Kirk v. United States

• Decision Date: 24 May 1956
• Docket Number: No. 14766.,14766.
• Parties: Martha M. KIRK, an adult, and Kenneth William Kirk, a minor, who sues by his Guardian ad Litem, Martha M. Kirk, Appellants, v. The UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

232 F.2d 763 (1956)

Martha M. KIRK, an adult, and Kenneth William Kirk, a minor, who sues by his Guardian ad Litem, Martha M. Kirk, Appellants, v. The UNITED STATES of America, Appellee.

No. 14766.

United States Court of Appeals Ninth Circuit.

April 13, 1956.

Rehearing Denied May 24, 1956.

Richards, Haga & Eberle, Boise, Idaho, for appellants.

Sherman F. Furey, Jr., U. S. Atty., John T. Hawley, Asst. U. S. Atty., Boise, Idaho, for appellee.

Before DENMAN, BONE and POPE, Circuit Judges.

POPE, Circuit Judge.

This is an appeal from a summary judgment for the defendant in an action brought under the provisions of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2674 to 2680. The plaintiffs, appellants here, are the widow and minor child of William M. Kirk, who lost his life when he fell from a scaffold upon which he was working as a carpenter during the construction of Lucky Peak Dam on the Boise River in Idaho. The action was predicated upon the wrongful death statute of that State, § 5-311, Idaho Code.

Lucky Peak Dam was being constructed in accordance with plans and specifications prepared by the Department of Army, Corps of Engineers, under a contract between the United States and Bruce Construction Co. and Russ Mitchell Inc., general contractors for the construction of certain control works at the outlet of the dam. Kirk was an employee of these general contractors. He was not an employee of the United States.

The complaint alleged that Kirk's death came about when the scaffold upon which he was working broke, causing him to fall into the current of the river and to be carried into the tunnel; that the breaking of the scaffold and the fall of Kirk were due to the careless and negligent acts and omissions of the employees of the defendant.¹ After service of the complaint and before answer, each party submitted to the opponent requests for admissions and interrogatories, and responses thereto were filed by both parties. Thereafter, before time to answer expired, the defendant moved for summary judgment in its favor, "on the ground that the pleadings, the admissions, the interrogatories and the certified copy of contract marked Exhibit A, and attached to plaintiffs' requests for admissions, show that the defendant is entitled to judgment as a matter of law." As indicated, this motion was granted and the judgment appealed from was entered thereon.

The motion was predicated upon the contention of the defendant, appellee here, that it was an "employer" within the meaning of the Idaho Workmen's Compensation law, Idaho Code §§ 72-101 to 72-1103, under which the rights and remedies of an employee against his employer for personal injury are confined to those provided by the Act which excludes all other rights and remedies of the employee, his dependents or next of kin.² The contention was that even if the United States was not actually covered by the Workmen's Compensation Act,³ yet the situation of the defendant here and the work being done by it, were such that, had defendant been a private party, it would then be an "employer" as defined in the Act. The position of the defendant was that it was not liable under the Tort Claims Act except "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred", Title 28 § 1346 (b), and only "in the same manner and to the same extent as a private individual under like circumstances"; Title 28 § 2674,⁴ and that if it had been a private person doing what it did here, it would, as such an "employer" have been excused from any liability under the common law or the wrongful death statute by reason of the Workmen's Compensation Act. So it says it cannot be liable here.

In order to test this defense, which the trial court sustained, it is necessary that we summarize the facts and examine the language of the State statute upon which defendant relied. The facts disclosed by its own admissions and responses to interrogatories and requests for admissions,⁵ are that the dam and works referred to were being constructed upon property belonging to the United States under contract let to the general contractors mentioned. The defendant was represented at the dam by a project engineer who had been appointed by a district engineer of the Corps of Engineers. Under him was a civilian employee who was an inspector, but who was not acting "in any overseeing capacity" of the work being performed by the contractors' employees. Also stated in its response to plaintiffs' interrogatory No. 1 is the following: "No officer or employee of the Defendant had general management or control of the actual construction of the control tower of Lucky Peak Dam in May, 1953. The work was being performed by Russ Mitchell, Inc., a Texas Corporation, and H. B. Bruce, an individual trading as Bruce Construction Company, address: P. O. Box 1562, Boise, Idaho, under Contract No. DA-45-164-eng-2200 and those companies had such general management and control of the construction work." Later in the same answers to interrogatories it is stated that "the design, specifications, and plans for the completed work * * * had been prepared by the Corps of Engineers, Department of the Army." A similar statement in plaintiffs' requests for admissions was admitted by the defendant.

We are of the opinion therefore that it sufficiently appears from these sources that the Government, as proprietor thereof, was interested in the construction of a flood control project, the plans for which it had designed, and that the actual work thereon was being done by the independent contractors under contract let to them.^5a

Turning to the Idaho Workmen's Compensation Act, it is important to notice, in addition to § 72-203, quoted supra, note 2, the following sections:

"72-811. Contractors and subcontractors. — An employer subject to the provisions of this act, shall be liable for compensation to an employee of a contractor or subcontractor under him or who has not complied with the provisions of section 72-801 in any case where such employer would have been liable for compensation if such employee had been working directly for such employer. The contractor or subcontractor shall also be liable for such compensation, but the employee shall not recover compensation for the same injury from more than one party. * * *"

"72-1010. Employer. — `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 applicable."

"72-105a. Employments not covered. — None of the provisions of this act shall apply to the following employments, unless coverage thereof is elected as provided in section 72-105b:

"1. Agricultural pursuits. Agricultural pursuits, as used herein, shall include the care-taking and handling of livestock on enclosed lands and public ranges.

"2. Household domestic service.

"3. Casual employment.

"4. Employment by charitable organizations.

"5. Employment of outworkers.

"6. Employment of members of employer\'s family dwelling in his household.

"7. Employment of airmen or individuals, including the person in command and any pilot, mechanic or member of the crew, engaged in the navigation of aircraft while under way.

"8. Employment which is not carried on by the employer for the sake of pecuniary gain."

"72-204. Liability of third persons. — 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."

We note that under that Act the person who is liable for the compensation therein provided for is the "employer subject to the provisions of this act," — § 72-811. It is this "employer" who by virtue of § 72-203 is exempt from the ordinary action or suit for negligence. Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831. But nothing in the Act exempts any other persons, that is to say, persons who are not "employers", from actions for damages for negligence. Such actions may be brought, in the language of § 72-204, when the injury has been sustained in "circumstances creating in some other person than the employer a legal liability to pay damages." This right to sue to recover for the negligence of any person who is not an "employer" under the Act "was not abolished" by the Idaho Act, and the common law action may be maintained notwithstanding the plaintiff may have collected compensation under the Act from his employer. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054, 1061. The liability of the employer for compensation under the Act "is a separate and distinct liability from that of the third party tort-feasor for damages." Lake v. State, 71 Idaho 107, 110, 227 P.2d 361, 363. And although § 72-204 gives the employer a right to claim subrogation to the injured employee's recovery against the...