Evans v. Los Angeles Railway Corp.

THE COURT.

Plaintiff, a fireman employed by the City of Los Angeles, was injured in the line of duty by reason of the negligence of defendant’s employees operating a street-car. He was incapacitated, but under the terms of a city ordinance his full salary of $200 a month was paid. Medical and hospital treatment was also furnished him by the city. Plaintiff made no claim for compensation under the Workmen’s Compensation Act, but brought an action

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for damages against defendant Los Angeles Railway Corporation. The city intervened, seeking a lien upon any judgment for sums paid to plaintiff, and also seeking recovery against defendant for any future liability to plaintiff under the Compensation Act. An offer of settlement was made by defendant and accepted by both plaintiff and intervener. The sum of $3,500 was thereupon deposited in court, and releases executed and delivered to defendant. The trial court then entered judgment in favor of the city in the amount of $778.14, the amount it had already paid to plaintiff, and in favor of plaintiff for the balance. It was provided, however, that the said balance should not be paid to plaintiff until he released the city from any future liability. Plaintiff appealed.

The theory of the city is that upon injury to plaintiff in the course of his employment it incurred liability under the Workmen’s Compensation Act; that the continuance of the full salary of plaintiff during the period of his disability constituted in part a payment of compensation under the said act; and that under section 26 thereof the city as an employer was entitled to reimbursement for its expenditures out of any recovery from a third party tortfeasor. Plaintiff argues that the city is not entitled to reimbursement because there was, in fact, no payment of compensation as required by the Workmen’s Compensation Act; that the payment was by virtue of a city ordinance providing that every officer or member of the fire department injured in the line of duty should receive his full salary while incapacitated. Section 3, subdivision 3, of the Compensation Act provides that the term “compensation” means “compensation under the act”. It therefore follows, according to plaintiff, that such payment cannot be considered as having been made on account of compensation under the act, and that in order for the city to justify its claim to part of the judgment it would be necessary for it to show two distinct payments: the full salary under the ordinance and an additional sum as compensation. Language in