D'Amico v. Conguista, 29674.

• Decision Date: 19 March 1946
• Docket Number: 29674.
• Citation: 167 P.2d 157,24 Wn.2d 674
• Court: Washington Supreme Court
• Parties: D'AMICO v. CONGUISTA et al.

167 P.2d 157

24 Wn.2d 674

D'AMICO v. CONGUISTA et al.

No. 29674.

Supreme Court of Washington, En Banc.

March 19, 1946

Rehearing Denied May 3, 1946.

Action by Mary D'Amico, as administratrix of the estate of Joseph D'Amico, deceased, and by Mary D'Amico personally against Joe Conguista and D. Coluccio, copartners and each of them, doing business as Superior Construction Company, and others to recover for the benefit of plaintiff and her two minor children for the wrongful death of decedent. Judgment for plaintiff, and defendants appeal.

Affirmed.

JEFFERS STEINERT and ROBINSON, JJ., dissenting.

Appeal from Superior Court, King County; Howard M. Findley, judge.

Eggerman Rosling & Williams, of Seattle, for appellants.

P. O D. Vedova, Padden & Moriarity, and James Kelleher, all of Seattle, for respondent.

SIMPSON Justice.

Plaintiff brought this action as administratrix of the estate of her deceased husband, Joseph D'Amico, for her own benefit and that of the two minor children of herself and Joseph D'Amico. The complaint alleged that the death of D'Amico was caused by the negligence of defendants. The charged of negligence are as follows:

(1) That the operator of a truck owned by defendants, and, at the time of the accident being operated by an agent and servant of defendants, on defendants' business, was so operated at an excessive rate of speed.

(2) That the operator of the truck was incompetent and unfit to operate the truck.

(3) That the truck, and especially the wheels thereon and the axles connected therewith, was in a defective condition, which defective condition, in connection with the manner of operation, resulted in a wheel becoming disengaged from the truck, rolling into and striking Joseph D'Amico as he was standing near the northwest corner of Airport Way and Walker street, in Seattle.

The answer contained a general denial of the charges of negligence, and then admitted that the death of D'Amico was caused by a wheel from defendants' truck. As an affirmative defense, defendants alleged that, at the time and place of the accident, D'Amico was engaged in extrahazardous employment and was in the course of his employment; that defendants were likewise engaged in the course of extrahazardous employment, all within the meaning of the Workmen's Compensation Act of the state of Washington. That, by the provisions of the act, plaintiff's exclusive remedy was against the insurance fund established by law. The reply put in issue the charges made in the affirmative answer.

The case tried to the court, sitting with a jury, resulted in a verdict in favor of plaintiff. After denying a motion for a judgment n.o.v. or, in the alternative, for a new trial, the court entered judgment upon the verdict. Defendants have appealed. Their assignments of error are: Denial of appellants' motion for a directed verdict; the denial of appellants' motion for a judgment n.o.v. or, in the alternative, for a new trial; the entry of judgment on the verdict; the giving of instructions Nos. 7, 11 and 13; and the refusal to give defendants proposed instruction No. 2.

The material facts relative to the questions present in this case are: Appellants, at the time of the accident, were engaged in extrahazardous work, and the truck owned and operated by them was used in that work. Appellants paid into the accident and medical aid funds the amounts required by the Workmen's Compensation Act for the months of April and May, 1944. The Malaspino Company, D'Amico's employer at the time of the accident, was also engaged in extrahazardous work, and had paid into the accident and medical aid funds the amount required up to the date of the accident. D'Amico was, as such employee, engaged in extrahazardous work.

The accident happened May 11, 1944, at approximately 12:25 p. m., while D'Amico was standing in the sidewalk area near the northwest corner of Airport Way and Walker street, in the city of Seattle. Airport Way runs north and south, having a width from curb to curb of 58 feet. Walker street extends to the west of Airport Way, and is 42 feet wide. For sometime prior to the day of the accident, D'Amico's employer had been engaged in laying a water main along the parking strip on the west side of Airport Way north of Walker street, in which work D'Amico and other workmen were engaged. When the workmen came to Walker street it became necessary to break the pavement Before a ditch could be dug to lay the main.

On the day of the accident, D'Amico was engaged in breaking this pavement, and, at the time the noon rest period arrived, the crew was working in the center of Walker street. The power to operate the drill used by D'Amico came from a compressor which was located immediately to the north of Walker street near the west curb on Airport Way. The compressor continued to operate during the noon hour and made considerable noise. When work ceased at noon on the day in question, D'Amico and some of his fellow employees went to the parking strip immediately north of Walker street to eat their lunches. At that time, they were approximately 40 or 50 feet away from the place where they had been working. The men customarily brought their lunches, which were eaten near the place where they worked, as it was not practicable for them to go home during the thirty minutes allowed for the noon rest period.

The evidence shows that D'Amico consumed about twenty or twenty-five minutes in eating his lunch, after which he walked to the west curb line on Airport Way near where the compressor was located, and it was while he was at that place, either standing on or just off the curb, that he was struck by a wheel which became disengaged from appellants' truck, and received the injury which resulted in his death. The place where he had been standing was about 10 or 15 feet from where he had been working.

It is conceded that D'Amico worked by the hour and that his employer had no control over him during the noon rest period. It is also admitted that he worked on eight hour shifts, from 8 to 12, and from 12:30 to 4:30, and that he was not paid for the thirty minutes allowed for lunch. In addition, it is conceded that no money was paid to the Washington compensation fund for the noon hour period.

The first question for consideration is whether D'Amico, at the time he was injured, was working in the course of his employment so as to bring him within the provisions of the Workmen's Compensation Act. If D'Amico was a workman, as that term is defined by our statute, at the time he was injured, his administratrix cannot maintain this action. The applicable statutes, Rem.Rev.Stat. (Sup.) § 7675, provides:

'Except when otherwise expressly stated, employer means any person, body of persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all while engaged in this state in any extra-hazardous work, by way of trade or business, or who contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen, in extra-hazardous work.

'Workman means every person in this state, who is engaged in the employment of any employer coming under this act whether by way of manual labor or otherwise, in the course of his employment: * * * Provided, however, That no action may be brought against any employer or any workman under this act as a third person if at the time of the accident such employer or such workman was in the course of any extra-hazardous employment under this act.'

Rem.Supp.1941, § 7679: 'Each workman who shall be injured in the course of his employment, or his family or dependents in case of death of the workman, shall receive out of the accident fund compensation in accordance with the following schedule, and, except as in this Act otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever.'

It is appellants' contention that at the time he was injured, D'Amico had not entered upon a wholly separate and distinct undertaking for his own account, but was standing at his place of work waiting for the whistle to blow, and was in the course of his employment during the noon rest period, within the meaning of the Workmen's Compensation Act.

On the other hand, respondent takes the position that D'Amico was not injured while in the course of his employment in that he was not at his place of work. He was not injured while he was working, but was injured while on his own time when he was free to go where he pleased, and at a time when his employer had no control over him. Further, that he was not being paid for the half-hour period which included the time of his injury, that no assessment was being paid by his employer to the industrial fund for this half-hour, and that he was not engaged in any act pertaining to his work, but was simply satisfying his own curiosity by observing and watching the working of a piece of machinery (the compressor), with which he had no connection either during the working time or during the rest period.

Under our Workmen's Compensation Act definite conditions must exist at the time of an injury in order to entitle one to the benefits of the act. First, the relationship of employer and employee must exist between the injured person and his employer (except in some cases where the injured person is an independent contractor); second, the injured person must be in the course of his employment; third, that the employee must be in the actual performance of the duties required by the contract of employment; and fourth, the work being done must be such as to require payment of industrial insurance premiums or assessments.

Referring to the first condition, it should be said that the...