De Haas v. Cascade Frozen Foods, Inc.

• Decision Date: 04 October 1945
• Docket Number: 29589.
• Citation: De Haas v. Cascade Frozen Foods, Inc., 23 Wn.2d 754, 162 P.2d 284 (Wash. 1945)
• Parties: DE HAAS v. CASCADE FROZEN FOODS, Inc.
• Court: Washington Supreme Court

162 P.2d 284

23 Wn.2d 754

DE HAAS v. CASCADE FROZEN FOODS, Inc.

No. 29589.

Supreme Court of Washington

October 4, 1945

Action by John W. De Haas against Cascade Frozen Foods, Inc., to recover for injuries sustained while working for defendant on a machine.From a judgment of nonsuit, plaintiff appeals.

Affirmed.

BLAKE and MALLERY, JJ., dissenting.

Appeal from Superior Court, Yakima County; N. K. Buck, Judge.

J. D Searle, of Chehalis, and J. P. Tonkoff, of Yakima, for appellant.

Nat U Brown, of Yakima, for respondent.

SIMPSON Justice.

The plaintiff brought this action to recover compensation for personal injuries sustained while working for defendant on a machine operated in the process of cleaning beans.

In his amended complaint plaintiff alleges that he was employed in extra-hazardous employment for defendant during the month of September, 1942, in that he was operating power-driven machinery in the cleaning of beans, which was situated in a factory, mill, or workshop where the machinery was used, as defined in the workmen's compensation act of the state of Washington; that defendant failed to furnish to the department of labor and industries any report of its operations on which plaintiff was employed as provided by law.It was further alleged that while so employed and as approximate result of the negligence of defendantplaintiff was injured.

The charges of negligence were: In failing to furnish a safe place to work and in failure to equip the bean-cleaning machine with suitable guards and safety devices.

Defendant in its answer, admitted that plaintiff was employed by it, but denied all of the remaining allegations of the complaint.Defendant then presented four affirmative defenses to plaintiff's cause of action.The first defense was that defendant was engaged in an agricultural operation; that plaintiff had filed a claim with the supervisor of the industrial insurance of the state of Washington and, in his claim, alleged that he was engaged in an extrahazardous occupation as defined by the workmen's compensation act of the state of Washington; that April 26, 1943, the supervisor rejected the claim for the reason that at the time of injury the workman was not engaged in any work within the jurisdiction of the division of industrial insurance; further, that plaintiff appealed to the joint board and that thereafter at plaintiff's request the appeal was dismissed and that the decision of the department was res judicata upon the questions presented by plaintiff's complaint.

The second affirmative answer claimed that plaintiff's election to recover from the workmen's compensation fund barred him from bringing an action against defendant.

The third affirmative answer alleged that plaintiff's injuries and damages, if any, were caused by his 'carelessness, negligence, and contributory negligence.'

The fourth defense claimed that the damage to plaintiff, if any, was due to the risk inherent in and incidental to the work and was assumed by plaintiff.

The reply put in issue the allegations contained in the affirmative defenses.The case came on for trial.A jury was impaneled and evidence was produced on behalf of plaintiff.At the end of plaintiff's case a motion for a judgment of non-suit and dismissal of the complaint was presented by defendant.Thereafter an order and judgment were duly made and entered by the trial court, granting the motion for non-suit and dismissing the action.Plaintiff appealed.

The assignment of error is in granting defendant's motion for dismissal at the close of plaintiff's case.

The facts insofar as we are able to collect them from the statement of facts may be summarized as follows: Plaintiff was injured September 29, 1942, at a time when he was in charge of the operation of a machine used to clean beans.The machine was placed upon a stationary platform thirty feet wide and sixty feet long, the top of which was about four feet above the ground.The machine was five feet wide, seven feet in length, and five feet in height.Appellant was injured when he attempted to clean the machine by pouring water into it at the close of the day's work.

It is impossible to ascertain how the machine was constructed because of the manner in which its construction and operation were attempted to be described to the court and jury.To illustrate, we quote from appellant's testimony:

'A.It was operated by a big power machine, and that was a 45-horsepower motor.

'Q.Electric motor?A.Gas motor.

'Q.Can you give the jury some idea of how it worked as it cleaned these peas?A.Well, this here recleaner is just--I suppose they know about what a separator is, that is, a wheat separator to reclean wheat--it's on practically the same thing.There was a big fan in here (illustrating), and I poured the peas in here, and there was a little place in here that I had to clean across there, and this big fan I got caught in was sitting over in there--I should judge it might have been up that high maybe (Illustrating), I don't know.Then there was another place over back here I had to clean out; then several or two or three places in on the other side that I had to go in there with sticks to poke the derbries (debris) loose, and, while I was getting that machine ready to clean for the evening, I was pouring water in here (illustrating); I think there was three different places I had to pour water in here to soak that stuff loose so it could be cleaned for the next morning, and while I was doing that, I slipped and fell.

'Q.What position were you in when you were cleaning that?A.Well, just standing in--oh, kind of a brace like that, had my foot down here on kind of a frameworks on the outside, and my other foot kind of over here on top.'

Later, during the examination of appellant, his counsel induced him to draw a sketch of the platform and the bean cleaning machine.However, the sketch is of no great value to this court in ascertaining the position of the fans operating within the machine, nor the manner in which they were operated, nor the position in which appellant placed himself while cleaning the machine.The sketch is without any value whatever in showing the places into which the water had to be poured in order to clean the machine.It seems that one fan was placed in the lower part and the other in the top portion of the machine.The lower fan was covered, but the top of the upper one was exposed.

Appellant, in attempting to clean the machine, placed one foot on some kind of brace and the other on the top of the hopper into which the beans were poured, the top of the hopper being on a level with the top of the exposed fan.The places on which appellant stood were wet and slippery and known to be so by him at the time he attempted to clean the machine at the end of the day's work.From the place and position indicated by appellant, he attempted to pour water into the machine and, in so doing, leaned forward.As he did so his feet slipped and he fell and, in falling, instinctively put his hand forward.It came into contact with the blades of the top fan, which resulted in a serious injury.Appellant had been operating the recleaning machine for four or five days Before his injury and had repaired and set up hulling machines near Pomeroy.Asked if he was thoroughly familiar with them, he answered, 'Well, pretty much.'

Respondent corporation was generally engaged in the buying and freezing of foods and had a place of business in Kennewick.Defined, 'the cleaning, hulling and vining was a part of freezing them.'The crops were contracted for by respondent Before they were planted.

Appellant filed with the department of labor and industries a report of the accident and claimed compensation under the workmen's compensation act.April 26, 1943, the supervisor of industrial insurance rejected the claim for the reason that at the time of the injury the workman (appellant here) was not engaged in work within the jurisdiction of the division of industrial insurance.

Appellant then applied for a hearing Before the joint board.The application was granted June 22, 1943.Thereafter appellant moved to dismiss the appeal.His motion was granted by an order which reads:

'Having reviewed the entire record and file at this time the Joint Board concludes that since the claimant does not wish to pursue the matter further at this time Before the Joint Board and has taken another course of action against the employer, that the action of the Supervisor of Industrial Insurance of April 26, 1943, be and hereby is sustained and the appeal dismissed because claimant does not wish to pursue the matter further.'

This action was commenced prior to the time the above order was made by the joint board.

Appellant contends that he was engaged in an extrahazardous occupation at the time he was injured, that respondent, in failing to comply with the law relative to making returns and pay roll payments to the state, rendered itself liable to him.He argues that respondent did not comply with the provisions of the factory act, Rem.Rev.Stat § 7658(now Rem.Supp.1943, § 7658), by not having the fan covered.He argues further that provisions of...