Opinion
Rehearing Granted May 13, 1931
Appeal from Superior Court, Los Angeles County; Harry R. Archbald, Judge.
Action by William T. Evans against the Los Angeles Railway Corporation, in which the City of Los Angeles intervened. From the part of the judgment for the intervener, plaintiff appeals.
Reversed, with directions.
COUNSEL
George W. Rochester and Howard T. James, both of Los Angeles, for appellant.
Erwin P. Werner, City Atty., Willis L. Grafton, and Arthur W. Nordstrom, Deputy City Attys., all of Los Angeles, for respondent.
OPINION
CRAIG, J.
The respondent intervened in an action for damages instituted against the Los Angeles Railway Corporation by one of respondent’s firemen. Judgment was rendered in favor of the plaintiff and in favor of the intervener for a portion of the proceeds thereof. The plaintiff appealed.
The appellant was injured by collision of one of the defendant’s street cars with a fire truck upon which he was riding, in his regular line of duty. While receiving his usual salary, he brought suit against the defendant for damages. The municipality intervened, alleging that, by reason of his employment and injury, it "became liable under the provisions of said Workmen’s Compensation, Insurance and Safety Act," was required to expend moneys for his treatment and salary, and would be compelled to continue his weekly "compensation," that none of said sums had been repaid, and judgment was prayed for all amounts so expended and to be expended. The trial court adjudged a portion of the plaintiff’s judgment due to the intervener and such further sums as it might thereafter be required to pay to the plaintiff as compensation under the provisions of the Workmen’s Compensation, Insurance and Safety Act, and impounded the whole amount for a period of 245 weeks, unless the intervener’s liability for such disability be released.
Appellant had made no claim for compensation under the provisions of said act, nor does the record support the contention that any amount received by him from the city of Los Angeles was so paid. Section 11 of an ordinance of said city expressly provides that: "Any officer or member of said fire department injured or contracting sickness in the line of duty, shall receive his full salary until such time as a physician, appointed by the city or the fire commission, certifies that he is able to return to duty, or is granted a pension." Appellant was not so certified. Subdivision 3, section 3, of the Compensation Act (St.1917, p. 833, as amended by St.1919, p. 911), in defining its pertinent terms, recites: "The term ‘compensation’ means compensation under this act and includes every benefit or payment conferred by sections six to thirty-one, inclusive, of this act upon an injured employee. ***" Section 26 of the act as amended by St.1927, p. 1213, provides in part: "The claim of an employee for compensation shall not affect his right of action for damages arising out of injury or death against any person other than the employer; and any employer having paid, or having become obligated to pay compensation, may likewise bring an action against such other person to recover said damages. *** The court shall, on application, allow as a first lien against any judgment recovered by the employee the amount of the employer’s expenditures for compensation." From this it readily appears that appellant was not paid by the respondent city "under this act" a "benefit or payment conferred by sections six to thirty-one," but rather pursuant to express mandate of its governing legislation applicable to such cases. This question was decided upon an application for a writ of mandamus to compel the payment of a fireman’s salary during disability in Jackson v. Wilde, 52 Cal.App. 259, 198 P. 822, 825, wherein this court said:
"Moreover, appellants’ contention is based upon the erroneous assumption that if plaintiff receive pay for the time he was away on sick leave he will thereby be receiving compensation for ‘injury,’ within the meaning of the Workmen’s Compensation Law. Plaintiff was not employed by the day, nor did he contract for or receive a per diem compensation. He was appointed for an indefinite period, at a fixed monthly salary. His compensation, provided, we assume, by ordinance duly adopted by the common council, was annexed to or was an incident of his office or employment. So long as he continues to fill the office of fireman he is entitled to the full amount of his monthly salary, regardless of any temporary absence from duty, save, of course, in so far as the ordinance in question contemplates that he shall not receive full pay if he be absent from duty without a leave of absence on account of sickness or disability contracted in the line of duty. It is well settled that a person holding a public office has a prima facie right to the salary thereof, although he be physically disabled from performing his duties; and if there be no law or regulation authorizing the discontinuance of the compensation during the disability, the only remedy is his removal. His right to compensation is not by virtue of contract, express or implied, but exists, when it exists at all, as a creature of law and as an incident to the office. *** As said in [People ex rel.] Stratton v. Oulton, supra, [ 28 Cal. 44], the salary ‘is incident to the title to the office and not to its occupation or exercise.’ ***
"Ordinance No. 4979 contemplates the performance of services by a fireman only during such times as he is not incapacitated for duty by reason of sickness or disability. The monthly salary that goes with the office is a fireman’s compensation for the services that are contemplated by the ordinance. The salary is not compensation for anything other than the services that are within the purview of the ordinance. In no sense, therefore, can a fireman’s fixed monthly salary be regarded as compensation for ‘injury,’ within the meaning of the Workmen’s Compensation Act, even though it be pay for a period of time during a part of which he may have been absent on sick leave."
It is manifest in the instant case that there is not only a plain distinction between "compensation" under the provisions and for the purposes contemplated by the Workmen’s Compensation, Insurance and Safety Act and "compensation" flowing as an emolument, but that there is no rule either express or impliable from these enactments which authorizes a municipality to reimburse itself for loss of services from the personal funds of an employee.
The judgment is reversed, with directions that judgment be entered in accordance with the views herein expressed.
We concur: WORKS, P.J.; IRA F. THOMPSON, J.