed and omitted to carry insurance covering her said employees, as required by Article I of Chapter 4 of Part I, division 4 of the Labor Code of the State of California.’ That as the direct and proximate result of the negligence and carelessness of the said defendant, plaintiff's left hand was then and there drawn into and became engaged with the teeth of said saw. That as a result thereof, plaintiff sustained severe injuries to his left thumb and to the second and third fingers of his left hand; that he was thereby seriously injured in his health, strength and activity, and was caused to suffer great physical pain and bodily anguish. Judgment was thereupon entered in favor of plaintiff for the sum of $2,250.00. Defendant appeals.

The contention of appellant that the elements of damage represented by the award of the Industrial Accident Commission are duplicated in and by the judgment rendered in the instant case can not be sustained.

The Industrial Accident Commission award compensated respondent for only 65% of the damages suffered by him because of the permanent impairment of his earning capacity and for the cost of medical attention received by him in the treatment of his injuries. The award does not encompass the elements of damage contained in the judgment, which were based on the findings that respondent was ‘injured in his health, strength and activities,’ and ‘caused to suffer great physical pain and bodily anguish.’ There was, therefore, no duplication of the elements of damage contained in the judgment and the elements of damage represented by the award.

Section 3706 of the Labor Code expressly confers upon an injured employee the right to recover damages in an action at law against an uninsured employer, and also to recover compensation for his injuries in a proceeding before the Industrial Accident Commission. These rights are subject to but a single limitation, and that is contained in section 3709 of the Labor Code, reading as follows: ‘If, as a result of such action for damages, a judgment is obtained against the employer in excess of the compensation awarded under this division, the compensation awarded by the commission, if paid, or security is given for its payment and is approved by the court, shall be credited upon such judgment.’

Where, as in the case at bar, the award of the Industrial Accident Commission exceeded the amount of damages recovered in the action at law, and the elements of damage covered by the award not having been duplicated by, but having been in addition to those covered by the judgment in the action at law, respondent is entitled to enforce the payment of both the award and the judgment. Sullivan v. Tait, 38 Cal.App.2d 185, 187, 101 P.2d 145.

From a reading of the sections 3700, 3710, and 3712 of the Labor Code in the light of section 21, Article XX, of the Constitution of California, we are persuaded that Labor Code sections 3706–3709, inclusive, were manifestly adopted as additional means of enforcing compliance by employers with what the foregoing constitutional provision characterizes as the declared ‘social public policy of this State’. Such compliance was manifestly sought by subjecting non-conforming employers to the payment of the compensation benefits to which the employees would have been entitled had the employers complied with section 3700 of the Labor Code, and in addition thereto, by subjecting such employers to actions at law for the same injuries, subject only to the single limitation contained in section 3709, and depriving such non-complying employers in such actions of their common law defenses. The constitutional and statutory provisions being free from ambiguity and uncertainty, there is no need for interpretation and no room for construction. It is the bounden duty of the courts to follow the provisions of law as they are written, and not to legislate under the guise of interpretation and construction. We are persuaded that the language of section 3709 providing that where in an action at law a judgment in excess of the compensation awarded by the Industrial Accident Commission is obtained, the compensation awarded by the Commission ‘shall be credited upon such judgment’ (emphasis added) never contemplated such ‘credit’ as would extinguish the judgment, but intended, as expressly provided, that such ‘credit’ would be given only when its application would serve to reduce but not extinguish the obligation upon which it is applied.

Appellant next contends that because of the phrase, ‘in addition’ as used in section 3706 of the Labor Code, the employee must first seek compensation from the Industrial Accident Commission, and only thereafter may he proceed with his action at law. Such an interpretation does violence to the clear and unambiguous language of that section. The section in question provides that the ‘employee or his dependents may proceed against such employer by filing an application for compensation with the commission, and, in addition, may bring an action at law against such employer for damages, as if this division did not apply.’ (Emphasis added.) There is no requirement that the one must precede the other. Were such a requirement contemplated, doubtless the section would so declare. To us it is clear that under section 3706, where an employer fails to comply with the requirements of the statute relating to securing payment of compensation for injuries to employees, an injured employee is given two distinct remedies and may pursue either or both. Marshall v. Foote, 81 Cal.App. 98, 100, 101, 252 P. 1075; Graybiel v. Consolidated Ass'ns, Ltd., 16 Cal.App.2d 20, 24, 60 P.2d 164.

Appellant earnestly urges that respondent affirmatively established that there was no negligence on her part, and that the presumption of negligence under section 3708 of the Labor Code was thereby dispelled. The section just referred to provides that in an action such as the one now engaging our attention, ‘* * * it is 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 is upon the employer, to rebut the presumption of negligence. It is not a defense to the employer that the employee was 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 or regulation shall restore to the employer any of the foregoing defenses'.

Taking as does section 3708 from the employer the various specified defenses, and, particularly the defense of contributory negligence, and imposing upon him the burden of rubutting the declared presumption of negligence which the Labor Code provision specifically fastens upon him, there can be little if any doubt, as contended by appellant, that the action at law for damages which is expressly reserved for the injured employee is one that is based on negligence. Section 3708 expressly provides that the presumption of negligence which is declared to exist is a rebuttable presumption. Such a presumption is evidence. 10 Cal.Jur., p. 744. And the rule or principle permitting indulgence in such a presumption is a rule of evidence. People v. Goddard, 47 Cal.App. 730, 734, 191 P. 1012. Appellant argues that ‘there was absolutely no evidence that there was any negligence whatsoever on the part of defendant’, citing Mar Shee v. Maryland Assurance Corporation, 190 Cal. 1, 7, 210 P. 269. Seemingly, appellant's argument urges that the failure of respondent to prove affirmatively that the former was guilty of some act or acts of negligence is equivalent to proof that she was not negligent in any respect, but such an argument ignores the fact that the provisions of section 3708 of the Labor Code give rise to the presumption that appellant was in fact negligent, and that presumption is in itself a species of evidence. The question as to whether the presumption is dispelled by the evidence is a question of fact, upon which the findings of the trial court are conclusive. Fortier v. Hogan, 115 Cal.App. 50, 58, 1 P.2d 23. It cannot be said that the presumption vanishes from the case as a matter of law, when contradicted or controverted by the party against whom it is invoked. A reading of the record herein does not disclose a situation wherein the factual background presented by respondent was so inconsistent with the possibility that the accident could have been caused by the negligence of appellant as to compel the conclusion, as a matter of law, that the employer was not at fault. Such being the case, the question of whether or not the presumption relied upon was controverted was peculiarly a question of fact to be determined by the trial court. None of the cases cited by appellant hold to the contrary.

While it is true, as contended by appellant, that at one stage of the trial, following her direct examination, the court stated, ‘I don't see any need of your cross-examining this witness. * * * How can you possibly escape liability under her testimony?’ nevertheless, the record shows that following argument by appellant's counsel, the court said, ‘I will reverse that ruling in so far as allowing you to put on evidence. Let's see if you have evidence that in any manner will change the testimony of Mrs. Lowe. Do you want to examine her?’ Appellant then offered additional testimony, argued the cause and it was submitted for decision, resulting in a judgment for respondent. We fail to perceive any prejudice to appellant as a result of the foregoing proceedings. As heretofore pointed out, the question of whether appellant dispelled the presumption with which she was burdened was a question of fact. Appellant was permitted to offer all the evidence she desired to rebut the presumption, and we can not say from a consideration of all the evidence that it was so inconsistent with the presumption that it established, as a matter of law, the freedom of the employer from negligence.

For the foregoing reasons, the judgment is affirmed.

WHITE, Justice.

DORAN, Acting P. J., and BARTLETT, J. pro tem., concur.