Commercial Casualty Insurance v. Industrial Accident Commission
Commercial Casualty Insurance v. Industrial Accident Commission
Concurring Opinion
We concur in the foregoing opinion and judgment. We feel that we are bound by the decision of the Supreme Court in Quong Ham Wah Co. v. Industrial Acc. Com., 184 Cal. 26 [192 P. 1021, 12 A.L.R. 1190], holding invalid the requirement for California residence of an employee injured without the territorial limits of the state. In view of the criticism that opinion has received (see 12 A.L.R. 1207; Tedars v. Savannah River Veneer Co., 202 S.C. 363 [25 S.E.2d 235, 147 A.L.R. 914]; Liggett & Myers Tobacco Co. v. Goslin, 163 Md. 74 [160 A. 804, 807]), and the further fact that for more than 30 years after the Quong Ham Wah decision the Legislature has retained the residential requirement, it seems to us that the point should be reexamined by the Supreme Court or the requirement should be deleted from the law by legislative action.
A petition for a rehearing was denied April 14, 1953, and petitioners’ application for a hearing by the Supreme Court was denied May 21, 1953.
Opinion of the Court
Petition to review an award of the Industrial Accident Commission. Bechtel International Corporation, a corporation, whose main office is in San Francisco, California, had entered into a written agreement with International Bechtel, Inc., a corporation, to engage persons in the United States to work for International Bechtel in Saudi Arabia. The corporation first above mentioned will be referred to as Bechtel, and the other one will be referred to as International. It was stipulated at the hearing before the referee that the applicant, Joseph R. Crawford, was employed by one or both of said corporations and that both corporations were insured by the Commercial Casualty Insurance Company. The insurance company and said two corporations are petitioners herein.
Petitioners contend that the Industrial Accident Commission did not have jurisdiction to make the award. Their argument is that applicant has not been a resident of California and that the contract of employment was not made in California. Section 5305 of the Labor Code provides that the Industrial Accident Commission “has jurisdiction over all controversies arising out of injuries suffered without the territorial limits of this State in those cases where the injured employee is a resident of this State at the time of the injury and the contract of hire was made in this State.” The provision in said section requiring that the employee be a resident of this state has been held to be unconstitutional. (Quong Ham Wah Co. v. Industrial Acc. Com., 184 Cal. 26, 38 [192 P. 1021, 1026-1027, 12 A.L.R. 1190]; Commercial Cas. Ins. Co. v. Industrial Acc. Com., 110 Cal.App.2d 83, 89 [242 P.2d 13, 17].) The question remaining with respect to jurisdiction, is whether the contract was made in California.
On November 7, 1947, the applicant, Mr. Crawford, who then resided in Oklahoma, wrote to the office of Bechtel at Houston, Texas, stating: “I am returning application which I have completed for your consideration . . .. May I state my reason for requesting Foreign Service. ...” He enclosed
On December 16, 1947, Bechtel, in San Francisco, wrote a letter to Mr. Crawford stating: “Your application for assignment as a Clerk on one of our foreign projects has been forwarded to this Department. Since you are being considered for possible assignment we wish to determine whether or not you will be available at such time as a requisition for your classification may be received from the jobsite. Will you therefore kindly fill in the questions appearing below and return this letter at your earliest convenience. Upon receipt of confirmation regarding your availability, we will initiate our verification procedure. ...” The “questions” referred to, as appearing below, were: “I am available for future assignment” and “I have certified proof of citizenship in my possession.” On December 26, 1947, Mr. Crawford wrote the word “Yes” as an answer to each of those questions and affixed his signature thereto, and mailed the document to Bechtel at San Francisco.
On January 6, 1948, Bechtel, from San Francisco, sent a telegram to Mr. Crawford in Oklahoma, as follows: “Please advise collect wire within 24 hours if you are eligible and available possible assignment as section supervisor time and payroll at $500 month no overtime plus board, lodging, medical care .... Also advise if birth certificate or proof of citizenship in your possession. ’ ’
On January 8, 1948, Mr. Crawford, from Oklahoma, sent a telegram to Bechtel at San Francisco, as follows: “Eligible and available for assignment. Birth certificate in my possession. ’ ’
On January 9, 1948, Mr. Crawford, in Oklahoma, received a telegram sent by Bechtel from Houston asking him to telephone to Bechtel at Houston. He telephoned as requested and was informed by Bechtel that all processing documents had been sent from the Houston office of Bechtel to Mr. Crawford in Oklahoma. Thereafter and before January 16th,
One of the documents enclosed with the instructions was a printed blank form (Exhibit H herein) entitled “Bechtel International Corporation. Memorandum of Agreement.” On January 17, 1948, Mr. Crawford, in Oklahoma, signed the memorandum of agreement and mailed it to Bechtel at San Francisco. Also on said date, he filled in the blanks on several of the other documents which were enclosed with the instructions, and he signed, and mailed those documents to Bechtel at San Francisco. Those additional documents pertained to his travel expenses, his fingerprints, his understanding that he would live in temporary quarters at the jobsite, and his possession of an Oklahoma license to drive a motor vehicle.
About February 2, 1948, he signed and mailed to Bechtel at San Francisco a form, furnished by Bechtel, wherein he directed that certain of his earnings be sent to a bank in Oklahoma.
On February 17, 1948, he signed and mailed to Bechtel at San Francisco a printed form entitled “Baggage Statement.”
On February 20,1948, Bechtel at San Francisco telegraphed him at Oklahoma as follows: “You scheduled embark New York February 27. You scheduled depart Tulsa via American Airlines Flight No. 6 at 5:40 p m February 24 arriving New York at 1:25. Ticket paid for this end. Please pickup at Tulsa AAL Office Soonest. Necessary you wire collect when ticket obtained. Upon arrival New York contact Harry Heap. . . . He will have passport, processing documents and foreign transportation. ...”
On February 21, 1948, Mr. Crawford, from Oklahoma, telegraphed Bechtel at San Francisco: “Flight reservation ticket picked up today Depart 24th.”
On February 24th, he left by airplane from Oklahoma and
“To: Bechtel International Corporation, . . . San Francisco 11, California You have entered into a written agreement with International Bechtel, Inc., which latter Company is hereinafter referred to as the “Contractor,” to engage persons in the United States of America who will render service for the Contractor on construction or other work in Saudi Arabia. ... I understand that in signing below I am offering to enter into an Employment Agreement with the Contractor to perform services in Saudi Arabia ... in accordance with the terms and conditions set forth in the attached form of Employment Agreement. ... I understand that upon this Memorandum of Agreement being signed by me and in writing accepted by you at San Francisco, California, it shall become a binding State of California, United States of America Agreement and that the Workmen’s Compénsation Insurance provisions of the California Labor Code shall constitute the exclusive remedy for any injury . . . that I may sustain while this Memorandum of Agreement is in force and effect. . . . This Agreement shall not become effective until it is accepted by you and salary shall not commence until the date inserted in said acceptance.
Signature of Applicant.”
The last paragraph of that memorandum, which is immediately below the line for signature of the applicant, is as follows:
“The services of the applicant whose signature appears*906 above are hereby accepted pursuant to the terms and conditions above set forth and it is agreed that the salary shall commence on the 21st day of February, 1948; it is further agreed that subsistence Per Diem shall commence on the 24th day of February, 1948;
Dated February 25th, 1948
At San Francisco, California.
Bechtel International Corporation
By George M. Wood
Read and Accepted:
Signature of Employee.”
The three dates appearing in said last paragraph, the word “San Francisco,” and the signature “George M. Wood,” had been placed thereon by said Wood at San Francisco. While in New York City, on February 25th, Crawford affixed his signature in the two blank spaces, provided for his signature, on said memorandum of agreement.
Mr. Crawford left New York by airplane on February 27th and arrived in Saudi Arabia on February 29th. On said last mentioned date he signed the “Employment Agreement” which was attached to said “Memorandum of Agreement.” At that time, the controller for International Bechtel also signed the “Employment Agreement.”
The commission found that the contract of employment was entered into in California. The evidence supports that finding. Crawford, while in Oklahoma, signed the Memorandum of Agreement, which was an offer by him to accept employment, and sent it and his employment application to Bechtel at San Francisco. Bechtel acknowledged receipt of those documents. Later, Bechtel asked him by telegram if he was available for assignment and if he had a birth certificate. He replied by telegram in the affirmative. Later, Bechtel, in Houston, sent the “General Instructions for Processing,” and many other documents regarding processing, to him. One of the instructions was that no definite departure time would be given until all papers had been received by the Sam, Francisco office. Bechtel in San Francisco telegraphed him regarding schedule and transportation for the trip, and told him in that telegram to contact a certain person in New York
. Petitioners also contend that the commission’s find
It was in October, 1948, after applicant had been in Arabia about eight months, that he, for the first time, noticed anything wrong with his physical condition. He could not eat. He had gas on his stomach and a form of dysentery. He was confined to his living quarters about five days. About two months later, he had a similar attack which lasted about three days; he had a more severe attack in May, 1949, which lasted about three weeks. On June 7, 1949, he left Arabia and returned to Oklahoma. While he was in Arabia, the temperature in the shade was as follows: in May, 110 to 118 degrees; in October, 105 to 110 degrees; in December, about 34 degrees. During a few days in September and March, when it rained, the atmospheric condition was very humid. Most of their food was sent from the United States. Sometimes the shipments were delayed about six weeks on account of the Palestine war. Sometimes when the food arrived, some of it was discarded because it had deteriorated. Sometimes rats chewed the quarters of beef which were kept in underground compartments. Ferrets were brought in to kill the rats. The company cautioned the employees to not eat outside the mess halls. It is not disputed that applicant had arteriosclerosis before he was employed by petitioners. Dr. Goen of Tulsa, Oklahoma, who examined applicant in July, 1949, reported that his diagnosis of applicant’s condition “is angina pectoris due to coronary artery sclerosis.” He also reported that “It is highly inadvisable for you to attempt to return to Arabia or other overseas jobs because of the climate, heat and arduous living conditions. These
The award is affirmed.
Reference
- Full Case Name
- COMMERCIAL CASUALTY INSURANCE COMPANY v. INDUSTRIAL ACCIDENT COMMISSION and JOSEPH R. CRAWFORD
- Cited By
- 4 cases
- Status
- Published