Devins v. Hong

FORD, J. The question presented is whether the trial court erred in rendering a summary judgment in favor of the defendant Hong pursuant to its determination that there was no issue of fact to be tried as between the plaintiff and that defendant. For reasons which will be stated we have reached the conclusion that the judgment must be reversed.

In his complaint the plaintiff Devins alleged that he sustained personal injuries while riding as a passenger for consideration in an automobile driven by the defendant Hong which collided with an automobile operated by the defendant Hopper. He further alleged that the negligence of the defendants proximately caused his injuries. In addition to a denial of those allegations, the defendant Hong pleaded several defenses, one of which was as follows: “This action is barred in that as to this answering defendant, the court lacks jurisdiction, this matter properly falling within the jurisdiction of the Industrial Accident Commission.” Another defense was stated in the following language: “That plaintiff is barred from recovery herein by the provisions of Vehicle Code section 17158. ”1

In the notice of the defendant Hong’s motion for summary judgment it was stated in part: “Said motion will be made upon the ground that there is no triable issue of fact in this action as to said defendant and that as a matter of law the Superior Court has no jurisdiction over the subject matter herein.” The points and authorities filed in support of the motion were directed solely to the defense that jurisdiction to grant relief was exclusively in the Industrial Accident Commission because of the plaintiff’s status as Hong’s employee. (See Scott v. Industrial Acc. Com., 46 Cal.2d 76, 83 [293 P.2d 18].)

[28]As the factual basis for the motion the moving defendant Hong relied upon testimony of the plaintiff embodied in his deposition and upon Hong’s brief declaration. That declaration was in part as follows: “At the time of the accident ... I was engaged in the contracting business which involved painting work and the making of screens. ... I always considered him [the plaintiff Devins] as an employee rather than as an independent contractor. I paid him $18.00 a day and from his pay checks I would take out With-holdings and Social Security. I supplied the paint and material for his work and generally directed him in his work. I laid him off in late 1960, but hired him again on July 4, 1961. He worked for us for four days prior to the accident on July 8, 1961. . . . On the morning of the accident I picked plaintiff up at his home and was driving him to the job site at the time the accident occurred. I often drove him to the job site.