Koreski v. Seattle Hardware Co.

• Decision Date: 03 April 1943
• Docket Number: 28689.
• Citation: 135 P.2d 860,17 Wn.2d 421
• Parties: KORESKI v. SEATTLE HARDWARE CO.
• Court: Washington Supreme Court

135 P.2d 860

17 Wn.2d 421

KORESKI v. SEATTLE HARDWARE CO.

No. 28689.

Supreme Court of Washington, En Banc.

April 3, 1943

Personal injury action by M. A. Koreski against Seattle Hardware Company. From an order granting plaintiff's motion for a new trial, defendant appeals.

Order reversed and cause remanded with direction.

BLAKE and JEFFERS, JJ., dissenting.

Appeal from Superior Court, King County; Calvin S Hall, judge.

Rummens & Griffin, of Seattle, for appellant.

Wettrick Flood & O'Brien, of Seattle, for respondent.

MILLARD Justice.

Plaintiff who is the president and general manager of an electric motor service corporation, instituted this action to recover against defendant corporation for personal injuries sustained by him in defendant's plant while supervising, and/or personally assisting in, the repair of a motor which operated a movable crane. At the close of plaintiff's case defendant moved dismissal of the action on the grounds that (1) plaintiff's right of action was abolished by the Workmen's Compensation Act; (2) plaintiff's contributory negligence was a proximate cause of the accident; and (3) absence of negligence on the part of defendant. The motion was denied on the first ground but granted on second and third grounds. The court discharged the jury and orally announced that judgment dismissing the action would be entered. Subsequently plaintiff's motion for a new trial upon a number of grounds was granted and an order to that effect was entered. Defendant appealed.

A corporation (Ace Electric Motor Service, Inc.) which is within the extrahazardous employment classification, has a contract with another corporation (Seattle Hardware Company), whose operation of power-driven machinery brings it within the extra-hazardous employment classification, to repair machinery of the second corporation. The first corporation sends its president and manager to the plant of the second corporation to supervise, and/or personally assist in the repair work. While in the course of such extrahazardous employment the president and manager sustains personal injuries due to the negligence of an employee of the second corporation, which had--the first corporation had not--complied with the provision of the Workmen's Compensation Act which affords an employer immunity from suit by a workman injured while in the course of extra-hazardous exploymnet. May the president and manager of the first corporation maintain an action against the second corporation as a third person to recover for the injuries sustained?

Counsel for appellant contend that the foregoing question must be answered in the negative and the action dismissed.

Respondent, who is an electrical engineer and expert electrician, is president and manager of Ace Electric Motor Service, Inc., which corporation is engaged in the business of installing and repairing electrical apparatus. It compensated respondent solely for his services as president and manager and did not pay to him wages or salary for supervision or inspection of repair jobs. The Ace Electric Motor Service corporation did not, prior to respondent's injury in appellant's plant, report to the director of labor and industries that respondent was carried upon its payroll; and it did not pay any premium into the industrial insurance fund on account of its payroll.

Appellant, whose operation of power-driven machinery within its plant brought it within the extra-hazardous employment classification, had complied prior to the time of respondent's injury, with the provisions of the Workmen's Compensation Act which afforded appellant immunity from suit by a workman injured while in the course of that employment.

Respondent was introduced to a Mr. Filk, foreman of appellant's plant or warehouse where the accident occurred, by a representative of a crane manufacturing company, and following that introduction respondent solicited contracts for repair of certain motors on one of appellant's traveling cranes. Prior to December 19, 1940, the date respondent was injured at appellant's plant, appellant entrusted, through respondent, two motors to Ace Electric Motor Service corporation for repair in the shop of the motor service corporation. For those services appellant made payment by checks directly to respondent's employer, the motor service corporation.

A few months prior to date respondent was injured, appellant's foreman (Filk) telephoned to respondent appellant's desire for repair of a certain bridge motor which operated a movable crane in appellant's plant. Respondent called a appellant's plant and advised Mr. Filk respecting the necessary repairs.

Mr. Filk telephoned respondent the evening of December 18, 1940, of the urgent need of immediate repair of the motor. To obviate interruption of plant operation, Mr. Filk and respondent agreed that replacement parts would be installed during the noon hour the day following, December 19, 1940.

The replacement parts, which had been machined in shop of Ace Electric Motor Service corporation, weighed approximately two pounds. Respondent, accompanied by a mechanic from his corporate employer, appeared with those parts at appellant's plant shortly prior to noon December 19, 1940. Mr. Filk, appellant's foreman, moved the crane into its terminus position, shut off the power and went to lunch.

Ace Electric Motor Service corporation's mechanic installed and mounted the replacement parts during the noon hour. Respondent held a flash light, examined the brush holders on the generator, tested the springs to ascertain whether the brushes were clear in the holders and then awaited return of appellant's foreman, Mr. Filk.

On his return from lunch appellant's foreman and respondent decided to conduct the test or make the inspection of the repaired motor. Mr. Filk operated the crane. Respondent, who was on the floor of the catwalk of the crane, was swept off the catwalk and hurled to the warehouse floor twenty feet below the catwalk, by coming into contact with a girder while the crane was passing thereunder. Either the injuries of respondent were due to the negligence of Filk or of respondent or of both Filk and respondent.

The parties stipulated that both the motor service corporation and appellant are within the Workmen's Compensation Act and that appellant has complied with and has never been in default under the act.

There does not exist in this state, by reason of the legislative declaration of public policy (Rem.Rev.Stat. § 7673) a right of action for an injury sustained in an industrial accident arising out of extrahazardous employment, except in those cases where the Workmen's Compensation Act expressly preserves or creates a right of action:

'Declaration of police power. The common-law system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the workman and that little only at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wage worker. The state of Washington, 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 workmen, injured in extrahazardous work, and their families and dependants is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as 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 in this act provided.' Rem.Rev.Stat. § 7673.

In Denning v. Quist, 160 Wash. 681, 685, 686, 296 P. 145, 147, we said, after quoting Rem.Rev.Stat. § 7673: 'This act according to the declaration of legislative policy therein contained and its manifest purpose, should be classed as remedial legislation. Section 1, supra, is comprehensive in its terms and does away with rights of action previously existing in favor of injured workmen, including rights theretofore existing at common law. Rights of action vested by the act in favor of injured workmen ( Robinson v. McHugh, supra [158 Wash. 157, 291 P. 330]) became thereafter purely statutory rights, not common-law rights. The 1927 amendment (chapter 310, Laws of 1927, p. 813), as stated in the case of Robinson v. McHugh, supra, somewhat enlarged the remedy existing under the original act of 1911 in favor of workmen injured by the negligence or wrong of one not in the same employ. This amendment, however, did not re-establish in favor of the injured workman any common-law right, but simply enlarged his existing statutory right. This right being purely statutory, it was competent for the Legislature to limit the same, as was accomplished by the 1929 amendment, supra, and we are satisfied that the correct rule was laid down by this court in the case of Robinson v. McHugh, supra.'

In other words, all phases of the premises are withdrawn from private controversy except as otherwise provided in the Workmen's Compensation Act; and to that end all civil causes of action for personal injuries sustained in an industrial accident arising out of extra-hazardous employment except, we repeat, in those cases where the Workmen's Compensation Act expressly preserves or creates a right of action, and all...