Barclay v. Puget Sound Lumber Co.

• Decision Date: 15 January 1908
• Citation: 93 P. 430,48 Wash. 241
• Parties: BARCLAY v. PUGET SOUND LUMBER CO.
• Court: Washington Supreme Court

93 P. 430

48 Wash. 241

BARCLAY v. PUGET SOUND LUMBER CO.

Supreme Court of Washington

January 15, 1908

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Andrew Barclay against the Puget Sound Lumber Company. From a judgment for plaintiff, defendant appeals. Remanded with directions.

F. D Oakley, for appellant.

Govnor Teats, for respondent.

FULLERTON J.

The respondent, while employed in the appellant's mill, cut his hand on one of the saws of a lath trimmer on which he was working, and brought this action to recover damages therefor. He based his cause of action on the contention that the saw on which he was injured was not guarded as required by the factory act. On the trial the jury returned a verdict in his favor, assessing his damages in the sum of $5,000. From the judgment entered on the verdict, this appeal is taken.

The first assignment is that the court erred in overruling the demurrer to the complaint. The third and fourth paragraphs of the complaint were as follows:

'(3) That on the 6th day of February, 1906, the said defendant was operating the said lathmill by and through a certain contract made by said defendant with one Robert S. Tillman, at 75 cents per 1,000 lath produced, wherein the said Robert S. Tillman was to employ the other men at work in said lathmill, and the said defendant was to pay the said employés so employed by the said Tillman out of the said 75 cents per 1,000 any and all wages due them in the operation of the said lathmill, and the said Tillman, in consideration of his employment, was to receive the balance and residue, if any, computing at the rate of 75 cents per 1,000 lath produced.

'(4) That on the 6th day of February, 1906, the plaintiff herein was employed to work in defendant's said lathmill by the said Robert S. Tillman, under and by virtue of said Tillman's contract with the said defendant as herein set out, and while at work in the said defendant's lathmill on said 6th day of February, 1906, in the operation of the same, pulling, tying, and trimming the lath at the trimmer saw,' etc., he was injured.

It is the appellant's claim that the facts alleged show Tillman to have been an independent contractor conducting an independent enterprise; that the relation of master and servant existed between the respondent and Tillman, and not between the respondent and the appellant; and that in consequence the duty to guard the machinery devolved upon Tillman, the immediate employer, and was not a duty imposed upon it as between itself and Tilman's employer. But we cannot concede that this result follows from the facts pleaded. Tillman's relation to the appellant was rather that of an agent than that of an independent contractor. The appellant did not lease or surrender to him the management or control of this department of its mill. It surrendered only the right to employ the persons needed to carry on the work. It still retained control as to the manner and mode of doing the work, and control over the workmen employed by Tillman. This, as we say, did not make Tillman an independent contractor. He was but the agent of the appellant, acting in this regard for and on its behalf. Under a similar state of facts, the court, in Nyback v. Champagne Lumber Co., 109 F. 732, 48 C. C. A. 632, used the following language: 'The defendant here was engaged in the general operation of its own mill. Owning the mill and machinery, it had possession, and, in a general sense, control, of all operations and work carried on. The slasher belonged to the defendant, and its sole use was to cut slabs and other like material belonging to the defendant into proper lengths for shingles, lath, and pickets, which, when cut, should belong to the defendant. The burden of keeping that machine in running order, the expense of oiling and repairing, remained with the defendant. The power to run it and the light to light it the defendant furnished; but it contracted with Barber to do the manual work necessary to operate the machine in cutting the material so furnished, giving him no authority to use it upon other material of his own, or for anybody other than the defendant, and for the doing of this manual work upon the defendant's machine and material, as directed by the defendant, the defendant agreed to pay him a price measured by the product. While nominally Barber was to employ and pay for such assistance as he needed, the wages of the helpers were paid by the defendant, and deducted from the amount, which otherwise should have been due to Barber. Without undertaking to lay down lines for the decision of other cases, we have no desitation in saying that upon the facts stated, and as they appear in this record, Barber was not an independent contractor, but a servant of the defendant, put in charge of a particular machine upon the terms stated to operate it for the defendant, and that whatever duty there was to notify an inexperienced person engaged to work upon or about it of the dangers incident to the employment remained a duty of the defendant.' See, also, Ziebell v. Eclipse Lumber Co., 33 Wash. 591, 74 P. 680; Johnson v. Spear, 76 Mich. 139, 42 N.W. 1092, 15 Am. St. Rep. 298.

The appellant next argues that the evidence was insufficient to justify a finding on the part of the jury that the saw was not properly guarded, or could have been guarded in such a manner as to protect against injuries such as the respondent suffered and not seriously interfere with its practical operation. On these questions there was a substantial conflict in the evidence. Indeed the record shows that these were the principal questions of fact in dispute in the court below, and that the greater number of witnesses called on each side were called to establish or disprove one or the other of these propositions. Under these circumstances the questions were for the jury. As was said by us in Rector v. Bryant Lumber, etc., Co., 41 Wash. 556, 84 P. 7 'Doubtless many cases will arise in which the court can say, as a matter of law, from the location of the machinery and the uses to which it is applied, that it can or cannot be advantageously guarded; but between these extremes there will necessarily arise a large class of cases where the question will be solely one of fact. The statute does not attempt to specify the particular machinery that shall be guarded, but declares that all machinery of a certain class...