Detrick v. Garretson Packing Co.

• Decision Date: 09 May 1968
• Docket Number: No. 38993,38993
• Citation: 73 Wn.2d 804,440 P.2d 834
• Court: Washington Supreme Court
• Parties: Kenneth DETRICK and Bertha Detrick, his wife, Respondents, v. GARRETSON PACKING COMPANY, Appellant.

Page 804

73 Wn.2d 804

440 P.2d 834

Kenneth DETRICK and Bertha Detrick, his wife, Respondents, v. GARRETSON PACKING COMPANY, Appellant.

No. 38993.

Supreme Court of Washington, Department 2.

May 9, 1968.

Smith, Scott & Hanson, Richard C. Smith, Yakima, for appellant.

Jackson, Ulvestad & Goodwin, Thor P. Ulvestad, Seattle, for respondents.

NEILL, Judge.

Plaintiff, respondents herein, bring an action for personal injuries suffered by plaintiff husband, who will be referred to as the plaintiff. At the time of the accident, plaintiff was a truck driver for Lloyd Varco, doing business as Varco Truck Lines, who was engaged exclusively in hauling cull apples for Tree Top, Inc., a fruit processor operating a large juicing plant near Selah. Plaintiff's duties included assisting in the loading and unloading of the cull apples into and from the truck. Tree Top, Inc., buys cull apples from growers throughout the area and arranges through Varco to have them hauled to its juicing plant. Defendant Garretson Packing Company operates a fruit ranch and packing warehouse northwest of Yakima.

Plaintiff's amended complaint alleges negligence of Lloyd Garretson Company in utilizing and operating a fork lift and joined Tree Top, Inc., as a defendant, alleging negligence in the design and construction of the bins used in the truck loading operation. Defendant Garretson cross-claimed against Tree Top and Varco, asking indemnity. Tree Top was dismissed from the action on summary judgment. At the close of the trial, Varco was dismissed on the ground that he was plaintiff's employer in extrahazardous employment and has full protection against suit arising out of injury to his own workmen. Accordingly, the jury was given only the action of plaintiff against defendant Garretson.

Defendant Garretson, in its answer, set forth three affirmative defenses: first, that plaintiff had waived his rights to sue the third party by electing to take benefits under the Workmen's Compensation Act; second, the defense of contributory negligence; and third, the defenses of Volenti non fit injuria and assumption of risk. The trial court refused to admit evidence relating to the defense of election under the Workmen's Compensation Act and that defense was not submitted to the jury. The jury returned a verdict for defendant Garretson, but the trial court granted plaintiff a new trial on the grounds that it erred in submitting the issue of Volenti non fit injuria to the jury.

Defendant Garretson appeals from the order granting plaintiff a new trial alleging as error: (1) the granting of a new trial; (2) failing to direct a verdict for defendant; (3) refusing to admit evidence to establish plaintiff's election under the Workmen's Compensation Act.

In order to understand the issues thus raised, it is necessary to set forth in some detail the facts giving rise to this litigation.

Defendant stored its cull apples in 4-foot-square wooden bins which have a sloping floor and a trap door arrangement on the front. Defendant's employee operated a fork lift with which he would raise the bin bull of apples a sufficient height to permit the bin to clear the solid sideboards of the truck bed. The operator would then tilt the fork lift mast forward so the bin was poised above the truck bed. The operator could not see through the solid sideboards of the truck so it was plaintiff's duty to advise him as to the placement of the bin above the truck bed. When the bin was thus in place, the plaintiff was to open the trap door to permit the apples to roll out of the bin into the truck bed. While plaintiff was engaged in this latter operation, the loaded bin slid forward off the fork lift tines. The bin struck plaintiff on the right side of his chest, pushing him off the top of the partially loaded truck, over the side, and onto the ground on the side of the truck away from the fork lift operator.

The testimony is far from consistent as to the exact manner in which the accident occurred. Further, there is disparity in the evidence as to plaintiff's knowledge of the danger and risks involved in these loading duties. Plaintiff first testified that the accident occurred on his first day of employment, but later admitted that it was his sixth day of employment, but his first in actual loading with these bins. Plaintiff admits that he was instructed by his employer not to stand in front of the bins; that he clearly understood the hazard of being in front of a loaded bin; could neither admit nor deny that his employer instructed him to use a steel bar to open the trap door of the bin; that the method of loading used was the standard method in the community; and that there was nothing unusual in the manner in which this particular bin was handled.

On the day of the accident, plaintiff had driven the truck to defendant's warehouse to be loaded with cull apples. He and defendant's fork lift operator had dumped several bins onto the truck so the apples were well 'coned up' in the bed of the truck. Defendant's fork lift operator testified that plaintiff then stood in the truck at the place he wanted the next bin dumped and he, the operator, lifted the bin into position, tilted the mast forward about 6 degrees--the maximum the machine would tilt--and that the bin simply kept right on going, sliding off the end of the fork tines and into the truck. The operator next saw plaintiff on the ground on the other side of the truck. The operator testified that he was experienced, that he had never lost a bin from his lift before, and that he operated the lift in the usual manner.

Conversely, plaintiff testified that he stood on the cab of the truck while directing the operator where to position the load, and remained on the cab roof until the operator had completed the lift, and the tilt and the motion of the bin had completely stopped. He thereupon approached the bin by walking on the apples in the truck, positioned himself alongside the bin with his right leg in front of the bin and reached around in front of the bin to open the trap door with his hand. In so doing, he leaned against the bin and exerted pressure on the trap door latch. The bin then slid forward, striking plaintiff in the chest and pushing him off the truck.

Following the accident, plaintiff filed a claim for industrial insurance under the Workmen's Compensation Act. He signed the form provided by the state whereon he indicated his election to receive benefits under the act and assigned his third party claim to the state. Subsequent to the commencement of this litigation, he filed a second and similar form, but this time he indicated his election to bring a third party suit. The state has not objected to this change of election. However, in view of our disposition of defendant's first assignment of error, we do not reach the issue of election of remedies in the instant case.

The granting of a new trial on the ground that the trial court erred in submitting the defense of Volenti non fit injuria to the jury forms the basis for defendant's first assignment of error. As already mentioned, the defenses of contributory negligence and 'volenti' were both raised by defendant. We have repeatedly held that these two defenses, as well as the defense of assumption of the risk, are separate and distinct and that each is available in a particular case if warranted by the facts. Walsh v. West Coast Coal Mines, Inc., 31 Wash.2d 396, 405, 197 P.2d 233 (1948). As noted by the trial court in the case at bar, our recent decision in Siragusa v. Swedish Hospital, 60 Wash.2d 310, 373 P.2d 767 (1962), did eliminate the defense of assumption of the risk in cases involving a master-servant relationship. The holding in Siragusa, however, has no application in the instant case for here we are concerned with an invitee's claim of vicarious liability on the part of a landlord, to which claim the defenses of contributory negligence and 'volenti' are both available if sustained by the proof. The distinction between these two defenses is well stated in our holding in Kingwell v. Hart, 45 Wash.2d 401, 405, 275 P.2d 431, 434 (1954):

The defenses of contributory negligence, assumption of risk, and Volenti non fit injuria are discussed and differentiated in previous opinions of this court, the last being Ewer v. Johnson, 1954, 44 Wash.2d 746, 758, 270 P.2d 813 and case cited. The doctrine of assumption of risk, as it is ordinarily understood, is not applicable in a tort case like the one at bar, because of the absence of master and servant or other contractual relationships. If it be designated 'voluntary exposure to unreasonable risk,' the connotation is more nearly correct, in that it implies the element of willful assent expressed by the maxim Volenti non fit injuria--no wrong is done to one who consents. But the latter maxim applies independently of any contractual relationship or of any negligence of the plaintiff or defendant. Contributory negligence or unreasonable conduct on the part of the plaintiff in view of the foreseeable risk, may be confused with the latter defense, where no real consent to relieve defendant of any duty can be found, but plaintiff has exposed himself voluntarily to an appreciated and known unreasonable risk. In other words, an added inquiry appears if contributory negligence also is asserted, that is, was plaintiff's own conduct under the circumstances unreasonable, in view of the foreseeable risk, so that it can be said that there was a breach of duty on the part of the injured person. More than one of these defenses are available to a defendant if pleaded and proven.

It follows that the inquiry in a tort case, presenting the issues raised on this appeal, may include three questions: Did plaintiff (1) know of and appreciate the danger or risk involved, and also (2) did he voluntarily consent to expose himself to it 'voluntarily' including the meaning that defendant's conduct has left plaintiff a reasonable...