Chakmakjian v. Lowe

DORAN, J.

The present appeal is from a special, order made' after a judgment. in favor of plaintiff, an injured employee, denying the employer’s motion to satisfy the judgment. The basis of' such motion was that the uninsured employer (appellant) had fully paid to the employee the amount of . an award by the Industrial Accident Commission which was in excess of the judgment for damages rendered by the. superior court. Appellant contends that “By the use of the two concurrent remedies, the employee seeks to obtain for the one injury a double recovery.”

The accident in question occurred November 10,1945 during plaintiff’s employment. The present action was filed December 6, 1945, under provisions of sections 3706, 3707 of the Labor Code, permitting such an action against an uninsured employer. On July 22, 1946, judgment was entered for the respondent employee in the sum of $2,250 and $112.50 costs. On appeal, this judgment was affirmed by the Supreme Court in 33 Cal.2d 308.

After filing the action for damages in superior court, respondent employee on May 9, 1946 filed a claim before the Industrial Accident Commission, but requested that no hearing thereon be had until the superior court action was determined. On June' 5, 1947 the Industrial Accident Commission awarded the employee $2,890 and $350 attorney fee. The finding and award recite that “The applicant has received $2,250.00 plus costs of $112.20"'in a parallel-negligence action against: the uninsured employer herein, which matter is pending on appeal.” It was further found that “The defendant (appellant herein) was wilfully uninsured.” This .award was paid by appellant and formed the basis for the motion to satisfy the judgment for damages which was denied'' by the trial court in the order now appealed from.

[331]

Appellant cites section 21 of article XX of the California Constitution authorizing enactment of a Workmen’s Compensation Act, which section, it is said, “denounces double recoveries for injuries suffered”; this language, however, is that of appellant and is not used in said section. Also referred to is section 3709 of the Labor Code which provides that where a judgment is obtained against the employer in excess of the compensation award, payment of the award may be credited on the judgment. Such, however, is not the situation here for the award was in excess of the judgment obtained in superior court. The section makes no provision for credit in such a case. It is to be noted that appellant does not question “the right of the employee to take the concurrent remedies,” and “No question is raised as to the validity of the award of the Commission or of the Court as separately considered.”