Calvin v. West Coast Power Co.

• Decision Date: 16 March 1942
• Docket Number: No. Civil 467.,Civil 467.
• Citation: 44 F. Supp. 783
• Parties: CALVIN v. WEST COAST POWER CO. et al.
• Court: U.S. District Court — District of Oregon

44 F. Supp. 783

CALVIN v. WEST COAST POWER CO. et al.

No. Civil 467.

District Court, D. Oregon.

March 16, 1942.

Gus L. Thacker, of Chehalis, Wash., for plaintiff.

James Arthur Powers, of Portland, Or., for defendant West Coast Power Co.

John Reilly, Maguire, Shields, Morrison & Biggs, and A. C. Spencer, Jr., all of Portland, Or., for defendant Alaska Junk Co.

JAMES ALGER FEE, District Judge.

This action is brought by the plaintiff to recover damages for the death of Aaron Calvin.¹ A pre-trial conference was held and a pre-trial order drafted, under which the court will now determine certain questions of fact and law. It is agreed between the parties that the West Coast Power Company² owned and maintained an electric transmission line in the State of Washington which crossed the right of way of an abandoned logging railroad, all of the materials and equipment of which, including railroad rolling stock and tracks, had been purchased by the Alaska Junk Company.³ This company, which was a partnership, contracted with Emil Nyberg for the dismantling and removal of this machinery and equipment. Emil Nyberg and his partners, including Calvin, undertook this work under the contract above mentioned. On October 12, 1937, Calvin was engaged, pursuant to this contract, in moving a donkey engine, which had been loaded onto a freight car, over these tracks. He attempted to lift the transmission line of the power company which was uninsulated over the top of the boiler of the donkey engine and was electrocuted.

The important legal question of liability depends primarily upon the facts of the relationship of Calvin to the other parties and upon the facts of his employment. There was an agreement as to certain matters and evidence was introduced as to others. It was stipulated that at the time of the accident Calvin and the power company were respectively engaged in extra-hazardous work under the definitions contained in the Workmen's Compensation Act of the State of Washington.⁴ It was agreed that Alaska had done nothing to bring that copartnership under the Act.

The contention of plaintiff is that this action can be brought against all defendants because Calvin was a "workman", as defined by the Act and yet he was not protected thereby. A subsidiary claim is that plaintiff is entitled to recover by virtue of a Washington statute relating to death by wrongful act, either adopted by the terms of the Act or irrespective thereof. Alaska contends that its partners were not the employers of Calvin, under the Act, but that he was engaged in the performance of a true independent contract. The power company claims that as it is agreed Calvin was a "workman" engaged in an extra-hazardous occupation, under the Act, and as the power company by virtue of the maintenance of its power line was also engaged in such an occupation,⁵ no action could be maintained against it.

The Act is designed to afford "sure and certain relief" for workmen primarily engaged in "extra-hazardous" employments, therein enumerated, and to abolish resort to other methods of obtaining compensation for such industrial accidents.⁶ Employers under the Act are required under penalty to submit payrolls to an administrative agency and to make payments at specified rates to the fund created thereunder. Benefits for injuries sustained while employed in extra-hazardous occupations are provided thereby⁷ in accordance with a specified schedule.⁸

If Calvin was the employee of Alaska or Nyberg then his beneficiary would be entitled to be paid from the fund, even though the employer had not made reports or contributed thereto.⁹ Further, if under these circumstances Alaska were thus in default, the beneficiary could elect to sue for death of Calvin by the wrongful act of that partnership. The defenses of contributory negligence, fault of fellow servant, and assumption of risk, would not be available to defendants in such an action. If Calvin had been the employee of Nyberg, then, certainly, if Nyberg were not in default, the beneficiary would be entitled to payment from the fund, or upon election, to bring action against Alaska and the power company, unless the party sued were engaged in extra-hazardous employment under the Act.

The salient question, then, is what was the status of Calvin with reference to this Act. Under the evidence, the Court finds that Nyberg negotiated the contract with the idea of associating others with him as partners, and that he carried out that intention by forming the group of which Calvin was one. The formation of a partnership depends upon the intention of the partners. This relation existed up to Calvin's death. It was not altered by the change of terms made by negotiation with representatives of Alaska.¹⁰ Nothing herein indicates an intention to dissolve the partnership which the court has found was in existence. The whole negotiation for this change indicates that each of the Nyberg group had equal rights and authority. The court finds that the claim of the surviving associates that there was an entirely new contract is unfounded and the key testimony upon this feature, false. Nyberg and the persons whom he associated with him became independent contractors.¹¹ The essence of the contract was not the personal labor of Nyberg, Calvin or anyone else.¹² There was no subterfuge involved. It was a contract by which the manner and means of accomplishing the end were disregarded and the ultimate result alone was required.¹³ This may be true, although the times, places and order of delivery of material were at the discretion of the owner of the property.¹⁴ The independent control by Nyberg and his group, of detail and methods was not altered during the life of Calvin.

A person who is himself an employer does not automatically obtain the benefits of the Act for his own protection.¹⁵ But it is provided that any individual employer shall be entitled to the benefits thereof only if the administrative officials of the state shall have received "notice in writing of the fact that such employer is being carried upon the payroll prior to the date of the injury".¹⁶ Each member of the Nyberg group was an employer within the meaning of the statute which provides "* * * employer means any person, body of persons, corporate or otherwise * * * all while engaged in this state in any extra-hazardous work".¹⁷

Calvin as a partner of the Nyberg group was an individual employer under these provisions. He was not automatically entitled to benefits thereunder. The requisite notice was not given to the state officers before the accident, although some payrolls were filed three months prior thereto. There was also an attempt at the instance of Alaska to remedy the defect afterward but this was of no avail. Therefore, he was no more entitled to benefits or subject to disabilities of this legislation than a person who was neither workman nor employer.

Although no formal claim was apparently filed, the Industrial Insurance Commissioner marked on the subsequent payrolls and returns of the Nyberg group a notation that if claim was filed for the death of Calvin, it should be rejected for the reason that deceased member employer of a partnership or corporation in default at the time of his injury and death is not entitled to the benefits of the Act.

This notation may not by reason of its informality be entitled to a presumption of validity usually accorded to administrative action.¹⁸ In any event, it is apparent that no payments will be made from the fund for the death of Calvin.

So far all parties are in agreement as to this feature. The power company indicates that Calvin and plaintiff beneficiary are deprived of benefits because of default of Calvin or his employer, since Calvin and the company were each engaged in extra-hazardous employment. It is also urged that Calvin was a "workman" under the Act, because the essence of the contract was his personal labor and, whether there was an independent contract with Nyberg and associates as partners or whether Calvin was under employment of another, still, the action cannot avail against a corporation engaged in "extra-hazardous" work under the Act, even if the "workman" is not protected by the fund.

If the defendants be considered they are in similar positions according to the interpretation of the facts above set out. Neither was the employer of Calvin. But if Calvin was a "workman" in the employ of Nyberg, his beneficiary would have the election "whether to take under this act"¹⁹ or to bring suit against one or both the defendants.

It is true a provision of the Act closely interwoven textually with the clauses giving right of suit against a third person reads: "Provided, however, That no action may be brought against any employer or any workman under this act as a third person²⁰ if at the time of the accident such employer or such workman was in the course of any extra-hazardous employment under this act." This proviso was added in order to grant "a reciprocal compensation to industry for the burden it assumes as an aggregate unit"²¹ in providing protection to each "workman". But this does not mean that an employer who is not amenable to the Act or a contributor to the accident fund, even though at the time engaged in extra-hazardous employment may not be sued by a "workman" employed by another.²² Nor does it prevent suit by a "workman" in an extra-hazardous employment of another against one who carries on an extra-hazardous employment generally, but who in the particular act which caused the injury was not in the course of extra-hazardous employment.²³ Indeed, the rights of action conferred by this section are purely statutory and not common law rights of action.²⁴ The power company was entitled to no reciprocal compensation by way of immunity from suit by the beneficiary of Calvin if it be assumed plaintiff could receive no benefits under the Act.

The court has determined that Alaska was not the employer of...