author: PRESTON, J. LANGDON, J., Dissenting.

text:
    [S. F. No. 15025.
    In Bank.
    November 1, 1934.]
    POSTAL TELEGRAPH CABLE COMPANY (a Corporation), Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION and CHAS RUDY MAHRET, Respondents.

      Smith, Southwell & Smith, Sanborn H. Smith and R P. Wisecarver for Petitioner.
    Everett A. Corten and George Olshausen for Respondents.
    Gibson, Dunn & Crutcher, Edward E. Bacon, Ira C. Powers, B. E. Pemberton, Edmund D. Leonard, Ivan A. Schwab, Daniel W. Burbank, C. P. Laumeister, Stanley Burke, Bronson, Bronson & Slaven, John H. Painter, Pillsbury, Madison & Sutro, Jesse H. Steinhart, John J. Goldberg, George L. Greer, Wyckoff, Gardner & Parker, Cooley, Crowley & Supple, O’Connor, Fitzgerald & Moran, Hadsell, Sweet, Ingalls & Lamb, Redman, Alexander •& Bacon, Myrick & Deering and Scott, Neumiller & Ditz and Gerald M. Desmond as Amici Ctiriae on Behalf of Petitioner.
   PRESTON, J.

This application for certiorari must be sustained, as will appear from a consideration of the fundamental limits set by the law establishing the workmen’s compensation system (Act 4749, Deering’s Gen. Laws, pp. 2272 et seq.).

Petitioner is the Postal Telegraph Cable Company, a corporation. Respondents are the Industrial Accident Commission and Chas. Rudy Mahret, who was in the employ of petitioner as a motorcycle messenger. Said employee was injured in a traffic collision at Geary Street and Presidio Avenue, San Francisco, on August 31, 1932, while going from his home at 1728 Anza Street, along Geary Street, to his place of employment at Van Ness Avenue and Pine Street in said city. He was traveling on his motorcycle, with side ear attachment in which was riding a friend whom he was taking to his place of employment.

Petitioner employed three classes of messengers, foot, bicycle and motorcycle. Mahret furnished, fueled, maintained and operated his own motorcycle, and was paid compensation for his services and for use of the machine in the sum of approximately $30 per week, there being no segregation of the respective amounts allowed to cover each of these items. He was furnished a uniform for which a charge of 6 cents a day was made against him. ITis hours were from 8 A. M. to 6 P. M., with an hour off for lunch. The employer furnished no place to house or garage the motorcycle. The custom of the motorcycle messengers was to ride their machines to and' from work and garage them either at their homes or on near-by premises in whatsoever manner they desired. At the time he was injured Mahret was on no special errand for petitioner and he had not yet reached his place of employment where his duties were to begin. It may be fairly inferred that he was required to furnish and maintain the motorcycle for his use in messenger service and, as above stated, his employer maintained no facilities for storing the car when off duty.

Do these facts entitle the employee, under the act, to compensation for his said injuries? Section 6 thereof (Deering’s Gen. Laws, supra, p. 2276) provides “Liability for the compensation provided by this act, . . . shall . . . exist against an employer for any injury sustained by his employees arising out of and in the course of the employment ... in those cases where the following conditions of compensation concur ... (2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment.”

Upon what basis can it be said that the injury here was one arising out of and in the course of the employment or occurring while the employee was “performing service growing out of and incidental to his employment”? These elements must all be present to authorize compensation: Enterprise Foundry Co. v. Industrial Acc. Com., 206 Cal. 562 [275 Pac. 432] ; Larson v. Industrial Acc. Com., 193 Cal. 406 [224 Pac. 744]; London G. & A. Co. v. Industrial Acc. Com., 190 Cal. 587 [213 Pac. 977]; California C. I. Exch. v. Industrial Acc. Com., 190 Cal. 433 [213 Pac. 257]; Glass on Workmen’s Compensation, p. 232; Willis on Workmen’s Compensation, p. 9.

In the case of California C. I. Exch. v. Industrial Acc. Com., supra, at page 436, it is said: “There must be some connection between the injury and the employment other than the mere fact that the employment brought the injured party to the place of injury. There must be some causal connection between the employment and the injury in the sense that, by reason of the employment, there was an unusual or additional exposure of the injured party to the kind or character of hazard and danger (in this ease an ordinary street risk) which caused the injury.”

When an employee is off duty the relation of employer and employee is suspended and does not reattach until the employee resumes the master’s work. It is true that this re-entry into service may occur under special circumstances before the employee reaches the premises of the master, but this can happen only where, by contract, express or implied, the relationship attaches at such earlier time. We need not pause to give examples of this exception.

The contract here did not require of Mahret any particular means of travel to and from his place of service. Whether he used the motorcycle to transport himself from his home to his place of employment and return, was of no concern to his employer under said contract. Likewise, the question of whether he stored the machine at or near the master’s premises or stored it at home or near by is a false factor in the problem. The essence of the arrangement was that said employee report at 8 A. M. with a motorcycle ready for service; the service began at said place and at said time and not at a place and time when the employee was en route from his home and, as in this instance, many blocks away from the place of service.

This employee was on no errand for his emplo3er and was traveling under no restrictions of any kind as to mode or direction of travel. He could not only deviate for the convenience of his friend but could also perform any task for himself or for another at any time before reaching the place where his duties were to begin. This holding is in accord with the overwhelming weight of authority where the principle involved is identical with that found in -the instant case.

Some of these cases are: Grathwohl v. Nassau Point, etc., 216 App. Div. 107 [214 N. Y. Supp. 496], affirmed by the Court of Appeals, 243 N. Y. 567 [154 N. E. 608] ; Thompson v. Glen Hill Gravel Co., 19 La. App. 854 [141 So. 797]; Fidelity & Cas. Co. v. Industrial Acc. Com., 79 Utah, 189 [8 Pac. (2d) 617] ; Morey v. City of Battle Creek, 229 Mich. 650 [202 N. W. 925, 38 A. L. R. 1039] ; Johnson v. State Highway Com., 125 Me. 443 [134 Atl. 564]; Denver & R. G. W. R. Co. v. Industrial Acc. Com., 72 Utah, 199 [269 Pac. 512, 62 A. L. R. 1436]; Hartford Acc. & Ind. Co. v. Lodes, 164 Okl. 51 [22 Pac. (2d) 361]; Kneeland v. Parker, 100 Vt. 92 [135 Atl. 8, 48 A. L. R. 1396]; Inland Gas Corp. v. Frazier, 246 Ky. 432 [55 S. W. (2d) 26] ; Chernick’s Case, (Mass.) 189 N. E. 800.

In fact this ease cannot be successfully distinguished from the case of Holopoff v. Industrial Acc. Com., 131 Cal. App. 554 [21 Pac. (2d) 649]. The only case to the contrary is Maryland Casualty Co. v. Smith, (Tex. Civ. App.) 40 S. W. (2d) 913. Counsel assert that it is distinguishable from the case at bar upon the wording of the statute of Texas, which provides: That the words “injury received in the course of employment” shall include “all other injuries of every kind and character having to do with, and originating in the work, trade, business or profession of the employer, received by the employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere”. See American Indemnity Co. v. Dinkins, (Tex. Civ. App.) 211 S. W. 949; also, Federal Surety Co. v. Eagle, (Tex. Civ. App.) 25 S. W. (2d) 898. But we need not consider the strength of this claim altho it seems to be recognized by the Texas courts. We prefer to rest our conclusion upon the proper construction of our own statute, steadied by the fact that statutes using the identical language of our own have been uniformly construed as not covering cases of the character of this one.

Again, to sustain respondents’ claim would be to admit a liability of the employer for the torts of the employee committed while off duty. This identical question was before the Supreme Court of Washington in the ease of Carroll v. Western Union Tel. Co., 170 Wash. 600 [17 Pac. (2d) 49], and it was there held under circumstances in all essential respects identical with those of the instant case that as a matter of law the employer was not liable.

The award is annulled.

Waste, 0. J., Shenk, J., and Spence, J., pro tern., concurred.

LANGDON, J., Dissenting.

I dissent. This ease has had a somewhat checkered career. In the proceeding before the Industrial Accident Commission, compensation was awarded to the respondent employee. An application for a writ of review was denied by the District Court of Appeal, First District, Division One, without opinion. A hearing was granted in this court, and our decision was rendered May 17, 1934, affirming the award, no dissent being filed. A petition for rehearing was nevertheless granted on June 15,-1934, and the court now, in an opinion signed by four justices, annuls the award. Justices Thompson and Seawell, who participated in the original decision, were not present at the oral argument on rehearing, and hence are disqualified from participating in the present decision. Justice Curtis is absent. Justice Spence of the District Court of Appeal is at present a justice of this court pro tern., and his signature is necessary to make this a majority opinion. On this important case, therefore, the latest decision appears to be influenced largely by the temporary and fortuitous change in the personnel of the justices qualified to pass upon it.

I am convinced that the original disposition of the cause was proper, and I adopt as my dissent, the former opinion of this court, reading as follows:

“This is a petition by an employer to review an award of the Industrial Accident Commission. Charles Mahret, the injured employee, was hired as a messenger boy, to deliver telegrams for the Postal Telegraph Cable Company at its branch office at Pine street and Van Ness avenue in San Francisco. He used a motorcycle, which he owned and maintained himself. On the morning of the accident, he was driving to work in the machine, and was struck by a street car, sustaining injuries. The commission found that the accident occurred in the course of, and arose out of the employment, and gave its award of compensation, based upon weekly earnings of $30.
“Petitioner attacks the award chiefly on the ground that the case is governed by the ‘coming and going rule’, that is, that injuries sustained by an employee on his way to work, or returning from work, are not compensable. Beeognizing that this rule is subject to exceptions, as where the employee is compelled to use a particular method of transportation as incident to his employment, petitioner contends that no such exception is established here. It is said that the company pays a fixed rate per message for delivery thereof, and employs foot, bicycle and motorcycle messengers, and that it is optional with the employee whether he delivers a message on foot or uses the mechanical methods of transportation.
“The record does not support this position. The testimony clearly shows that the company hires all three classes of messengers, but that after being hired, a messenger is placed in one of the classes, and is assigned to an office where his services can be effectively used. Messengers without machines are placed in offices in the business district; motorcycle messengers are assigned to the more outlying districts. Thereafter, in the absence of some emergency, the messenger must appear equipped to do the work in the place to which he is assigned. Mahret was hired as a motorcycle messenger, and was required to report for work each day with his machine.
“This fact alone would' not, of course, take the case out of the coming and going rule’. But the record also establishes without conflict the fact that no facilities for storage of the machines were afforded by the company, so that Mahret was forced to make his own arrangements for garage and maintenance. The case, then, is one where the nature of the employee’s work compels him to drive to and from work with the machine, unless he pushes it before him. Are injuries received during such driving compensable? We think that they are. The risks to which the employee is subject are a result of the employment, and the situation is essentially the same as where the employer furnishes transportation and compels the employee to make use of it. It is, of course, well settled that in the latter ease, that is, where the employer furnishes and controls the transportation, the injuries received are compensable. (Rader v. Keeler, 129 Cal. App. 114 [18 Pac. (2d) 360]; Trussless Roof Co. v. Industrial Acc. Com., 119 Cal. App. 91 [6 Pac. (2d) 254] ; Dominguez v. Pendola, 46 Cal. App. 220 [188 Pac. 1025]; Sylcox v. National Lead Co., 225 Mo. App. 543 [38 S. W. (2d) 497].)
“A factual distinction between the instant case and those cited above, which is greatly stressed by petitioner, is that in the cited decisions the employer owned the means of transportation, while in the instant case the employee was the owner. But this distinction is immaterial in determining the right to compensation. This right depends upon the existence of a risk peculiar to the employment. Where, by express directions, or with the knowledge and acquiescence of the employer, the employee is compelled to make use of a certain method of transportation, the risk involved in its use is one which results from the employment, and it can make no difference whether the vehicle is owned by the employer, the employee or a third party; nor can it make any difference whether it was operated by the employer, the employee or a third party.
“A case directly in point is Maryland Casualty Co. v. Smith, (Tex. Civ. App.) 40 S. W. (2d) 913. There the employee, hired to deliver parcels, was required to furnish his own motorcycle, but was given no place to store it, and consequently had to keep it himself. He was injured on his way to work and the court affirmed an award of compensation. Petitioner suggests that differences in the terminology of the Texas and California Workmen’s Compensation statutes may account for the decision, but we are unable to see wherein the general language of the Texas act, authorizing compensation when the employee is ‘ engaged in or about the furtherance of the affairs or business of the employer’, is broader than that of our own. It may be observed that the opinion in the Maryland Casualty Company case relies for its basic governing principles upon a Minnesota decision, Novack v. Montgomery Ward & Co., 158 Minn. 495 [198 N. W. 290], and the statutory language therein considered was the same as that found in the California act, that is, compensable injury must occur ‘in the course of employment’ and must ‘ arise out of it’.
“The Industrial Accident Commission of this state has previously indicated its approval of this exception to the ‘ coming and going rule’, even where the employee uses his own machine. (Hartford Acc. & Ind. Co. v. Industrial Acc. Com., 17 I. A. C. 162.)
“Petitioner places great reliance upon the case of Holopoff v. Industrial Acc. Com., 131 Cal. App. 554 [21 Pac. (2d) 649]. There the employee was a delivery boy using his own motorcycle, and was injured on his way to work. The commission denied compensation, and its decision was affirmed. The case bears some resemblance to the instant case, but upon full consideration we do not deem it conclusive. The main point with which the court was concerned was whether the employee had deviated' from his regular route on the morning in question on an errand for his employer or for his private purposes. It appeared that he had called on a friend to deliver something to him. The court held that the deviation was for a private purpose, and that at the time the employee was not' acting in the course of his employment. The court’s general statement of the ‘coming and going rule’ is not significant for nothing appears in the opinion to suggest that the employee was compelled, by the nature of his employment, to make his own arrangements to store his machine. This element is, as we have seen, the controlling consideration in the case before us. We are satisfied that the conclusion of the commission that the injuries of Mahret were compensable finds support in the record and in the law.
“The only other question is whether the commission properly awarded compensation based upon Mahret’s gross earnings of $30 per week, or whether it should have deducted therefrom the cost of maintaining the motorcycle, amounting to $50 per month. The statute, section 12, subdivision b, provides that the average weekly earnings shall not include any sum which the employer may pay to the employee ‘to cover any special expense entailed on him by the nature of his employment’. It seems clear that Mahret was not paid any sum as special expenses. His earnings were $30 per week, and the fact that his job required him to pay for the upkeep of a motorcycle does not mean that his employer paid him the cost of such upkeep as ‘special expenses’. The language of the act does not permit such deduction any more than it permits deductions for the cost of tools or clothes. This view is fully developed in Springfield Coal Min. Co. v. Industrial Com., 291 Ill. 408 [126 N. E. 133, 22 A. L. R. 859], where, under a statute practically identical with our own, the supreme court of Illinois held that where coal miners were compelled to equip themselves with drilling machines, shovels, lamps, carbide, powder, fuse, squibs, picks, wedges, sledges and tool and supply boxes, but were paid at a certain rate per ton of coal mined, it was improper to deduct the cost of these articles from the gross earnings to determine the basis of a compensation award. There is, to be sure, a decided conflict of authority on this point. The opposite view is presented in Richards v. Central Iowa Fuel Co., 184 Iowa, 1378 [166 N. W. 1059]. We are of the opinion that the rule of liberal construction in favor of compensation, declared in our statute, section 69a, necessarily leads to the interpretation made by the commission. ’ ’

Rehearing denied.

Langdon, J., and Thompson, J., voted for a rehearing.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [S. F. No. 15050.
    In Bank.
    November 1, 1934.]
    WILLIAM LANDSBOROUGH, Petitioner, v. EARL LEE KELLY, as Director of Public Works, etc., et al., Respondents.

      Warren Olney, Jr., J. M. Hannon, Jr., Edwin S. Pillsbury and MeCutchen, Olney, Mannon & Greene for Petitioner.
    U. S. Webb, Attorney-General, E. B. Power, Assistant Attorney-General, C. C. Carleton, Frank B. Durkee, Jack Howard and 0. R. Montgomery for Respondents.
    Morrison, Hohfeld, Foerster, Shuman & Clark, as Amici Curiae on Behalf of Respondents.
   THE COURT.

This is a petition for a writ of mandate. Petitioner brought this proceeding as a citizen, resident, elector and taxpayer of the state of California and the county of Kern, to compel respondents to take certain action with respect to a highway construction project. Respondents are Earl Lee Kelly, Director of Public Works; O. H. Purcell, Chief of the Division of Highways and State Highway Engineer, and G. T. McCoy, Assistant State Highway Engineer.

In April, 1932, R. E. Pierce, one of the district engineers of the division of highways, recommended the construction of a portion of the main highway from Sacramento to San Francisco, located between Fairfield and Vacaville, approximately 3.3 miles long, commonly known as the Vacaville project. On August 5, 1933, the California highway commission adopted a revised budget, allocating therein the maximum sum of $172,000 for this work. Thereafter respondents approved plans and specifications and cost estimates, which provided that the paving of the proposed highway should consist of asphalt concrete pavement, constructed in accordance with the “Standard Specifications” of the department of public works, division of highways, an official publication. On November 10, 1933, respondents took preliminary steps toward letting a contract for the proposed road by issuing a notice of the work and call for sealed bids. Bids were to have been opened on November 29, 1933, but shortly prior to that date, petitioner brought this proceeding, and this court issued an alternative writ of mandate commanding respondents to withdraw the plans and specifications from competitive bidding, reject any and all bids submitted on said plans and specifications, and to amend the same to provide for the alternate use of Portland cement concrete pavement and asphalt concrete pavement, or to prepare new plans and specifications making such provision. Bids were thereupon returned unopened, and no further action in connection with the award of the contract was taken. Respondents filed a demurrer and an answer to the alternative writ. On the return day, this court made an order referring issues of fact to Honorable A. E. Shaw as referee. Hearings were held by him, and findings of fact were made and filed.

The issue involved is the validity, construction and effect of section 365e% of the Political Code, enacted in 1933. It appears that prior thereto it was the policy of the department of public works, in constructing highways of superior quality, to use either asphalt concrete or Portland cement concrete, and by specifying only one in connection with a particular job, to maintain some sort of equality between the two types of material, where engineering conditions permitted, in order not to discriminate against the financial interests concerned in each industry. Section 365ey2, obviously designed to effect a change in this policy, reads as follows:

“Whenever any high-type paving work is to be done by contract under the control and direction of the Department of Public Works which is to be paid for in whole or in part with moneys coming out of the State highway maintenance fund or the State highway construction fund, and in the judgment of said department the conditions do not require the use of a particular type of pavement, the said department shall cause to be prepared alternate plans and specifications contemplating the use of all such materials as are adopted as standard for high-type paving by the Division of Highways and acceptable to it. The Department of Public Works shall then advertise and call for bids for the doing of such work based on the use of such alternate materials and upon receipt of such bids shall proceed to the award of a contract to the lowest qualified bidder. Whenever the words ‘high type paving’ are used in this act, they shall be construed to include only asphalt concrete pavement and Portland cement concrete pavement as designed by the Division of Highways.”

It is clearly the purpose of this statute to make the choice of one or the other type of pavement (apart from engineering considerations), a matter to be determined by competitive bidding. The “conditions” mentioned are undoubtedly the physical conditions and not the economic factors. Where a particular road, as a matter of engineering, requires for its proper construction and maintenance asphalt concrete pavement alone, or Portland cement concrete pavement alone, this may be specified; but where a satisfactory road may be built of either type, and neither involves excessive maintenance costs, alternate specifications must be made. It is plainly improper to specify one type on the ground of its lower initial cost, since the legislature has expressly provided for alternate bids, thus evidencing an intention to have the cost determined by competitive bidding, and not by estimates of the department. It is entirely possible that a contractor, by reason of his equipment, experience or other factors, may use the more expensive of the two materials, and yet submit a lower bid for the entire job than a contractor using the cheaper material.

The findings of the referee are mainly in favor of petitioner. He found in substance that respondents Kelly, Purcell and McCoy did not personally determine that the conditions of the Vacaville project required the use of a particular type of pavement, but that they left these matters in this and in all other cases for the determination of the engineers of the division of highways; that respondents had laid down no policy with reference to conditions requiring the use of asphalt concrete pavement or Portland cement concrete pavement; that since section 365e% took effect, contracts for about fifty projects had • been let and that in no case were alternate plans and specifications drawn or alternate bids called for; that in approximately ninety per cent of the highway projects where high-type paving is desired, it is feasible to use either type of pavement if initial cost is disregarded; that up to June 30, 1932, 1359 miles of primary state highways and 340 miles of secondary state highways in this state were constructed with Portland cement concrete pavement, and only 623 miles of primary and 169 miles of secondary highways with asphalt concrete pavement; that the conditions of the Vacaville project do not require a particular type of pavement, and that Portland cement concrete pavement would be as suitable as asphalt concrete pavement provided that the element of initial cost is left out of consideration; that while it is probable that the use of the Portland cement type would cost more than the other, it is impossible to state what the difference in cost, if any, would be, and that only competitive bidding upon the basis of alternate plans and specifications would accurately determine the difference.

The referee found also that R. E. Pierce, engineer in charge of the district in which the proposed road is located, originally recommended Portland cement concrete for the job; that later he, together with B. W. Booker, office engineer of the district, recommended asphalt concrete pavement instead, the change in recommendation being based upon an increased cost of the Portland cement type, and also an adverse soil condition, which could, however, be overcome by laying a thicker subgrade of selected material; that Fred J. Grumm, engineer of surveys and plans of the division of highways, approved the changed recommendation for the above reasons- and for the additional reason that the project involved side hill cuts and fills, but he admitted that, disregarding cost, a satisfactory highway could be made with Portland cement concrete paving.

These findings are all supported by the evidence. Petitioner contends that they establish either failure to exercise discretion, or a clear abuse thereof, justifying the issuance of the writ. Respondents take the position that the determination made was within their discretion, and was based upon conditions of the proposed work. They also attack the constitutionality of the statute.

The constitutional points require no discussion. The statute is said to be uncertain, and to have a misleading title. These issues are not greatly stressed, and in our opinion are wholly without merit.

The propriety of the remedy of mandamus, in the event that an abuse of discretion is proved, is clear. While mandamus will not lie to compel the exercise of discretion in a particular manner, it will lie to correct an abuse of discretion, and where the petitioner is clearly entitled to a certain action, may be used to compel such action. (Wood v. Strother, 76 Cal. 545 [18 Pac. 766, 9 Am. St. Rep. 249]; Tulare Water Co. v. State Water Com., 187 Cal. 533 [202 Pac. 874] ; Inglin v. Hoppin, 156 Cal. 483 [105 Pac. 582].) The case of Stanley-Taylor Co. v. Board of Supervisors, 135 Cal. 486 [67 Pac. 783], is distinguishable, for there the board had a right to reject bids according to its own belief as to the public interest, whereas here the discretion is to be exercised upon consideration of the conditions of the road.

In the light of the findings and the evidence, it is possible to reach but one conclusion: That the respondents were guilty of an abuse of discretion in failing to call for alternate bids. R. B. Pierce, district engineer, B. W. Booker, office engineer, and Fred J. Grumm, of the headquarters office, each testified under cross-examination that by taking proper precautions a satisfactory road could be built with Portland cement concrete. Grumm, for example, was asked: “Q. And by spending such money as is necessary to build a suitable subgrade on which to lay a PCC pavement on this Vacaville project, you could have built there a road with a PCC pavement which would have had as good an expectancy of life as that ordinarily used by the highway department when it puts in PCC pavement in ordinary practice? A. I believe I could do that and have an assurance that that Portland cement concrete pavement would endure similarly to that placed under more favorable conditions. J. J. Jessup, a civil engineer, formerly city engineer anil superintendent of streets of Berkeley and city engineer of Los Angeles, testified that he had made a careful study of the plans and specifications and of conditions on the ground; and that not only would Portland cement concrete be proper, but “any other conclusion in my estimation, practically eliminates the use of Portland cement concrete pavement for high type pavement”. As above stated, the referee found that this type was suitable. In spite of this testimony and these admissions, respondents assert that it was entirely proper to call for but one type of pavement. They argue that they came to the honest conclusion, as a result of engineering reports, that the physical conditions—adverse soil, hill cuts and fills, were unsuitable for Portland cement pavement. If that type were used, they say, it would be necessary for the contractor to go to such excessive expense in preparing the subgrade and in overcoming other adverse conditions, that he could not possibly do it at a figure which would compete with the contractor using the asphalt type. They conclude that the preparation of alternate plans and specifications would be an idle act, resulting in needless extra expense.

This reasoning nullifies the effect of the statute. It was undoubtedly the intention of the legislature to eliminate favoritism, prejudice and artificially maintained equality between producers, and to make the choice of pavement a result of free, competitive bidding between the two recognized superior materials. The primary object is of course economy in road construction, but the legislature has determined that such economy is to be achieved by means of competition between the producers of two standard materials. If the department substitutes its own judgment on costs, the benefits of such competition are lost. The judgment of the department may be an entirely honest one, and in the present proceeding no bad faith is charged. But under the statute, an honest opinion that one type of pavement will cost more than another cannot be the basis of the department’s action. Physical conditions alone are committed to the discretion of the respondents.

We may concede that in an exceptional case, where the cost of overcoming adverse conditions would be so unusually high that it would be foolish to expect any competition, the department might be justified in dispensing with alternate bids. Petitioners make the same concession. In such a case the physical conditions may be said to require one type, since those conditions could not be changed save at unreasonable expense. But in the instant case, we have an original recommendation by a qualified officer, for Portland cement type pavement, and a finding by the referee that the added cost, if any, of preparing the road for such pavement, is uncertain, and cannot be determined save by competitive bidding. Respondents had no definite information on this matter, and Grumm’s rough estimate on the stand amounted to between $6,500 and $7,000 per mile of road. Since the total job embraced something over three miles and was estimated originally to cost $172,000, if done with Portland cement concrete, there is certainly no such unreasonable difference, even accepting Grumm’s guess, as to justify the failure to call for alternate bids. There is evidence in the record that bids might possibly be as much as twenty-five per cent below the estimated cost. And the figure given was plainly conjectural, since Grumm admitted that he had not prepared plans and specifications, and could not definitely state what precautions and corrective steps would be needed to prepare the soil for Portland cement concrete.

It follows that petitioner is entitled to the relief demanded, namely, the preparation and issuance of new or amended plans, specifications, notices and advertisements, providing for the alternate use of Portland cement concrete pavement and asphalt concrete pavement.

Let a peremptory writ of mandate issue accordingly.


author: LANGDON, J.

text:
    [S. F. No. 15146.
    In Bank.
    November 1, 1934.]
    THOMAS WALSH et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION and JAMES KENNEY, Respondents.
    Redman, Alexander & Bacon and R. P. Wisecarver for Petitioners.
    Everett A. Corten and Emmet J. Seawell for Respondents.
   LANGDON, J.

This is a petition to review an award of the Industrial Accident Commission. Respondent Kenney, the employee, fell from a ladder while engaged in his work as a painter, sustaining various injuries. Petitioners, the employer and his insurance carrier, admitted liability, and gave medical treatment and compensation. Kenney filed an application before the commission for an adjustment of claim, and a hearing was had. The sole question was as to the nature and extent of the disability. Among other conditions, the medical report submitted by petitioners showed a “spondylolisthesis” of the fifth lumbar vertebra, which the examining doctor asserted was congenital and not related to the accident. The applicant sought leave to secure a medical report on his behalf, and an order was made permitting him to file a report of Doctor Sonnenberg within five days, the case to be submitted five days later unless further proceedings were requested. Nearly a month later, Kenney filed a report, not by Doctor Sonnenberg, but by Doctor Cleary, who stated that the condition described above was a fracture, and of traumatic and not congenital origin.

Upon receiving a copy of this report, petitioners requested a further hearing to present evidence in contradiction thereof, but were advised by the referee that he had already decided to rule in favor of the applicant, and that any attack that they desired to make on the report could be embodied in a petition for rehearing. Thereafter the commission made its findings and award. Petitioners sought a rehearing and offered reports of Doctors McChesney and Kuggles to the effect that the alleged fracture was a congenital anomaly. Rehearing was denied and a review was sought.

Petitioners contend that the award constitutes a denial of due process of law, in that it was rendered upon evidence received in the record after the hearing and without notice or opportunity to controvert it. They also contend that the award was made in violation of section 19 (c) (7) of the Workmen’s Compensation Act for the same reason, said section providing that reports shall be served upon other parties to the proceeding and opportunity be given to produce testimony in rebuttal before the decision is rendered.

ít may be conceded that the referee acted improperly in reaching his decision upon the report without giving petitioners an opportunity to controvert it. But a mere error in procedure is not a ground for annulling the commission’s award. (Massachusetts Bonding Ins. Co. v. Industrial Acc. Com., 176 Cal. 488 [168 Pac. 1050] ; Frankfort Gen. Ins. Co. v. Pillsbury, 173 Cal. 56 [159 Pac. 150].) Petitioners were eventually in a position to present to the commission, in their petition for rehearing, all the evidence deemed by them necessary to controvert the showing of the applicant. The commission, in ruling on that petition, was able to reach a decision on the merits upon a consideration of all of the evidence. The report of Doctor Cleary, though controverted by several reports submitted by petitioner, is sufficient to support the decision. If we were to annul the award and remand the proceeding to the commission, that body could make the same award on the same evidence, and we would then be bound to affirm it. It thus appears that the irregularity in the proceeding, while not commendable, did not deny any substantial right of petitioners, and that if petitioners were to prevail in this proceeding in review, they would gain nothing but delay. Under these circumstances ■we think that the decision of the commission should stand.

The award is affirmed.

Preston, J., Waste, C. J., Shenk, J., and Tyler, J., pro tern., concurred.

Rehearing denied.


author: SHENK, J.

text:
    [S. F. No. 15138.
    In Bank.
    November 1, 1934.]
    SECURITY-FIRST NATIONAL BANK OF LOS ANGELES (a National Banking Association), Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

      Newlin & Ashburn, O’Melveny, Tuller & Myers, Louis W. Myers and A. W. Ashburn for Petitioner.
    Everett W. Mattoon, County Counsel, Fred M. Cross, Deputy County Counsel, and Holbrook, Taylor, Tarr & Reed for Respondents.
    Kimball Fletcher, Ethel H. Harradine, iS. C. Schaefer, A. J. O’Connor, James Westervelt, L. H. Phillips, M. I. Church, Jack Leonard, Marion P. Betty and Hanna and Morton, as Amici Curiae on Behalf of Respondents.
   SHENK, J.

This is a proceeding in certiorari to annul an order of the respondent court vacating orders settling and approving the first nine accounts of the petitioner as trustee of a testamentary trust.

The petition sets forth as exhibits the judgment-rolls on the several proceedings settling said accounts of the trustee, the petition for probate of the will, the decree of distribution, and other portions of the records in previous proceedings relied upon by the party moving to vacate said orders. The matter is submitted on a general demurrer to the petition.

The will of Susan Emerson Wilshire was admitted to probate in December, 1920. In November, 1921, a decree was entered distributing the sum of $71,946.32 to the petitioner’s predecessor, as trustee, being the balance after deduction for inheritance taxes, etc., of a trust fund of $75,000 directed by the will of the testatrix to be established for the benefit of her sister, Sallie B. Wolcott. The income from the fund was directed to he paid to Sallie B. Wolcott during her lifetime and the remainder to W. R. Thomas, Caroline C. Griffin, Mary Dolan, Sarah T. Haddon and Susan T. Rearman, nephews and nieces of the testatrix. Subsequently and periodically the trustee filed its accounts current, ten in all. Pursuant to notice given and a hearing had on each thereof, the probate court made its order settling and approving each account as rendered. These orders had long since become final when the motion was made to set aside and vacate said ten orders approving the accounts. No point is urged against the validity of the order granting the motion as to the tenth current account, the application, as to that account, having been made within the time prescribed by section 473 of the Code of Civil Procedure.

The application to vacate the orders approving the first nine accounts of the trustee was made by W. R. Thomas, one of the nephews of the testatrix and a remainderman under the trust provisions and the decree of distribution. The motion was addressed to the respondent court sitting in probate in the matter of said estate. The grounds of the motion were that the respective orders were void because the trustee failed to include in its petition for settlement the names and addresses of, and to give notice to, the beneficiaries as required by sections 1120 and 1200 of the Probate Code and section 1699 of the Code of Civil Procedure; and on the further ground that the petition in each instance falsely stated that Sallie B. Wolcott was the sole beneficiary of the trust, when, in fact', the trustee knew that W. R. Thomas was such beneficiary and that he resided at Houston, Texas.

No appeal from the order vacating the orders settling and approving the accounts is provided for by statute, hence the question of the jurisdiction of the court to make such an order is reviewable in the present proceeding. (Tinn v. United States District Attorney, 148 Cal. 773 [84 Pac. 152, 113 Am. St. Rep. 354] ; 4 Cal. Jur. 1034; 11a Cal. Jur. 217.)

Unless the orders settling the first nine accounts current are shown to be void upon the face thereof, the probate court had no jurisdiction to vacate them on a collateral attack. A judgment or order is determined to be void upon its face when it is shown to be void by an inspection of the judgment-roll. (Estate of Davis, 151 Cal. 318, 324 [86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105]; Latta v. Tutton, 122 Cal. 279, 282 [54 Pac. 844, 68 Am. St. Rep. 30] ; Hill v. City Cab Co., 79 Cal. 188, 190 [21 Pac. 728]; Fletcher v. Superior Court, 79 Cal. App. 468, 474 [250 Pac. 195].)

The eighth current account of the trustee was filed in November, 1930. Section 1699 of the Code of Civil Procedure, applicable to that and all preceding accounts filed by the trustee, provided: “Where any trust has been created by or under any will to continue after distribution, the superior court shall not lose jurisdiction of the estate by final distribution, but shall retain jurisdiction thereof for the purpose of the settlement of accounts under the trust.

“And any trustee created by any will, or appointed to execute any trust created by any will, may, from time to time, pending the execution of his trust, or may, at the termination thereof, render and pray for the settlement of his accounts as such trustee, before the superior court in which the will was probated, and in the manner of the settlement of the accounts of executors and administrators. The trustee . . . shall for that purpose, present to the court his verified petition setting forth his accounts in detail, with a report showing condition of trust estate, together with a verified statement of said trustee, giving the names and postoffice addresses, if known, of the cestuis que trust, and upon the filing thereof, the clerk shall fix a day for the hearing, and give notice thereof of not less than ten days, by causing a notice to be posted at the courthouse in the county where the court is held, setting forth the name of the trust estate, the trustee, and the day appointed for the settlement of the account. The court, or a judge thereof, may order such further notice to be given as may be proper.

99

In the matter of each of the first eight accounts current, the trustee filed a verified account and petition “as trustee for Sallie B. Wolcott under the last will and testament of” Susan E. Wilshire, deceased, and set forth among the other matters required by the section quoted, “that the name of said beneficiary is Sallie B. Wolcott, and her address is Redondo Beach, California”. No other person was mentioned as a beneficiary under said trust. In each instance the clerk set a day for the hearing and settlement of the account, and notice was duly posted in accordance with the requirement of said section 1699 of the Code of Civil Procedure. The court made its final order as to each account after such notice and hearing thereon. No order was made in any instance for further notice. W. R Thomas at no time filed any request for special notices. Tie had appeared personally in the matter of the probate of the will by joining in an answer to an opposition to its probate instituted by one Henry Gaylord Wilshire.

Subsequent to the filing and settlement of the eighth account current, section 1699 of the Code of Civil Procedure was repealed and the provisions hereinbefore quoted were reenacted, with some changes and additions, in sections 1120 and 1200 of the Probate Code. Instead of the requirement that the petition give the names and postoffiee addresses, if known, of the cestui que trust, section 1120 requires that the petitioner give “the names and postoffiee addresses, if known, of the beneficiaries”. By section 1120 the clerk is required to give notice for the period and in the manner directed by section 1200 of the Probate Code, which is the same notice required by former section 1699 of the Code of Civil Procedure. Section 1120 of the Probate Code in addition provides that “notice of the hearing shall be mailed to the beneficiaries whose addresses are known, as provided in section 1200, whether they have requested special notice or given notice of appearance or not”.

The petition presenting the ninth account current of the trustee contained the same allegation respecting the beneficiary of the trust, viz., “The beneficiary of this trust and her address, in so far as said address is known to the trustee, are as follows: Sallie B. Wolcott, Redondo Beach, California.” Due notice of the hearing was posted in accordance with the provisions of section 1200 of the Probate Code, and the notice was mailed to Sallie B. Wolcott, Redondo Beach, California, and Ernest K. Hartman, assignee of Susan T. Pearman, Title Insurance Building, Los Angeles, California. The notice was not mailed to W. R. Thomas nor to any other beneficiary or remainderman of the trust estate.

For the purposes of this proceeding the petitioner does not dispute the fact that the remaindermen, as well as the cestui que trust, Sallie B. Wolcott, were beneficiaries under the trust and that the addresses of the beneficiaries and particularly of W. B. Thomas were alleged in the petition for the probate of the will. The respondents contend that these facts prove conclusively the lack of jurisdiction of the probate court to make the several orders settling the nine accounts of the trustee and the consequent invalidity thereof, for the reason, so it is claimed, that the court acquired no jurisdiction of W. B. Thomas in said nine proceedings.

The question is not concluded by the undisputed facts. A proceeding pursuant to section 1699 of the Code of Civil Procedure, or section 1120 of the Probate Code, like other successive proceedings in the probate and execution of a will or the administration of an estate, is a proceeding in rem. (Murray v. Superior Court, 207 Cal. 381 [278 Pac. 1033] ; King v. Chase, 159 Cal. 420, 425 [115 Pac. 207]; Estate of Davis, 136 Cal. 590 [69 Pac. 412]; Smith v. Fidelity & Deposit Co., 130 Cal. App. 45, 55 [19 Pac. (2d) 1018]; Nicholson v. Leatham, 28 Cal. App. 597, 601 [153 Pac. 965, 155 Pac. 98] ; 11 Cal. Jur. 236, 237; 1 Cal. Jur. 324; 11b Cal. Jur. 570; 11a Cal. Jur. 134, 135.) The same presumptions as to the validity of its final orders and decrees apply as to judgments and orders of any court of general jurisdiction. (Edlund v. Superior Court, 209 Cal. 690, 695 [289 Pac. 841]; Burris v. Kennedy, 108 Cal. 331 [41 Pac. 458]; Tobelman v. Hildebrandt, 72 Cal. 313, 316 [14 Pac. 20]; Wood v. Roach, 125 Cal. App. 631, 639 [14 Pac. (2d) 170] ; Fletcher v. Superior Court, 79 Cal. App. 468, 473, 474 [250 Pac. 195].) Therefore a subsequent application in the administration of the same estate to set aside a previous order entered in the course of probate jurisdiction after the same has become final is a collateral attack, and unless the order is void on its face, it may not on such attack be set aside. (Estate of Davis, 151 Cal. 318 [86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105] ; Luckey v. Superior Court, 209 Cal. 360, 364 [287 Pac. 450].) This applies to orders settling accounts. (Estate of Grant, 131 Cal. 426 [63 Pac. 731] ; Estate of Fernandez, 119 Cal. 579 [51 Pac. 851]; Estate of Pratt, 119 Cal. 156 [51 Pac. 47]; Moore v. Superior Court, 86 Cal. 495 [25 Pac. 22].) The filing of the petition setting forth the matters required by the code sections noted vests jurisdiction in the probate court (see Estate of Simmons, 168 Cal. 390, 395 [143 Pac. 697]), whether or not the allegations of the matters necessary to vest jurisdiction accord with the actual facts. (Estate of Strong, 119 Cal. 663, 666 [51 Pac. 1078] ; Nicholson v. Leatham, 28 Cal. App. 597, 601 [153 Pac. 965, 155 Pac. 98].) The situation here presented calls for the same conclusion as in the case of Murray v. Superior Court, 207 Cal. 381, 385 [278 Pac. 1033], wherein it was held that the omission in the petition for the probate of the will of the names and addresses of the heirs, legatees and devisees, even if known to the petitioner, does not deprive the court of jurisdiction, and that when the petition is silent as to such names and addresses, they must be deemed by the clerk to be unknown and he is not required to mail copies of the published notice. The notice required by the sections is constructive notice to everyone of the pendency of the proceedings and a hearing had and order entered pursuant thereto is conclusive upon all parties in interest. (Code Civ. Proc., see. 1701, Probate Code, sec. 1123; Estate of Leonis, 138 Cal. 194, 200 [71 Pac. 171]; Estate of Grant, 131 Cal. 426 [63 Pac. 731]; Moore v. Superior Court, 86 Cal. 495 [25 Pac. 22] ; Smith v. Fidelity & Deposit Co., 130 Cal. App. 45, 55 [19 Pac. (2d) 1018].) Absence of a personal notice in such proceeding does not deprive any person in interest of any of his constitutional rights. (Estate of Bump, 152 Cal. 274, 276 [92 Pac. 643]; Estate of Davis, 151 Cal. 318 [86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105] ; Estate of Davis, 136 Cal. 590 [69 Pac. 412].)

Inasmuch as the judgment-roll in each of the nine proceedings discloses that all of the requirements of the sections were complied with, and that the court issuing the orders of approval in each case had jurisdiction to make the order, it must be concluded that each thereof was valid and that the respondent court was without jurisdiction to vacate any of said orders.

The respondents urge that because of the undisputed facts the orders settling the accounts must be declared void under the rule stated or applied in such cases as Lake v. Bonynge, 161 Cal. 120, 133 [118 Pac. 535], People v. Harrison, 107 Cal. 541, 546 [40 Pac. 956], and Hill v. City Cab etc. Co., 79 Cal. 188 [21 Pac. 728]. The rule invoked, viz., that a judgment otherwise valid on its face may be declared void on a collateral attack where lack of jurisdiction of the party is admitted, presupposes, as stated in Lake v. Bonynge, supra, that the party resisting the attack as collateral “admits facts which show that a service of summons, constructive or personal, was not made on the defendant to the judgment and allows evidence to be introduced without objection showing this fact’’. This is the substantial equivalent of saying that if the party resisting the collateral attack in effect admits that the judgment, although valid on its face, is nevertheless void because of lack of jurisdiction of the defendant, the court must declare the invalidity in accordance with the admission. Such an admission is not revealed by the record on this proceeding. In fact the record is to the contrary. The decree of distribution and the record thereon, showing the name and address of W. R Thomas, and relied on by him, were not admitted in evidence without objection on the part of the petitioner. Furthermore, there is nowhere in the record any evidence, whether objected to or not, that the steps required by the applicable code sections were not followed to the full extent necessary to give the court jurisdiction to make the orders attempted to be vacated. The effect of the decisions herein-before cited is to compel the conclusion that the steps admittedly taken are in accordance with the statute and constituted constructive notice to Thomas, and that no other jurisdictional notice was required.

Finally the respondents contend that the motion to vacate the orders may be considered as addressed to the equity powers of the probate court and that the respondent court had jurisdiction to set aside said orders on the ground that extrinsic fraud had been practiced in said proceedings. The probate court has no general equity jurisdiction. Its general jurisdiction is confined to the settlement of the estates of deceased persons. (Burris v. Kennedy, 108 Cal. 331 [41 Pac. 458] ; Estate of Hubbell, 121 Cal. App. 38 [8 Pac. (2d) 530] ; Parkman v. Superior Court, 77 Cal. App. 321 [246 Pac. 334].) It has the power, however, to apply equitable and legal principles in aid of its functions as a probate court. (11a Cal. Jur. 92, 93, and cases cited; see Estate of Eilert, 131 Cal. App. 409 [21 Pac. (2d) 630].) Consequently on a collateral attack the probate court is not vested with power to avoid its own orders or decrees which have become final on the ground that extrinsic fraud has been practiced in obtaining the order or decree. Such power is appropriately vested in a court having general equity jurisdiction. (Estate of Davis, 151 Cal. 318 [86 Pac. 183, 90 Pac. 711, 121 Am. St. Rep. 105] ; Nicholson v. Leatham, 26 Cal. App. 597 [153 Pac. 965, 155 Pac. 98] ; see, also, Aldrich v. Barton, 138 Cal. 220 [71 Pac. 169, 94 Am. St. Rep. 43].) The decision in the case of Estate of Eilert, supra, is not to the contrary. There the probate court did not vacate or set aside any previous order made by it, but merely exercised its equity powers in aid of its probate jurisdiction. The language used in that decision to the effect that the court, in the exercise of its equity jurisdiction, has the power in a proper case to grant relief from a final order or judgment obtained through fraud or mistake, citing supporting cases, must be deemed, as those cited cases disclose, to refer to the relief which may be afforded by a court of equity. The decision in that ease went no further than to approve • the exercise of the equity powers of the probate court in instructing the trustee to commence appropriate proceedings or actions for equitable relief, presumably in accordance with the foregoing statement and supporting cases, and in conserving the assets then subject to its probate jurisdiction for the benefit of the persons entitled thereto, which, in the last analysis, is the appropriate function of the probate court.

The order is annulled.

Waste, C. J., Seawell, J., Spence, J., pro tern., Lang-don, J., and Preston, J., concurred.