TRAVELERS INSURANCE COMPANY v. WORKMEN COMPENSATION APPEALS BOARD (1967)

The award of temporary and permanent disability benefits can be affirmed only if the contract of employment was made in California.

Applicant Coakley, a resident of California, was a recently graduated geologist. H2 went to Denver, Colorado, sought the aid of Columbine Business Service, an employment agency, and agreed to pay it half his first month's salary for any employment secured through it. Columbine sent him to Core Laboratory, Inc., in Denver, for interview. No position was then available, but applicant filled out and left with Core an employment application. Core's manager told him ‘we would let him know if any employment did turn up.’ Applicant told Columbine he was going back to California, but that Columbine ‘had his address and phone number should anything develop.’ Some days later the Core manager called Columbine and said that there was an opening at $450 per month. Columbine telephoned from Denver to applicant in California and transmitted this information. He wanted a later reporting date than had been fixed by Core. Columbine telephoned Core, and was told that employment would be available only if applicant reported to Core at Casper, Wyoming by October 5. Columbine telephoned this information to applicant, who said he'd comply. Columbine then so advised Core. Applicant went to the Core office in Casper at his own expense, took a physical examination, and executed an employment agreement with Core. On January 6, while working for Core near Price, Utah, he sustained a back injury. Medical treatment and temporary disability payments were made by Core under Utah compensation statutes.

In June 1956, this application for temporary and permanent disability was filed in California, which authorized a larger award than does Utah. The referee found that the telephone calls between Columbine in Denver and applicant in California constituted a contract by Core, made in California, to employ him as a ‘core analysis technician;’ that this contract was rescinded in Wyoming when Coakley executed a written contract to work as a ‘mud logger’ at the same salary; and that the written contract gave California no jurisdiction of the Utah injury. Dismissal of the application was entered. On petition for reconsideration, the referee made a like recommendation, but the board granted reconsideration, and held further hearing. Viewing Columbine as Core's ‘employing agent,’ the board held the oral agreement of employment to have been made in California, where applicant was when he expressed to Columbine, by telephone, his decision to accept the employment. It also held that the written contract did not extinguish this oral agreement, and that California thus had jurisdiction.

If the contract of employment were in fact made in California, jurisdiction will be vested in the California board even though the injury occurred in another state (Lab. Code, § 5305). When an offer is made and accepted by telephone, the contract is deemed made at the place from which the acceptance was spoken by the acceptor (Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 74 P. 855, 65 L.R.A. 90; Wilson v. Scannavino, 159 Cal.App.2d 369, 324 P.2d 350; see Marchese Bros. v. A. Lyon & Sons, 123 Cal.App.2d 193, 266 P.2d 556). But when the acceptor delivers his acceptance to his own agent, the contract is complete only when that acceptance is transmitted by the agent to the offeror. (Ivey v. Kern County Land Co., 115 Cal. 196, 46 P. 926; Rest., Conflicts, §§ 326, 328.)

If Columbine were the agent of applicant his telephoned acceptance of the employment offer did not effect an agreement until it was transmitted by Columbine to Core in Denver, and the contract was thus made there. But if Columbine were Core's agent to extend the offer and receive the acceptance, the contract was made in California, the place from which applicant spoke.

The crucial issue is whether there is evidence to sustain the board's conclusion that Columbine was the ‘employing agent’ of Core. We find no such evidence. It was applicant who, in Denver, sought out Columbine and executed an agreement to pay it for finding employment for him. Core had no agreement with Columbine, but dealt with that agency only as an agent nominated by applicant to seek employment for him. Neither Columbine nor applicant considered the employment agency to have any authority to accept or reject, for Core, the reporting date sought by applicant. Rather, Columbine conveyed applicant's request to Core, and its rejection to applicant. Nor did Coakley's later acquiescence to the date so fixed, also communicated to Columbine by telephone from California, constitute an agreement binding upon Core. It also was to be, and was, transmitted by applicant's agent to Core. We note, too, that applicant, upon his arrival at Casper, accepted a position which substantially varied in duties, although not in salary, from that which he felt had been transmitted to him by Columbine. There is no suggestion that Core would be liable to applicant if it had withdrawn its offer before Columbine's communication to it of applicant's acceptance.

The board's reliance upon a recent decision (Reynolds Elec. & Engineering Co., Inc. v. Workmen's Comp. App. Bd., 65 A.C. 467, 55 Cal.Rptr. 248, 421 P.2d 96) is misplaced. There the California union was ‘the agent of Reynolds for the purpose of transmitting offers of employment to its members' (p. 472, 55 Cal.Rptr. p. 251, 421 P.2d p. 99) and receiving acceptances thereof. That agency was established by the collective bargaining agreement between Reynolds and the union, which authorized the union to dispatch men to meet requests of Reynolds, and obligated the company to pay such men travel costs, subsistence and wages enroute to the jobsite. No such authority in Columbine is remotely suggested here.

For the reasons advanced in Reynolds, we do not accept the view that the written agreement executed at Casper controls. But we find no basis for the board's conclusion that Columbine was the ‘employing agent’ of Core. It follows that the oral agreement of hire was made in Colorado. Since the industrial accident occurred in Utah, California has no jurisdiction and applicant must be content with his remedies under Utah law.

Award annulled.

DRAPER, Presiding Justice.

SALSMAN and HAROLD C. BROWN, JJ., concur.