Johnson v. Pease

• Decision Date: 27 August 1923
• Docket Number: 18017.
• Citation: 217 P. 1005,126 Wash. 163
• Court: Washington Supreme Court
• Parties: JOHNSON v. PEASE et ux.

217 P. 1005

126 Wash. 163

JOHNSON v. PEASE et ux.

No. 18017.

Supreme Court of Washington

August 27, 1923

Department 2.

Appeal from Superior Court, King County; Frater, Judge.

Action by Richard Johnson against H. M. Pease and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for appellants.

Wright & Wright, of Seattle, for respondent.

PEMBERTON J.

Respondent recovered damages for personal injuries resulting from the negligence of appellants in the operation of their automobile.

As an affirmative defense to the complaint of respondent, the answer of appellant set forth the following:

'I. That the plaintiff, at the time said accident occurred, was a fireman in the employ of the fire department of the said city of Seattle, and was engaged in the performance of his duties as such fireman, when said accident occurred and his alleged injuries received.

'II. That the work in which the plaintiff was engaged at the time said accident occurred and his alleged injuries were received, was extrahazardous and within the terms and purview of the Industrial Insurance Act of the state of Washington.

'III. That pursuant to the statutes of the state of Washington the city of Seattle maintains a firemen's relief and pension fund consisting of bequests, fees, gifts emoluments or donations and assessments or fees paid by members of said fire department, and revenue appropriated by the city council of said city of Seattle, out of which firemen injured in the course of their employment are entitled to receive and are paid accident and sick benefits and are provided with hospital and medical care during disability resulting from sickness or accident.

'IV. That immediately following said accident the plaintiff was provided with hospital and medical care and attention by said firemen's relief and pension fund and thereafter filed his claim with said firemen's relief and pension fund, for benefits during the disability resulting from said alleged injuries, and that he has been paid to date benefits from said pension and relief fund amounting to $128.05, and is entitled to receive and will receive from said fund the additional benefits during the continuance of said disability, as provided by said statutes and the regulation of said fund.

'V. That said relief and benefits were paid to the plaintiff and received by him in lieu of the compensation to which he would have been entitled under the Industrial Insurance Act of the state of Washington, and that said act is a bar to the maintenance of this action.'

It is admitted that at the time of the accident complained of respondent was a member of the fire department of the city of Seattle, and was riding on a motor vehicle of the fire department on its way to put out a fire.

The appellants present six assignments of error, and in their brief state:

'Each of the foregoing assigned errors is based upon the same ground, to wit, the validity of the affirmative defense asserted by the appellants. It is contended by the appellants, first, that they were entitled to judgment as a matter of law because the respondent's action is barred by the Industrial Insurance Act, and, second, that the court erred in refusing to admit the testimony of the appellants in support of their affirmative defense, and by instructing the jury to disregard said defense thereby entitling the appellants to a new trial.'

It is contended by appellants that respondent was engaged in an extrahazardous occupation, defined by the Legislature in the Industrial Insurance Act of 1911 (sections 6604-1, 6604-2, Rem. 1915 Code), and that respondent comes within section 6604-17, Rem. 1915 Code, which reads as follows:

'Whenever the state, county, any municipal corporation * * * shall engage in any extrahazardous work in which workmen are employed for wages, this act shall be applicable thereto. * * * Whenever and so long as, by state law, city charter or municipal ordinance, provision is made for municipal employees injured in the course of employment, such employees shall not be entitled to the benefits of this act and shall not be included in the payroll of the municipality under this act.'

Appellants claim that, since the Legislature of this state passed an act creating a firemen's relief and pension fund (Session Laws 1919, p. 668) and respondent received compensation from this firemen's relief and pension fund, this compensation was given in lieu of the compensation provided under the Industrial Insurance Act and that all the provisions of the Industrial Insurance Act including those of abolishing respondent's common-law action for damages are in full force and effect. In support of this contention appellants call our attention to the case of State ex rel. Fletcher v. Carroll, 94 Wash. 531 162 P. 593, in which we said:

'Having in view the declarations concerning the purposes of the act and the evils it was sought thereby to remedy, we cannot conclude that the legislature meant to subject municipalities, merely because they had themselves made provision for the care of their employees, injured while in the course of their employment, to the burdens and hazards of a common-law action in damages. We think it was meant, rather, to substitute the remedy afforded by the city for the remedy afforded by the act, and to leave the provisions which take away the common-law action in force.'

Appellants also contend that the acceptance of compensation from the state bars the right of action for damages against the injured workman's employer and also against the alleged negligence of a third person. Peet v. Mills, 76 Wash. 437, 136 P. 685, L. R. A. 1916A, 358, Ann. Cas. 1915D 154; Ross v. Erickson Construction Co., 89 Wash. 634, 155 P. 153, L. R. A. 1916F, 319; Zenor v. Spokane & I. E....