Henry v. St. Regis Paper Co.

• Decision Date: 27 November 1959
• Docket Number: No. 34779,34779
• Parties: James A. HENRY, Appellant, v. ST. REGIS PAPER COMPANY, a corporation, Respondent.
• Court: Washington Supreme Court

Page 148

55 Wn.2d 148

346 P.2d 692

James A. HENRY, Appellant, v. ST. REGIS PAPER COMPANY, a corporation, Respondent.

No. 34779.

Supreme Court of Washington, En Banc.

Nov. 27, 1959.

Durham, Guimont & Moore, Max R. Nicolai, Seattle, for appellant.

Eisenhower, Hunter & Ramsdell, George M. Hartung, Jr., Tacoma, for respondent.

MALLERY, Judge.

This is an appeal by the plaintiff from a summary judgment for the defendant.

The following decisive facts appear in the indicated pleadings or in an affidavit submitted by the respondent. Being uncontroverted, they were properly taken as true by the trial court.

The appellant was engaged in extrahazardous employment (answer) as supervisor for the Foss Launch and Tug Company (complaint). The complaint further alleged:

'That the defendant operates a pulp mill in the City of Tacoma, State of Washington, and was carrying on the operations of a pulp mill on the 18th day of September, 1953. That on said day after plaintiff finished his morning shift and while he was on his way home for lunch he was met at the defendant's boom shack by the Superintendent of the Chipping Plant of the defendant, to-wit: Bert Doolittle, and invited to his office on the logging deck of the defendant's plant. That pursuant to said invitation, the plaintiff accompanied by the said Bert Doolittle, went to the logging deck and spent approximately fifteen minutes of his lunch hour in the said Doolittle's office. That he then left the office to go to his car and to return home. That upon leaving Doolittle's office, and while alongside of it on the defendant's premises, the plaintiff suddenly, without warning, was struck by the log carriage operated by the defendant. * * *'

The purpose of the appellant's presence on the respondent's premises is made to appear in the uncontradicted affidavit of the respondent's superintendent, the pertinent part of which is:

'Bert E. Doolittle, being first duly sworn, on oath deposes and says: That he resides at 1229 East 46th Street, Tacoma, Washington; that he has been employed by the St. Regis Paper Company for twenty years, and that on September 18, 1953 and since that date he has acted for the St. Regis Paper Company in the capacity of Wood Mill Superintendent.

'That shortly before 2 P.M. on September 18, 1953, he was outside the mill, itself, examining the logs at the log dump; that during the time he was at the log dump James A. Henry drove up to the mill in his automobile and walked over to where your affiant was standing.

'That the said James A. Henry stated to your affiant that he wished to secure the figures on the number of sinkers which the Foss Launch & Tug Company, of Tacoma, Washington, had hauled into our log dump on the preceding day; * * *'

The respondent is also engaged in extrahazardous employment. See RCW 51.12.010, 51.20.210. It thus affirmatively appears uncontradicted in the record that both the appellant and the respondent were engaged in extrahazardous employment, and that the appellant was injured in the course of that employment while on the premises of the respondent.

RCW 51.24.010 [Rem.Rev.Stat. (Sup.) § 7675, part], according to its terms at the time of the accident, precludes the maintenance of an action on behalf of an injured workman under these circumstances.

The appellant contends the court erred in considering the affidavit of respondent's superintendent in ruling on the motion for a summary judgment.

First, he contends that many of the allegations in the affidavit consist of conclusions of law rather than evidentiary facts, and, hence, they would be inadmissible in evidence at a trial.

Regarding this contention, it may be stated that the part of the affidavit, which we have quoted, is not subject to this objection and is sufficient, as evidentiary facts, to be admissible at a trial, and hence, will support a motion for a summary judgment. Any additional allegations in the affidavit which may have consisted of conclusions or inadmissible evidence must be treated as mere surplusage. Dickheiser v. Pennsylvania R. Co., D.C., 5 F.R.D. 5; 3 Barron and Holtzoff, Federal Practice and Procedure, 169, § 1237.

Appellant's other contention is that the affidavit does not comply with the requirement of Rule of...