Arthun v. City of Seattle

• Decision Date: 08 January 1926
• Docket Number: 19393.
• Citation: Arthun v. City of Seattle, 137 Wash. 228, 242 P. 16 (Wash. 1926)
• Parties: ARTHUN v. CITY OF SEATTLE.
• Court: Washington Supreme Court

242 P. 16

137 Wash. 228

ARTHUN v. CITY OF SEATTLE.

No. 19393.

Supreme Court of Washington

January 8, 1926

Department 2.

Appeal from Superior Court, King County; Gilliam, Judge.

Action by Christ Arthun against the City of Seattle.Judgment for plaintiff, and defendant appeals.Affirmed.

Thomas J. L. Kennedy and J. Ambler Newton, both of Seattle, for appellant.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

MITCHELL J.

Christ Arthun, while engaged in the performance of work as a laborer for Grant Smith & Co., a contractor, in the laying of a line of pipe in and along Beacon avenue in the city of Seattle was struck and injured by an automobile bus operated by the city in connection with its street car system.He sued the city, charging it with negligence, and recovered a verdict and judgment, from which the city has appealed.

The first assignment of error is that the respondent failed to make his election to sue the city in advance of suit, as required by the Workmen's Compensation Act, and thereby lost his right to sue the city.The contention, we think presents an erroneous view of the law.The portion of the Workmen's Compensation Act directly involved is a part of section 7675, Rem.Comp. Stat., as follows:

'Workman means every person in this state, who is engaged in the employment of an employer coming under this act whether by way of manual labor or otherwise, and whether upon the premises or at the plant or, he being in the course of his employment, away from the plant of his employer Provided, however, that if the injury to a workman occurring away from the plant of his employer, is due to the negligence or wrong of another not in the same employ, the injured workman, or if death result from the injury, his widow, children or dependents, as the case may be, shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit under this section; and if he take under this act, the cause of action against such other shall be assigned to the state for the benefit of the accident fund; if the other choice is made, the accident fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected, and the compensation provided or estimated by this act for such case.Any such cause of action assigned to the state may be prosecuted, or compromised by the department, in its discretion.Any compromise by the workman of any such suit, which would leave a deficiency to be made good out of the accident fund, may be made only with the written approval of the department.'

The injury to the respondent was caused by the alleged negligence of another not in the same employ, creating the right of a common-law action against the wrongdoer, unless there is something in the Workmen's Compensation Act which directly or by necessary implication is in derogation of that right.By common consent that understanding of a statute which restricts or limits a common-law right must not be entertained, if possible to be avoided.For the moment leaving out of consideration that portion of the act hereinbefore quoted, our attention has not been called to any provision of the act, nor do we find any, under which it is or can be claimed that there has been any purpose or attempt to limit, modify, or cancel the common-law liability of a third party because of his tortious injury of a workman.The law does him no harm, nor does it purport to help or relieve him.He contributes nothing to the fund it provides for, nor does he make any report to the commission that administers it.He is entirely without the scope of all its benefits.

Nor is there anything to the contrary in that part of the act already quoted.In the situation therein mentioned the party entitled to recover shall 'elect whether to take under the act or seek a remedy against such other.'The first is a new remedy given by the act; the other is not, nor does it purport to be, a new remedy, but simply a recognition of the right of a common-law action.If he takes the first, his cause of action against the third party shall be assigned by him to the state for the benefit of the accident fund, which cause of action may be prosecuted or compromised by the department at its discretion.If the other choice is made--suit against the third party--the accident fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected and the compensation provided or estimated by the act for such a case.It is further provided that any compromise by the workman with the one causing the injury which would leave a deficiency to be made good out of the accident fund 'may be made only with the written approval of the department.'

The election spoken of is in protection of the state because of its assurance, and is in precise harmony with the declared policy of the Workmen's Compensation Act, found in section 1(Comp. St. § 7673), that 'the remedy of the workman has been uncertain, slow, and inadequate,' and that the state, exercising its police and sovereign power, declares: 'Sure and certain relief for workmen, injured in extrahazardous work, and their families and dependents is hereby provided,' etc.Accordingly, if an injured workman, or his widow, children, or dependents in case of his death, exercising the choice given by the statute, sue the third party, without prior notice of election, and recover nothing, or upon recovery and the actual collection of less than the compensation provided or estimated by the act for such case, and then attempt to still further collect from the accident fund, the state would be heard attentively if it insisted there could be no recovery, if there had been a failure to elect prior to the commencement of the action against the third party.It is for the benefit of the state, in administering the accident fund, that provision is made for election to be in advance of any suit under this section, and not at all for the benefit of the third party, who is at all times suable as at common law by the injured party, or the state as assignee of the injured party.

In the case of Lester v. Otis Elevator Co.,169 A.D. 613, 155 N.Y.S. 524, cited with approval bythe Court of Appeals of New York in Rosebrock v. General Electric Co.,236 N.Y. 227, 140 N.E. 571, the Appellate Division of the Supreme Court considered a case very similar to the present one, both as to the law and controlling facts, holding that the plaintiff was entitled to maintain a suit against the third party without prior notice of election.The logic of that case is applicable here.The opinion states:

'The appeal presents a single question, and that is whether, under the Workmen's Compensation Law(Consol Laws, c. 67;chapter 816,Laws 1913, as re-enacted by chapter 41,Laws 1914), the plaintiff could maintain the action without alleging and proving his election to do so, pursuant to section 29 of that act.The Workmen's Compensation Law provides a fixed schedule of the rates of compensation to be paid by employers to employés injured in the course of certain hazardous employments, irrespective of the fault occasioning the injury, and establishes a commission to administer the statute and make awards.Employers are required to secure the

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