Western Metal Supply Co. v. Pillsbury , 172 Cal. 407 ( 1916 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is a writ of certiorari to review an award of the Industrial Accident Commission allowing compensation to the widow of James Mason who, the commission found, had been accidentally killed while in the employ of the petitioner, Western Metal Supply Company.

Among other grounds of attack on the award, it is contended that the Industrial Accident Commission is without jurisdiction to allow compensation to dependents where the accident has resulted in the death of can employee. The question thus raised goes to the very foundation of the commission's authority to act at all on applications for death benefits. It is involved in a large number of cases now pending in this court, in addition to the present one. It will not be necessary to repeat our views regarding the constitutionality of the general scheme of compensation embodied in the "Workmen's Compensation, Insurance, and Safety Act" of 1913. We have treated this question at some length in our recent decision in WesternIndemnity Co. v. Pillsbury, 170 Cal. 686, [151 P. 398]. In that case the court was dealing with the claim of the injured employee himself. We had before us no question touching the right of any other person to receive compensation on account of an injury which had resulted in the death of the employee. While in some of the later cases decided here, death claims were in fact involved, the questions now to be considered were not presented, or, if presented, were passed as being unnecessary to the disposition of the cases. Now, however, the authority of the commission to make an award in death cases is directly assailed, and we are called upon to decide whether that authority exists.

The argument on behalf of the petitioner is divided into two branches. It is contended, first, that the legislature has no authority to create a right to compensation in favor of the dependents of an employee who has sustained injuries resulting in his death, and, second, that if this right may be created, the Workmen's Compensation, Insurance, and Safety Act transcends constitutional limitations in attempting to vest in the Industrial Accident Commission the power — asserted to be judicial in its nature — to assess compensation and award it to such dependents.

The solution of the question thus raised depends, in its final analysis, on the construction of section 21 of article XX of the constitution, adopted October 10, 1911. That section reads:

"The legislature may by appropriate legislation create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment, irrespective of the fault of either party. The legislature may provide for the settlement of any disputes arising under the legislation contemplated by this section by arbitration, or by an industrial accident board, by the courts, or by either any or all of these agencies, anything in this constitution to the contrary notwithstanding."

Clearly the second clause of this section, authorizing the legislature to provide for the settlement of disputes by a board or commission, has no broader scope than the first clause, which sanctions the creation of a liability. The disputes which may thus be settled are those "arising under the legislation contemplated by this section." It would not avail, therefore, to say that the legislature has power, independently of this special constitutional authorization, to create a liability on the part of employers in favor of dependents of employees, unless it also has the power, without express constitutional sanction, to vest in the Industrial Accident Commission the power to make awards in such cases. That it has no such power is, we think, entirely beyond question. The power granted to the commission by the act to determine that a right to compensation exists, and to fix by an award the amount of such compensation, is judicial in its nature. In this behalf it would not seem necessary to do more than refer toPacific Coast Casualty Co. v. Pillsbury, 171 Cal. 322, [153 P. 24], where, in speaking of the action of the commission in settling disputes concerning the liability which the legislature had created, we said, "This action by such board would be an exercise of judicial power. For that purpose it is in legal effect a court." The correctness of this view is emphasized, indeed demonstrated, by a brief summary of the provisions of the act defining the duties and powers of the board with respect to claims for compensation. The commission is vested with "full power, authority and jurisdiction to try and finally determine" all proceedings for the recovery of compensation (sec. 73a), subject only to the limited review provided in section 84 of the act. The commission has power to administer oaths, to issue subpoenas (sec. 78), to take testimony (sec. 24a), to punish for contempt "in the same manner and to the same extent as courts of record" (sec. 80). Where compensation is sought the proceedings are in substance those of a court in an action at law. "Application in writing" (i. e., a complaint) is filed with the commission by a party in interest (sec. 22). The time and place for the hearing are fixed by the commission, and a copy of the application, together with notice of the time and place of hearing, is then served on the adverse party (sec. 22). This is, in effect, the issuance and service of summons. The adverse party must within five days file his answer (sec. 23). Here we have the usual framing of issues by the pleadings of the parties. After hearing by the commission, it makes and files its findings of facts and its "award which shall state its determination as to the rights of the parties" (sec. 25). The findings thus made are "conclusive and final" (sec. 84c), and the award itself is not reviewable except by a writ of certiorari under which the review is restricted in scope (sec. 84). Any party in interest may file a certified copy of the findings and award with the clerk of the superior court, and judgment must be entered by the clerk in conformity therewith (sec. 26). The commission itself may stay the execution of any judgment so entered, and may order entry of the satisfaction of the judgment (sec. 26).

The commission, in exercising these powers, is performing precisely the same functions that are performed by any court in passing upon questions brought before it. "Judicial power," says Mr. Justice Miller in his work on the constitution, "is the power of a court to decide and pronounce a judgment and carry it into effect between persons who bring a case before it for decision." (Muskrat v. United States, 219 U.S. 346, [55 L.Ed. 246, 31 Sup. Ct. Rep. 250].) "It is the inherent authority not only to decide but to make binding orders or judgments which constitutes judicial power. . . ." (Underwood v. McDuffee, 15 Mich. 361, [93 Am. Dec. 194], quoted in People v. Hayne, 83 Cal. 111, [17 Am. St. Rep. 217, 7 L. R. A. 348, 23 P. 1]; see, also, Marin Water Power Co. v. RailroadCommission, decided January 17, 1916, 171 Cal. 706, [154 P. 864, 866], where judicial power is defined.) The Industrial Accident Commission is given the power to make binding orders or judgments. In making an award upon which the clerk must enter a judgment, the action of the commission does not differ from that of a judge who directs the entry of judgment by the clerk of the court. The entry of judgment follows automatically upon the filing of the findings and award of the commission. The clerk acts ministerially, and with no other authority than that of the commission itself, as evidenced by the certified copy of its proceedings. No judicial action on the part of the superior court or a judge thereof is required to give to the commission's award the full force and effect of a judgment.

We do not overlook the consideration that administrative boards and officers are often called upon to determine the facts and apply the law to those facts. Such bodies and officers do not exercise judicial functions in the strict sense of that term. (Ex parte Whitley, 144 Cal. 167, [1 Ann. Cas. 13,77 P. 879].) We might cite many cases dealing with the acts of bodies like the interstate commerce commission, boards of medical and dental examiners, and other boards or officers authorized to pass on various questions. These cases generally hold that judicial power is not exercised in the performance of the various functions committed to such boards. But none of these cases had to do with a situation like the present, where the law creates a right in one person against another, and vests a board with the jurisdiction to hear complaints, to issue process, to compel the attendance of witnesses, to determine conclusively the issues raised by the pleadings of contending parties, and to make a final judgment or award determining the rights of those parties. As was said inState v. Hawkins, 44 Ohio St. 98, [5 N.E. 228], one of the cases cited by the respondents, "it may be safely conceded that power to hear and determine rights of property and of persons between private parties is judicial and can only be conferred on the courts."

It is true that in several cases involving compensation statutes, it has been held that the boards or officers authorized to determine the facts upon which the right to compensation arose were exercising executive or administrative rather than judicial powers. (Borgnis v. Falk Co.,147 Wis. 327, [37 L. R. A. (N. S.) 489, 133 N.W. 209]; Mackin v. DetroitT. A. Co. (Mich.), 153 N.W. 49; Kennerson v. Thames Towboat Co. (Conn.), 94 A. 372.) But in none of these cases was the court considering a statute which gave to a commission powers as extensive as those vested by our law in the Industrial Accident Commission. We shall not take the time to review in detail the cases just cited, but content ourselves with saying that we think there is nothing in them which would support the claim that the powers exercised by the Industrial Accident Commission of this state, in making awards of compensation, are not strictly judicial.

In the absence of a special enabling provision of the constitution, judicial power could not be vested in the Industrial Accident Commission. Section 1 of article VI of the constitution provides that "the judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts of appeal, superior courts and such inferior courts as the legislature may establish in any incorporated city or town, township, county, or city and county." It is clear that the Industrial Accident Commission is not one of the courts thus designated. It is equally clear that the grant contained in the section of the constitution just cited, unless modified by other constitutional provisions, is exclusive. "Except for local purposes, the section disposes of the whole judicial power of the state, and vests all of it in the courts expressly named therein, leaving none at the disposal of the legislature." (Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, [153 P. 24].) We are, then, brought back to the inquiry whether section 21 of article XX of the constitution contemplates and authorizes legislation creating a liability to pay compensation to dependents of employees whose death has resulted from injury incurred in the course of their employment. If the legislature is by this constitutional provision authorized to create the liability, it is equally empowered to provide for the adjudication of questions concerning the liability by an Industrial Accident Commission.

The essential language of section 21 is this: The legislature may "create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment." The contention of the petitioner is that this language is not broad enough to cover a compensation to be paid to any one but the injured employee himself. But we are not to give too strict and literal interpretation to a constitutional amendment which aims to enlarge the power of the legislature, or to remove doubts concerning its power to legislate on a given subject. The constitutional amendment, as is perfectly apparent from its terms, was designed to establish the authority of the legislature to pass laws making the relation of employer and employee subject to a system of rights and liabilities different from those prevailing at common law. That system was one which had already been adopted in many jurisdictions. The statutes putting it into force were commonly known as workmen's compensation laws. In every one of those laws, provision was made not only for compensation or indemnity to an employee who survived his injury, but for payment to the heirs or dependents of an employee who had received a fatal injury. (2 Boyd, Workmen's Compensation, sec. 213.) The two kinds of payment have always been regarded as component parts of a single scheme of rights and liabilities arising out of a given relation. (SeeHuyett v. Pennsylvania R. Co., 86 N.J.L. 683, [92 A. 58].) It is true that at common law there was no action for torts causing death. The right of action died with the injured person. Accordingly, it is universally held that statutes like section 377 of the Code of Civil Procedure, giving an action for wrongful act or neglect causing death, create a right entirely distinct from that which was vested in the injured person before his death. But the analogies of the common law cannot be applied too closely to this new scheme, which undertakes to supersede the common law altogether, and to create a different standard of rights and obligations, covering the entire field of injury to workmen in the course of their employment. That the constitutional amendment was designed to authorize the establishment of the new system cannot be doubted. In view of the general trend of legislation on this subject, we think the language of the constitutional amendment was not inapt to describe a scheme of liability which should include the entire field embraced within the prior laws. Compensation means more than a mere cash payment to an individual. Compensation to employees for injuries incurred by them may fairly be said to mean not only a money payment to the employee himself, but provision or indemnification for the various elements of loss which may be the direct result of his injury. It includes, for example, the obligation to provide medical and surgical treatment (sec. 15, subd. a) — an obligation which does not necessarily involve payment in cash to the employee himself. It may equally be said to cover some provision for those who had been entitled to look to the employee for their support, and who by his death are deprived of that support. If the law provided that while an injured workman was disabled, payments should be made to his family during the period of the disability, this would be one form of compensation to the workman. It would hardly be claimed that such a provision was beyond the scope of the constitutional authorization. On similar reasoning it may fairly be said that where a workman is killed, the requirement that a payment shall, for a given period, be made to his dependents for their support is also a provision for compensation to the workman within the meaning of section 21 of article XX.

We have not thought it necessary to discuss at any length the objections to this legislation based upon the provisions of the federal constitution. As we have said, the subject is fully covered, so far as concerns injuries not resulting in death, by the decision in Western Indemnity Co. v. Pillsbury, 170 Cal. 686, [151 P. 398]. We see no distinction between such cases and the allowance of death benefits. The provision for such death benefits, like that for the payment of compensation to injured employees themselves, is a regulation of the conditions surrounding the employment of labor, and is to be justified upon similar grounds. It is argued that under the statute the employer may be required to make payments to alien and nonresident dependents, and that no public purpose cognizable by the legislature of this state is to be served by requiring payments to such aliens and nonresidents. But this argument is based upon altogether too narrow a view of the constitutional limitations upon legislative action. If it may reasonably be thought that the best interests of the state, of the employers of labor and of those employed, as well as of the public generally, are promoted by imposing upon the industry or the public the burden of industrial accident — and some such theory lies at the bottom of all workmen's compensation statutes (Western Indemnity Co. v. Pillsbury, 170 Cal. 686, [151 P. 398]) — the residence and citizenship of the injured workman, or (if he shall have met death) of his dependents, are factors entirely foreign to the discussion. The legislature has determined that the employment of labor in given pursuits entails upon the employer certain responsibilities toward the persons performing the labor and those dependent upon them. There is no constitutional or rational ground for limiting the benefits of this legislative scheme to citizens or residents of this state. If the employment was such as to fall within the state's lawmaking jurisdiction, the legislature certainly had the power to pass laws operating uniformly upon all persons affected by such employment.

In addition to the constitutional questions which we have discussed, the petitioner urges various grounds of objection to the action of the commission.

The facts upon which the award was based are somewhat peculiar. James Mason was employed as a night watchman by the applicant, Western Metal Supply Company, and at the same time by five other corporations. He made regular rounds of the premises of the six employers. For his services he received thirty dollars per month from the applicant. The others for whom he acted as watchman paid him different sums, his aggregate monthly earnings from the six employers being $116. The Western Metal Supply Company knew that he was acting as watchman for other employers, but did not know the number of such other employers nor the identity of all of them. Mason's employment was by separate agreement with each of his employers, and not by any joint agreement or joint employment. In addition to the foregoing facts, the commission found that "the employment of Mason by the defendant was personal in its nature, and was intended by the parties to be a contract of hire of an agreed portion of his personal service; that on the morning of the 9th day of March, 1914, the dead body of said James Mason was found upon the premises of the defendant Western Metal Supply Company, death having been caused by gun shot wounds inflicted by unknown persons engaged at the time of the murder in committing burglary upon the said premises." There were findings, in the language of the statute, of the other jurisdictional facts authorizing an award. The commission awarded to the applicant, the widow of James Mason, compensation amounting to three times Mason's average annual earnings, such average annual earnings being based upon the aggregate amount which he received from his six employers.

The petitioner argues that the facts above recited do not justify the conclusion that Mason was an employee of the petitioner. On the contrary, it is insisted, he was an independent contractor. Section 13 of the act defines the term "employer" as "every person, firm, voluntary association and private corporation . . . who has any person in service under any appointment or contract of hire . . . ." The term "employee" is defined in section 14 as "every person in the service of an employer . . . under any appointment or contract of hire." If it be conceded that the relationship thus described is that of master and servant, as defined in section 2009 of the Civil Code, it must nevertheless be held that the evidence before the commission justified the finding that Mason was a servant of the appellant. "The real test by which to determine whether a person is acting as the servant of another is to ascertain whether, at the time when the injury was inflicted, he was subject to such person's orders and control and was liable to be discharged by him for disobedience of orders or misconduct." (Wood on Master and Servant, sec. 317.) If Mason had been working for the petitioner alone as night watchman, it could hardly be claimed that he was not to be regarded as a servant of such petitioner. He would have been "in the service" of the employer "under a contract of hire," to use the language of the Workmen's Compensation Act, or, if we look to section 2009 of the Civil Code, it might well have been found that he was "employed to render personal service to his employer otherwise than in the pursuit of an independent calling," and in such service remained "entirely under the control and direction" of the employer. The fact that Mason was working at the same time for different employers is not necessarily inconsistent with the relation of master and servant between any one of such employers and himself. (1 Labatt on Master and Servant, 2d ed., sec. 2.) The findings and conclusions of the commission on questions of fact are conclusive. (Sec. 84c.) If a finding has the support of substantial evidence, it is beyond review here. The most that can here be said is that a finding that Mason was an independent contractor might reasonably have been made. But certainly the conclusion to the contrary was one that could have been entertained by a rational mind. It is, therefore, binding upon this application.

It is not disputed that the evidence warranted the inference that the killing of Mason occurred while he was "performing services growing out of and incidental to his employment and acting within the course of his employment as such." (Workmen's Compensation Act, sec. 12a.) It is argued that because the shooting was the willful act of a third person, the killing was not accidental. This contention cannot be sustained. InWestern Indemnity Co. v. Pillsbury, 170 Cal. 686, [151 P. 398], we upheld an award for injuries received by an employee through the willful assault of a fellow-workman. That decision establishes the proposition that an injury may be accidental, even though it be intentionally inflicted by a third person.

As stated above, section 13 of the act includes in the definition of employer every "voluntary association" having any person in service under any appointment or contract of hire. We think there is no force in the claim that the six corporations for which Mason was acting as watchman constituted a "voluntary association." As the commission found, there was no joint agreement between the various employers nor any joint employment by them. Each made a separate agreement with Mason. Clearly these six employers, each acting independently and without concert with the others, cannot be brought within any fair meaning of the term "voluntary association."

Finally, the petitioner claims that the award against it should be based, not upon Mason's total earnings, but upon the amount (i. e., thirty dollars per month) which he received from it. The solution of this question is by no means free from difficulty. At first sight there is much plausibility in the contention that an employer, whose liability is based on the earnings of his employee, should not be compelled to pay an award measured by the earnings received by the employee from others. The statute contains no provision which can be said to point to a clear solution of this problem. Probably the framers of the act did not have in mind the specific case of a workman employed in a given capacity by different employers, to each of whom he rendered services for a portion of his time. It must be remembered, however, that the main purpose of the act is to indemnify the workman for the loss suffered by him. The indemnity takes two forms — the furnishing of medical attention, and payment of a proportion of the earnings lost in consequence of the injury. In case of death, the amount payable is a percentage "of the average annual earnings of the deceased employee." A fair compensation is to be paid to the employee, or to the dependents who have lost in him their source of support. It should be based upon the amount which the employee was in the habit of earning in the particular kind of employment, rather than the amount which he had been receiving from a particular employer. This was the view taken by the supreme judicial court of Massachusetts in dealing with a statute which, in this regard, is not unlike our own. A longshoreman was injured while working for a steamship company. He had been employed part of the time by this company, and had earned, on an average, eight dollars per week from it. His total earnings from all employers averaged thirteen dollars per week. It was held, in Gillen's case (215 Mass. 96, [L. R. A. 1916A, 371, 102 N.E. 346], that the award of compensation was properly based upon the employee's average weekly earnings as longshoreman from all sources. The court said that "the loss of his capacity to earn, as demonstrated by his conduct in such regular employment, is the basis upon which his compensation should be based." This conclusion which, we think, is the correct one, does not conflict with the rules laid down in section 17 of the act for computing the average annual or weekly earnings of an employee. That section in several of its subdivisions clearly contemplates the payment of awards which are not based upon the amount actually received by the employee from the particular employer in whose service he was at the time of the injury. There is undoubtedly an element of hardship in throwing the entire burden upon the applicant. The burden is, however, thrown upon it under the act by reason of the fact that the employee was killed while in its service.

The award is affirmed.