Gephart v. Stout

• Citation: 11 Wn.2d 184,118 P.2d 801
• Decision Date: 07 November 1941
• Docket Number: 28192.
• Parties: GEPHART v. STOUT.
• Court: Washington Supreme Court

118 P.2d 801

11 Wn.2d 184

GEPHART v. STOUT.

No. 28192.

Supreme Court of Washington

November 7, 1941

Department 1.

Action by Max Gephart against Jess Stout for injuries sustained in collision between plaintiff's motorcycle and defendant's automobile. Judgment for plaintiff, and defendant appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Chas W. Greenough, judge.

H. Earl Davis, of Spokane, for appellant.

R. E Lowe, of Spokane, for respondent.

DRIVER Justice.

This is an action to recover damages for personal injuries sustained by plaintiff when a motorcycle with a sidecar attachment which he was driving, collided with an automobile owned and operated by the defendant. A jury returned a verdict for the plaintiff. The defendant made timely motions for directed verdict, for judgment notwithstanding the verdict, and for a new trial, all of which the trial court denied. The defendant appealed from the judgment entered on the verdict.

The collision occurred on September 6, 1939, within the right-angle intersection of east-west arterial Third avenue and north-south nonarterial Wall street, in the city of Spokane. Strangely, none of the numerous witnesses definitely fixed the hour. The record indicates that it was some time in the afternoon Before sundown. The weather was clear, and the streets were dry.

Third avenue is fifty-one feet wide between curb lines, with a twelve-foot sidewalk on either side. Wall street is forty-two feet wide between curb lines. The streets are paved. There are stop signs both north and south of the intersection. A driver approaching it from the south would be confronted by two such signs, one a flexible rubber flap, with the word 'Stop' on its southerly face, set in the pavement in the center of the south line of the pedestrian lane, and the other, a conventional octagonal arterial sign standing just inside the curb on the right (east) side of Wall street, twenty-five feet south of the intersection. On the south-east corner of the intersection, there is a four-story apartment house. Its north and west walls are flush with the property lines.

The jury could have found from the testimony of respondent and his witnesses that the accident happened in the following manner: There was considerable traffic on Third avenue at the time, 'a string of cars going west and a string of cars going east,' as one witness put it. Appellant was driving north on nonarterial Wall street, respondent west on arterial Third. Appellant drove his automobile into the intersection without stopping, passing to the left of a car which had halted and was waiting to enter it. When appellant was about halfway through the intersection, he turned to his left and drove the front of his car against the left side of respondent's motorcycle, pushing it over to the curb at the northwest corner. Respondent had been proceeding on his right (the northerly) side of Third, at twenty miles an hour, slowing to fifteen as he neared the intersection. When he was about forty feet from it, he looked to his left. He saw some cars going east on Third and a car headed north, which had stopped back of the rubber stop sign on Wall. He did not look to his left again and did not see appellant's automobile until it struck his motorcycle after he had gone three fourths of the way across the intersection. Respondent's left leg was badly crushed and broken, he was confined in a hospital for more than three months, and he suffered permanent impairment of motion of the ankle joint.

The appellant and his witnesses gave a quite different account of the accident. They testified that appellant did stop Before entering the intersection, and that the respondent was driving greatly in excess of the lawful speed limit, but, clearly, the factual conflict was for the jury to resolve. It is too apparent to call for comment or citation of authority that, in the instant case, neither the question of the negligence of the appellant nor the question of the contributory negligence of the respondent should have been determined by the court as a matter of law.

Appellant assigns as error the trial court's denial of his motions challenging the sufficiency of the evidence, but, on that score, his principal contention is that respondent's action was barred by certain provisions of the workmen's compensation act, or, as it is sometimes called, the industrial insurance act.

Without question, respondent, making deliveries by motorcycle, was a workman engaged in extrahazardous employment under the act at the time of his injury. Before starting suit, he formally elected to seek his remedy by suit against the appellant rather than apply for workmen's compensation. But appellant was the owner of an auto freight transportation business (also concededly classified as extrahazardous), operating under the name of Spokane Pacific Line. He paid premiums to the department of labor and industries on the basis of his reported payrolls, although he did not carry himself on such payrolls for permissive employee benefits. The portion of the act upon which appellant particularly relies is the italicized proviso in the following quotation from Rem.Rev.Stat. (Sup.) § 7675: '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 this act.' (Italics ours.)

Appellant's contention presents this question: Was the appellant, as an employer at the time of the accident, in the course of any extrahazardous employment within the meaning of the language of the statute? There is no evidence in the record that appellant was doing anything in connection with the conduct of his motor freight transportation business when the collision occurred. He was driving a five-passenger sedan automobile. No one was with him in the car. There is no indication as to where he was going or what his mission was other than the following testimony, which he gave on direct examination:

'Q. Now, on the day of this accident, Mr. Stout, where had you been just prior to the accident? A. Home.

'Q. And that is up on Sixth Avenue? A. Yes, sir.

'Q. And where were you going? A. I was going to the Carpenters' Union Hall.'

This court has never Before had occasion to pass upon a case involving precisely similar circumstances. Appellant cites a number of the workmen's compensation decisions of this court, but all of them are factually distinguishable. In Robinson v. McHugh, 158 Wash. 157, 291 P. 330, the third party employer, held not subject to suit by the injured workman, was a contributor to the industrial insurance fund, but, clearly, at the time of the accident, the employer also was actually engaged in extrahazardous work, which involved the operation of the very agency by which the workman's injury was inflicted (moving a gasoline power shovel). The same may be said of Denning v. Quist, 160 Wash. 681, 296 P. 145. The third party employer's activity at the time of the accident in that case was building construction work, and the plaintiff workman was injured in an elevator, or hoist, used in the prosecution of such work.

O'Brien v. Northern Pacific R. Co., 192 Wash. 55, 72 P.2d 602, was a suit by a brewery truck driver for personal injuries resulting from a collision of his truck with a train of a railroad company engaged in both interstate and intrastate commerce. The principal departmental opinion held that, although the operation of a train was an extrahazardous business, yet the company could be sued at the election of the injured workman, because it was not subject to the state industrial insurance act and had made no contributions to the state fund. Two judges specially concurred in the result on the ground that, in contemplation of law, the company was not 'in the course of any extra-hazardous employment' under the act. The principal opinion was approved, however, in a later en banc decision, Reeder v. Crewes, 199 Wash. 40, 90 P.2d 267.

There third party employers, engaged in extrahazardous business at the time of an accident, were, nevertheless, held subject to suit by an injured workman not in their employ because such employers were at the time in default in the making of payroll reports and in the payment of premiums required by the act. The two last mentioned cases established the rule that a third party employer who does not contribute to the industrial insurance fund is subject to suit by a workman, but it does not follow that such an employer who does contribute to the fund is immune. Pryor v. Safeway Stores, Inc., 196 Wash. 382, 83 P.2d 241, 243, 85 P.2d 1045. In that case, it was held that third party employers not engaged in extrahazardous work at the time of an accident, were subject to suit even though they had brought themselves within the elective adoption provisions of the workmen's compensation act and had contributed to the fund by the payment of payroll premiums. This holding of the majority departmental opinion, which was approved on rehearing en banc, was based, in the language of the opinion, upon 'the terms of the act itself.' The 'terms' considered particularly significant were those of...