Opinion
Rehearing Denied Dec. 30, 1964.
For Opinion on Hearing, see 45 Cal.Rptr. 144, 403 P.2d 400.
Howell, Elson & Grogan, Edward R. Grogan, Berkeley, for appellant.
Douglas B. McDonald, by James E. Donahue, Sacramento, for respondent.
SALSMAN, Justice.
Appellant Saala filed suit against respondend McFarland to recover damages for personal injuries. The trial court granted summary judgment in respondent's favor.
Appellant and respondent are coemployees of the Beckman Instruments Company. The company maintains a parking lot for the use of its employees. The parking lot is immediately adjacent to the plant where both appellant and respondent are employed. After work on the day mentioned in appellant's complaint, respondent went directly to her car which she had parked on the company parking lot. While in the process of backing her car from its parking space, respondent allegedly struck appellant, who had just finished her shift and was preparing to leave the parking lot for her home. Appellant has received workmen's compensation benefits, and it is conceded that she sustained an injury arising out of and in the course of her employment. (Section 3600.) She contends, however, that in addition to her right to compensation benefits, she may also maintain this action for damages for personal injuries against her coemployee. The availability of this remedy, as claimed by appellant, is the sole issue presented on appeal.
All section references are to the Labor Code.
Respondent's motion for summary judgment was supported by an adequate declaration stating the facts within her own knowledge, and was sufficient to show that any injury sustained by appellant was not the result of any wilful or reckless act on the part of respondent and that she was not intoxicated. Appellant filed no declaration or affidavit in opposition to the motion.
To determine if appellant may maintain this action against her coemployee upon the stated facts it is necessary to review pertinent provisions of the Workmen's Compensation Act. The basic coverage of the act is found in section 3600. That section provides in part: 'Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as provided in section 3706, shall, without regard to negligence, exist against an employer for any injury sustained by his employees arising out of and in the course of the employment * * *.'
Prior to 1959, section 3601 provided in part: 'Where the conditions of compensation exist, the right to recover such compensation * * * is * * * the exclusive remedy against the employer for the injury or death.' Section 3852 provides in part: 'The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, or who pays, or becomes obligated to pay salary in lieu of compensation, may likewise make a claim or bring an action against such third person.' (See Witt v. Jackson, 57 Cal.2d 57, 69, 17 Cal.Rptr. 369, 366 P.2d 641.)
Section 3202 requires that the compensation statute shall be liberally construed. The purposes of the statute have been achieved, in part at least, through an expansive definition of the phrase 'arising out of and in the course of the employment' found in section 3600. With reference to the facts of the case we now consider, it has been held that injuries sustained by an employee while going to or from his place of work upon premises owned or controlled by his employer are compensable. (Smith v. Industrial Acc. Comm., 18 Cal.2d 843, 118 P.2d 6; Starr Piano Co. v. Industrial Acc. In Singleton v. Bonnesen, 131 Cal.App.2d 327, 280 P.2d 481, it was held that a coemployee fell within the statutory category of 'any person other than the employer' (Section 3852) and that an action would lie by the employee's heirs for wrongful death caused by the negligence of a coemployee. After the decision in Singleton, the Legislature in 1959 amended section 3601 to read in part: '(a) Where the conditions of compensation exist, the right to recover such compensation * * * is * * * the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment, except that an employee, or his dependents in the event of his death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against such other employee, as if this division did not apply, in the following cases: (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of such other employee. (2) When the injury or death is proximately caused by the intoxication of such other employee. (3) When the injury or death is proximately caused by an act of such other employee which evinces a reckless disregard for the safety of the employee injured, and a calculated and conscious willingness to permit injury or death to such employee.' (Emphasis added.)
It will be noted that in amending section 3601 the Legislature made the injured employee's right to recover compensation the exclusive remedy against a coemployee 'acting within the scope of his employment.' This case turns upon the construction to be given this language. Appellant's principal contention is that the phrase 'scope of employment' must be distinguished from the phrase 'arising out of and in the course of the employment'; that the 1959 amendment to section 3601 must be strictly construed and confined to its narrowest interpretation, which is that immunity from suit is conferred upon a coemployee only when the coemployee is acting within the scope of his employment in the strict respondeat superior sense of that phrase.
We do not think the Legislature intended the result which appellant so strongly urges. In opinions dealing with workmen's compensation cases it has been common for the courts to use the phrase 'course of employment' interchangeably with the phrase 'scope of employment'. There has been no clear indication in the cases that the two phrases should be understood to have separate meanings. (See Adams v. American President Lines, 23 Cal.2d 681, 146 P.2d 1; San Francisco, etc., Ry. Co. v. Industrial Acc. Comm., 201 Cal. 597, 258 P. 86; Fred Gledhill Chevrolet v. Industrial Acc. Comm., 62 A.C. 45, 46, 41 Cal.Rptr. 170, 391 P.2d 586; Shell Oil Co. v. Industrial Acc. Comm., 199 Cal.App.2d 426, 18 Cal.Rptr. 540; Singleton v. Bonnesen, supra, 131 Cal.App.2d 327, 280 P.2d 481; Auto Lite, etc., Corp. v. Ind. Acc. Comm., 77 Cal.App.2d 629, 176 P.2d 62; see also 2 Witkin, Summary of California Law, Workmen's Compensation, § 57, pp. 1700-02.) Appellant argues, however, that where different words or phrases are used in connection with the same subject in different parts of a statute it will be presumed that the Legislature intended different meanings. (See McCarthy v. Board of Fire Comrs., 37 Cal.App. 495, 174 P. 402; People v. Campbell, 110 Cal.App.Supp. 783, 291 P. 161.) Hence it is urged, when the Legislature used the phrase 'in the course of employment' in section 3600 and the phrase 'acting within the scope of his employment' in the 1959 amendment to section 3601 a different meaning was intended. It is also a rule of statutory construction, however, County of Placer v. Aetna Cas., etc., Co.,
County of Alameda v. Kuchel,After the legislative revision of section 3601 in 1959, it was generally considered that an injured employee's right to sue a negligent coemployee for an industrial injury had been abolished, unless the coemployee's conduct fell within one of the exceptions mentioned in the revised statute. Thus in Van Meter v. Reed, 207 Cal.App.2d 866, 24 Cal.Rptr. 688, the court held that after the 1959 amendment to section 3601 an injured employee could not sue a coemployee for negligence but could state a cause of action against the registered owner of the automobile driven by the negligent co-employee on the basis of imputed negligence. Also, in 34 State Bar Journal, 707, it was said: 'The amendment to 3601(a) restricts the rule of Singleton v. Bonnesen * * * Workmen's Compensation is now the exclusive remedy of an employee injured or killed by the negligent act of a co-employee acting within the scope of his employment. An employee, however, may sue a co-employee for injuries or death proximately caused by: 1) a willful and unprovoked physical act of aggression, 2) intoxication, or 3) an act in reckless disregard of another's safety and a calculated willingness to permit such injury. * * *' In 2 Witkin, Summary of California Law, Workmen's Compensation, section 19, page 1671, it is said that the 1959 legislative change in section 3601 partially nullified the right of one employee to sue another by making the exclusive remedy section cover the remedy against any other employee of the employer, with certain exceptions. See also, to the same effect, Continuing Education of the Bar, California Workmen's Compensation Practice, section 19.6.
Early in the history of compensation cases in California it was held that the broad purpose of Workmen's Compensation legislation was to transfer the risk of injury from the individual workman to the employer, with the ultimate result that the economic burden initially imposed upon the employer might ultimately be distributed among the consuming public as a part of the cost of production. (Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 694, 151 P. 398.) An injured employee covered by the compensation statutes receives compensation for injuries sustained 'in the course of his employment' regardless of his own negligence or the negligence of his co-employees, and in return gives up his right to sue his employer. It is reasonable to suppose that the Legislature would also wish to immunize coemployees for negligently inflicted injuries. The reasons supporting such legislation are suggested in 2 Larson, Workmen's Compensation Law, section 72.20, pages 173-4, where it is said: 'The reason for the employer's immunity is the quid pro quo by which the employer gives up his normal defenses and assumes automatic liability, while the employee gives up his right to common-law verdicts. This reasoning can be extended to the tortfeasor co-employee; he too is involved in this compromise of rights. Perhaps one of the things he is entitled to expect in return for what he has given up is freedom from common-law suits based on industrial accidents in which he is at fault. * * * It must never be forgotten that the co-employee, by engaging in industrial work over a period of years, is subjected to a greatly increased risk not only of being himself injured, but also of himself negligently causing injury. In other words, by becoming employed in Here, as we have noted, appellant sustained an injury on the company parking lot after her shift had ended and as she was preparing to leave for her home. She was 'in the course' of her employment at that time and hence entitled to compensation benefits. Respondent, whose physical situation was exactly the same as that of appellant, except that she had reached her vehicle and was in the process of backing out of the parking stall, was also 'in the course' of her employment. Nevertheless appellant argues that respondent was not acting in the 'scope' of her employment, and hence is subject to an action for damages for negligently caused injuries. There is no reason to assume, however, that the Legislature intended the area of immunization to be less than the area of compensation. Here conditions of compensation existed for both appellant and respondent, and we think that appellant's action may not be maintained under the facts of this case. If appellant's contentions are correct, then any employee negligently injured by a coemployee and entitled to compensation because the injury was sustained 'in the course' of employment, could maintain an action for damages against the negligent coemployee, unless the negligent coemployee could plead and prove facts sufficient to show that his acts and conduct were done strictly within the 'scope of his employment' in the true respondeat superior sense of those words. The negligent coemployee would carry the burden of proof, and to escape a crippling or perhaps disastrous judgment would be required to prove all the necessary elements involved in the common law concept of respondeat superior. If unable to sustain the burden of proof as to this defense, the negligent co-employee would have no alternative other than to suffer judgment. Moreover, since the employer is subrogated to the rights of the injured employee in such cases, the result would be that the utlimate burden of the industrial injury would fall not upon the employer, to be distributed among the consuming public, but upon the shoulders of the coemployee, to be borne by him individually.
We conclude, therefore, that where as here conditions of compensation exist for both parties, an employee injured by the negligent act of a coemployee may not maintain an action against the coemployee for the negligent injury unless one or more of the exceptions referred to in section 3601 is applicable. Where the exceptions noted are not applicable, the compensation provisions of the Labor Code constitute the sole remedy of the injured employee.
We have considered the case of McIvor v. Savage, 220 Cal.App.2d 128, 33 Cal.Rptr. 740. In McIvor the court was careful to point out that affidavits filed in support of the motion for summary judgment were clearly insufficient, and that triable issues of fact remained in the case. It was for this reason that summary judgment in favor of the moving party was reversed, in full accord with rules established by authorities cited in the opinion at page 133, 33 Cal.Rptr. 740. It is true that in McIvor the court proceeded to consider the effect of the 1959 amendments to section 3601, and concluded that the Legislature intended a distinction between the terms 'course of employment' as used in section 3600 and 'scope of employment' as used in section 3601. It is with these comments in McIvor that we are unable to agree.
Appellant also cites Pacific Emp. Ins. Co. v. Industrial Acc. Comm., 26 Cal.2d 286, 158 P.2d 9, 159 A.L.R. 313 and De Mirjian v. Ideal Heating Corp., 112 Cal.App.2d 251, 246 P.2d 51, where it is said the court distinguished the phrase 'course of employment' from 'scope of employment.' Pacific Appellant further argues that if section 3601 is construed so as to take away an injured employee's right of action against a negligent coemployee for an injury sustained in the course of employment, then the section violates both state and federal Constitutions in that the law is not uniform in its operation (Calif.Const. Art. I, § 11) and denies appellant the equal protection of the laws (U.S.Const. 14th Amendment). There is no merit in this ground of appeal. No constitutional challenge to the statute was raised in the trial court. The issue is raised for the first time on appeal. As a general rule, a constitutional issue in civil cases must be raised at the earliest opportunity or it will be deemed waived. (See Hershey v. Reclamation District No. 108, 200 Cal. 550, 564, 254 P. 542; Jenner v. City Council, 164 Cal.App.2d 490, 498, 331 P.2d 176.) Although the general rule might well be applied here, we have nevertheless considered appellant's claim that section 3601 is unconstitutional and find that it cannot be sustained. The recent case of Lowman v. Stafford, 226 A.C.A. 60, 67, 37 Cal.Rptr. 681, 684-685, upheld the constitutionality of section 3601. It was there said: 'A statute [duly] enacted by the Legislature will not be struck down on constitutional grounds solely for the reason that it curtails or abrogates some common law remedy, unless, of course, it affects causes of action existing at the time of the enactment of such statute, (citations). Although rights of property which have been created by the common law cannot be taken away without due process, the law itself, as a rule of conduct, may be changed at will by the Legislature (citations), subject only to constitutional provision. '* * * It may create new rights or provide that rights which have previously existed shall no longer arise, and it has full power to regulate and circumscribe the methods and means of enjoying those rights, so long as there is no interference with constitutional guaranties.' (Citations.)' By its express language, the 1959 amendment to section 3601 did not entirely abolish the cause of action of the negligently injured employee against his coemployee, but restricted the right of recovery to those cases where the coemployee's conduct is embraced within the exceptions noted in the statute. Moreover, appellant is not denied equal protection of the laws by section 3601 as we have construed it. Equal protection of the law simply means that all persons of a given class enjoy the same protection of the law as is enjoyed by other persons or classes of persons under like circumstances. (16 Am.Jur.2d 848 and cases cited.) Here the statute in question bears equally upon appellant and all who are similarly situated and hence satisfies the equal protection clause of the Fourteenth Amendment to the United States Constitution.
The judgment is affirmed.
DRAPER, P.J., and DEVINE, J., concur.