Delthony v. Standard Furniture Co.

• Decision Date: 24 March 1922
• Docket Number: 16944.
• Citation: 119 Wash. 298,205 P. 379
• Court: Washington Supreme Court
• Parties: DELTHONY v. STANDARD FURNITURE CO.

205 P. 379

119 Wash. 298

DELTHONY v. STANDARD FURNITURE CO.

No. 16944.

Supreme Court of Washington

March 24, 1922

Department 2.

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by Anthony Delthony against the Standard Furniture Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

Walter G. Kienstra, of Seattle, for appellant.

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

MAIN J.

The plaintiffs brought this action to recover for personal injuries for which he claimed the defendant should respond in damages. At the conclusion of his case the defendant challenged the legal sufficiency of the evidence, and moved for a directed verdict. This motion was sustained, and a judgment entered, dismissing the action from which the plaintiff appeals.

The respondent conducts a general retail furniture business in the city of Seattle, occupying a seven-story building at the corner of Second avenue and Pike streets. The appellant was employed as an electrician and general maintenance man about the building. On April 5, 1909, while he was in the performance of his duties and near a boiler which was installed in the basement of the building, he was seriously injured by the explosion of the boiler. After the injury he filed a claim with the Industrial Insurance Commission, and as compensation for the injuries which he sustained was awarded and received the sum of $777. Notwithstanding this award, the appellant claims the right to recover in this action against the respondents, and founds his claim upon section 3473 of Pierce's Code, which provides, among other things, that----

If injury to a workman results from 'deliberate intention of his employer to produce such injury, or death, the workman, * * * shall have the privilege to take under this act, and also have cause of action against the employer.'

It will be noticed that before the appellant would be entitled to recover it would be necessary for him to allege and prove that his injury was the result of a deliberate intention of the respondent to injure him. There is no evidence in the record showing, or tending to show, any such deliberate intention. It may be admitted that, if the question were one as to whether the respondent was negligent in the manner in which it maintained the boiler, the case would present a question for the jury. The appellant contends that, if the respondent knew of the dangerous and unsafe condition of the boiler, and knowing this...