Denning v. Quist

• Decision Date: 27 February 1933
• Docket Number: 24048.
• Citation: 19 P.2d 656,172 Wash. 83
• Parties: DENNING v. QUIST et al.
• Court: Washington Supreme Court

19 P.2d 656

172 Wash. 83

DENNING v. QUIST et al.

No. 24048.

Supreme Court of Washington, En Banc.

February 27, 1933

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

Action by Ernest C. Denning against Alarik W. Quist and another. From a judgment dismissing the action, plaintiff appeals.

Reversed with instruction.

See also, 160 Wash. 681, 296 P. 145.

PARKER MAIN, and MITCHELL, JJ., dissenting.

,William Martin, of Seattle, for appellant.

Eggerman & Rosling and W. S. Greathouse, all of Seattle, for respondent.

HOLCOMB Justice.

Appellant commenced this action in the lower court to recover damages on account of the alleged negligence of respondents, the husbands, who henceforth will be mentioned as if the only respondents. Appellant alleged in his complaint, in so far as is here material:

'That at all times hereinafter mentioned, and particularly on or about the 9th day of May, 1929, the said defendants A. W. Quist and A. S. Downey were the general contractors doing business under the said firm name of A. W. Quist Company in the construction and building of an addition to the St. Johns Hospital at Port Townsend, Washington, several stories in height, and, for the purpose of constructing and building said addition, said co-partnership defendants erected, owned and operated an elevator or hoist at said new addition for the purpose of raising and lowering material used by said defendants and their subcontractors in the construction of said building.

'That Ne Page McKenny Company, a corporation, had a subcontract under the defendants to construct and install the electric wiring for said building.

'That on or about the 9th day of May, 1929, the plaintiff was a servant of the said Ne Page McKenny Company and was working upon said building installing the electric wiring therein. That the said defendants hoisted upon said elevator a quantity of material to be used in installing electric wiring in said building to the second floor thereof for the use of the plaintiff, and the plaintiff went upon said elevator to remove said material and, as he stepped upon the same, the cable used by the said defendants in hoisting and lowering said elevator gave way, broke, and allowed the said elevator with the plaintiff thereon to suddenly and violently fall to the bottom of the said elevator shaft, damaging and injuring the plaintiff in the manner and to the extent hereinafter alleged, all of which damages and injuries were due to and caused by the carelessness and negligence of the defendants, their servants, agents and employees as hereinafter set forth.'

Respondents demurred to the complaint, claiming its insufficiency in stating a cause of action, and also challenging the jurisdiction of the court. This demurrer being overruled, they answered to the merits and affirmatively pleaded facts showing appellant to have been engaged in extrahazardous employment at the time he was injured, and that his employer, Ne Page McKenny Company, the subcontractor, and also respondents, the general contractors engaged in the construction of the building, were thereby also engaged in the same extrahazardous work in which appellant was engaged. The affirmative facts, so pleaded, were essentially the same that appeared in the above-quoted language of the complaint. Upon the pleadings so framed the cause was tried.

When appellant was about to introduce evidence in his behalf, respondents again orally challenged the sufficiency of the complaint in stating a cause of action, and also challenged the jurisdiction of the court and moved that the action be dismissed upon substantially the ground that the allegations of the complaint showed appellant to have been engaged in extrahazardous employment at the time he was injured, and that his employer, and respondents, the general contractors engaged in the construction of the building, were all thereby engaged in the same extrahazardous work, because of which appellant had no right to recover against respondents, but should seek relief, if entitled to any, against the state workmen's compensation fund. After argument, the trial court sustained these challenges and motion, and rendered its judgment that the action be dismissed with prejudice, from which judgment Denning has appealed.

In section 2, chapter 74, p. 346, Laws of 1911, as amended (Rem. Rev. Stat. § 7674), 'buildings being constructed' is stated to be an extrahazardous work. This has remained the law up to the present time. Hence it is plain by the allegations of appellant's complaint that when he was injured he was engaged in extrahazardous employment. It is equally plain that when he was injured, while so employed by Ne Page McKenny Company, the subcontractor in the construction of the building, that company was so engaged in an extrahazardous work; and that respondents as general contractors were engaged in the extrahazardous work of constructing the building when appellant was injured. This has remained the law since the original enactment of that chapter, though the exceptions there referred to, which are embodied in that chapter, have, by amendments thereto, undergone some changes.

In Robinson v. McHugh, 158 Wash. 157, 291 P. 330, we, in effect, held that the excepted rights of action upon which a workman might sue in the courts for injuries suffered by him while engaged in extrahazardous employment became, in legal effect, statutory rights of action, and not common-law rights of action. That decision was adhered to by the court sitting en banc upon a rehearing of that case. 160 Wash. 703, 295 P. 921. Our en banc decision in Denning v. Quist, 160 Wash. 681, 296 P. 145, was also to the same effect. Therefore, it is settled law that whatever right of action in the courts appellant may now have, or heretofore had, since the original enactment of chapter 74, p. 345, Laws of 1911, is a statutory right, and not a common-law right. Whether or not he now has, under chapter 90, p. 263, Laws of 1931, a restored statutory right of action taken from him by chapter 132, p. 325, Laws of 1929, is the question to decide.

Section 3 of chapter 74, p. 346, Laws of 1911, was amended by chapter 120, p. 474, § 1, Laws of 1917; chapter 131, p. 342, § 2, Laws of 1919; chapter 182, p. 720, § 2, Laws of 1921; chapter 310, p. 815, § 2, Laws of 1927; and chapter 132, p. 325, § 1, Laws of 1929. See Rem. Rev. Stat. § 7675, and Rem. 1927 Supp. § 7675. The 1929 amendment became effective on June 12, 1929. So far as need be here noticed, it reads:

'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 or who contracts with another to engage 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 if the injury to a workman 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: * * * 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 that act. * * *'

The italicized portion of this quoted language is to be particularly noticed. Prior to that amendment, the statutory right of an employee, we shall assume, was that he could maintain an action in the courts against one other than his employer, situated as were respondents with reference to appellant, causing him injury by negligence, as alleged in this action.

It is alleged that on May 9, 1929, appellant was injured while engaged in an extrahazardous employment while so employed by Ne Page McKenny Company. This, of course, was Before the effective date of the above-quoted amendment of 1929. On June 26, 1929, appellant commenced an action against respondents in the superior court for damages for the same injuries for which he seeks recovery in this action. In that action he was awarded recovery. These respondents appealed from that judgment to this court, and on February 16, 1931, by an en banc decision, that judgment was reversed and the action ordered dismissed. We held that Denning did not have any right of action; the decision being rested upon the theory that his asserted right of an action maintainable in the courts must be denied him, under the italicized portion of the above-quoted amendment of 1929. See Denning v. Quist, supra.

On March 19, 1931, chapter 90, p. 263, Laws of 1931, was enacted, the Governor approving it on that day, amending section 6, chapter 132, p. 344, Laws of 1929 (formerly section 7697, Rem. 1927 Supp.). The title to that act reads 'An Act relating to proceedings Before the Department of Labor and Industries and appeals from orders, decisions and/or awards thereof, and appeals to the superior court from orders, decisions and/or awards of the joint board of said department, and...