Gifford v. Nottingham

• Decision Date: 17 May 1948
• Docket Number: 7388
• Citation: 68 Idaho 330,193 P.2d 831
• Parties: GIFFORD et al. v. NOTTINGHAM
• Court: Idaho Supreme Court

193 P.2d 831

68 Idaho 330

GIFFORD et al. v. NOTTINGHAM

No. 7388

Supreme Court of Idaho

May 17, 1948

Appeal from District Court, Fifth Judicial District, Bannock County L. E. Glennon, Judge.

Judgment reversed and vacated, and action dismissed with prejudice.

Zener &amp Peterson, of Pocatello, for appellant.

Remedy for injury or death of an employee is exclusively within the provisions of Workmen's Compensation Act. Sec. 43-902 I.C.A. and 43-1003, I.C.A.

Action for death or injury to an employee may be maintained only against "some other person than the employer." Sec. 43-1004, I.C.A.

The defendant as contractor is not, in relation to employees of a subcontractor, "some other person," against whom an action at law may be maintained for death or injury to the employee of a subcontractor, or by such employee's dependents or heirs. Sec. 43-1004, I.C.A.; 43-1611, I.C.A.; In re Fisk, 40 Idaho 304, 232 P. 569; Modlin v. Twin Falls Canal Co., 49 Idaho 199, 286 P. 612; Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699, 120 A.L.R. 388.

Liability for the payment of workmen's compensation by a contractor to the employees of a subcontractor is a liability imposed by law and prevents the maintaining of any action for damages at common law or otherwise for the death of such employee. 58 A.L.R. 894-901; 105 A.L.R. 594-597; Sweeney v. Dahl, 140 Me. 133, 34 A.2d 673, 151 A.L.R. 359-368; Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699.

Louis F. Racine, Jr. and Ben W. Davis, both of Pocatello, for respondents.

The relationship of employer-employee must exist before the workman is excluded from his remedies at law against a tort-feasor. Sec. 43-1004, I.C.A.; Sec. 43-1806, I.C.A.; Sec. 43-1611, I.C.A.; Sec. 43-1807, I.C.A.; Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054; Fisk v. Bonner Tie Company, 40 Idaho 304, 232 P. 569; Modlin v. Twin Falls Canal Co., 49 Idaho 199, 286 P. 612; Moon v. Ervin, 64 Idaho 464, 133 P.2d 933; Boyd v. Humphreys, 117 Neb. 799, 223 N.W. 658.

The qualified liability under Workmen's Compensation Law of a contractor for injury to the employee of a subcontractor is imposed to protect the workmen of the subcontractor who has failed to insure his employees and does not render the contractor an employer. Sec. 43-1611, I.C.A.; Hiebart v. Howell, 59 Idaho 591, 85 P.2d 699; Sweezey v. Arc Electrical Const. Co., Inc., 295 N.Y. 306, 67 N.E.2d 369, 166 A.L.R. 809; Boyd v. Humphreys, 117 Neb. 799, 223 N.W. 658, supra; Corbett v. Starrett Brothers, 105 N.J.L. 228, 143 A. 352; Langston v. Selden Brick Const. Co., 225 Mo.App. 531, 37 S.W.2d 474; Trumbull Cliffs Furnace Co. v. Shachovsky, 111 Ohio St. 791, 146 N.E. 306; Modlin v. Twin Falls Canal Co., supra.

Hyatt, Justice. Givens, C. J., and Budge, J., concur. Holden, Justice, dissenting. Miller, J., concurs in this dissenting opinion.

OPINION

Hyatt, Justice.

Appellant Nottingham as general contractor was engaged in the construction of certain sewers in and for the City of Pocatello. Grayson and Horner, under sub-contract with Nottingham, were digging pipe trenches for the sewers. Earl Frank Gifford, son of the respondents, was killed on March 12, 1946, while engaged in the trench digging, as a result of an accident arising out of and in the course of his employment with Grayson and Horner, occasioned by the negligence of Nottingham's employees who were performing work at the time in such sewer construction.

Respondents brought this action as heirs at law of Earl Frank Gifford to recover from appellant damages for the wrongful death of their son. From a judgment on verdict in their favor, and an order denying his motion for a new trial, Nottingham appeals.

All assignments of error present for determination the sole question of the right of the respondents to bring and maintain this action.

At the outset, we are confronted with the following provisions of our Workmen's Compensation Law: "* * *. The state of Idaho, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for injured workmen and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as is otherwise provided in this act, and to that end all civil actions and civil causes of action for such personal injuries, and all jurisdiction of the courts of the state over such causes are hereby abolished, except as is in this act provided." Sec. 43-902, I.C.A.

"The rights and remedies herein granted to an employee on account of a personal injury for which he is entitled to compensation under this act shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury. * * *" Sec. 43-1003, I.C.A.

The words "injury" or "personal injury" include death resulting from an injury within two years after an accident. Sec. 43-1809, I.C.A.

Our Workmen's Compensation Act is a remedial and special law providing compensation for injured employees, without reference to any question of negligence, either on the part of the employer or employee. Lebak v. Nelson, 62 Idaho 96 at page 119, 107 P.2d 1054. It is purely statutory and is an express departure and innovation so far as the common law is concerned, explicitly doing away with common law actions previously applicable to controversies within the scope of the statute. Cook v. Massey, 38 Idaho 264 at page 269, 220 P. 1088, 35 A.L.R. 200. This court, commenting on Sec. 43-902, I.C.A. supra, said in Olson v. U. P. R. R. Co., 62 Idaho 423 at page 428, 112 P.2d 1005, 1007, that the legislature abolished every remedy for all injuries (negligent and non-negligent) received by a workman "in course of his employment."

However, actions of an employee, his heirs or personal representatives, against a third person to recover damages for personal injuries or death sustained by reason of actionable negligence of such third party, are not abolished by the Workmen's Compensation Law, the provisions of the statute being expressly confined to those occupying the relationship of employee and employer. Lebak v. Nelson, supra, at page 111, 112 of 62 Idaho 107 P.2d 1054. The legislative intent in regard to the maintenance of an action against a third party, whose negligence is responsible for an injury or death arising out of and in the course of employment, is expressed in Sec. 43-1004, I.C.A. providing as follows: "When an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person: provided, if the employer shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this act, then any such excess shall be paid to the injured employee less the employer's expenses and costs of action."

However, in the enactment of Secs. 43-902, I.C.A. and 43-1003, I.C.A. supra, the legislature removed from the sphere of civil actions, all suits against an employer for damages on account of personal injury or death of an employee, where such injury or death arises out of and in the course of the employment, and this restriction applies to the employee, his personal representatives, dependents and next of kin, which latter term includes heirs. It is immaterial whether respondents were dependents of their son or not. If Nottingham was an employer within the meaning of the Workmen's Compensation Act, respondents cannot maintain this action. If he is some person other than such employer, that is, a third party, then they are entitled to recover against him.

In the event of death of an employee resulting from an accident arising out of and in the course of his employment, there are three general classes of payments designated as compensation, to wit: Payment of personal compensation to the employee and his dependents; payment of hospital, medical and burial expenses; and where there are no dependents, payment of a lump sum to the State. State ex rel. Wright v. C. C. Anderson Co. of Emmett, 65 Idaho 400, 145 P.2d 237; Sec. 43-1101, I.C.A. as amended by Chap. 147, 1935 Laws.

In determining whether Nottingham was the employer or some other person than the employer within the meaning of the act, decisions from other states are not particularly helpful by reason of the difference in statutes. We are concerned here primarily with a question of legislative intent as expressed in the statute directly or by necessary implication. Arneson v. Robinson, 59 Idaho 223, 82 P.2d 249 at page 255; Hancock v. Halliday, 65 Idaho 645, 150 P.2d 137 at page 138, 154 A.L.R. 295.

Sec 43-1806, I.C.A. defines "Employer" as follows: "'Employer,' unless otherwise stated, includes any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer. It includes the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor, or for any other reason, is not the direct employer of the workmen there employed. If the employer is secured it includes his surety so far as...