Larson v. Centennial Mill Co.

• Decision Date: 20 September 1905
• Citation: 82 P. 294,40 Wash. 224
• Parties: LARSON v. CENTENNIAL MILL CO. et al.
• Court: Washington Supreme Court

82 P. 294

40 Wash. 224

LARSON v. CENTENNIAL MILL CO. et al.

Supreme Court of Washington

September 20, 1905

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by Emil Larson against the Centennial Mill Company and another. From an order setting aside a verdict for plaintiff against defendant the American Bridge Company of New York and granting a new trial, plaintiff appeals. Affirmed.

Robertson, Miller & Rosenhaupt, for appellant.

Graves Palmer, Brown & Murphy, for respondent.

HADLEY J.

This is an action to recover damages for personal injuries. The defendant Centennial Mill Company is the owner of a flour mill situate in the city of Spokane. The complaint alleges that said defendant was engaged in the construction of certain steel storage wheat tanks adjacent to its mill; that the defendant American Bridge Company of New York carries on the general business of constructing iron and steel structures within the state of Washington, and was engaged in the construction of said tanks as a contractor, subject to the control of its codefendant; that the plaintiff as a structural iron worker was in the employ of the defendants engaged by them to work upon the construction of the tanks and that, while so at work, he was injured by reason of the falling of a platform, owing to the negligence of the defendants. The mill company answered that it entered into a contract with its said codefendant, whereby the latter was to furnish and deliver all material, and was to manufacture and erect the said steel tanks; that the mill company under said contract had neither authority to employ the plaintiff, nor to exercise any supervision over him, nor any other person employed in the erection of the tanks, and that the plaintiff was working for other persons who were independent contractors. The codefendant, the American Bridge Company, also denied that plaintiff was in its employ, and alleged that he was working for other persons, who were independent contractors. The cause was tried before a jury. At the close of the testimony submitted by the plaintiff, the defendants each challenged the sufficiency of the evidence and moved that the case be withdrawn from the jury, and that judgment of dismissal be entered as to each defendant. The motion was granted as to the Centennial Mill Company, but denied as to the American Bridge Company. The latter then submitted its testimony, and at the close of all the testimony renewed its challenge to the evidence, and again moved for judgment of dismissal. The challenge and motion were denied, and the cause was submitted to the jury under instructions. A verdict was returned in favor of plaintiff. The verdict was afterwards set aside on motion for new trial, and a new trial granted. From the order granting the new trial, the plaintiff prosecutes this appeal.

It is assigned that the court erred in granting the new trial. The record shows that the court granted the new trial on the theory that there was no competent evidence showing that appellant was employed by or was working for the American Bridge Company at the time of the accident. It was contended below and is contended here that there was such evidence. We think, however, that the evidence wholly showed that the American Bridge Company sublet the contract for the erection of the tanks to Gerrick Bros., and that appellant was in the employ of the latter. It is our view that there was no competent evidence to the contrary. It is true the court permitted appellant to testify, over respondent's objection, that one of the Gerricks said to him, in effect, that the American Bridge Company was doing the work, and that he (Gerrick) was working for said company. We think the evidence admitted as aforesaid was clearly inadmissible. It was merely testimony concerning the declaration of said Gerrick as to his own agency for the American Bridge Company. This court has repeatedly held that the declaration of an agent is not admissible to establish his agency. Comegys v. American Lumber Co., 8 Wash. 661, 36 P. 1087; Western Security Co. v. Douglass, 14 Wash. 215, 44 P. 257; Gregory v. Loose, 19 Wash. 599, 54 P. 33.

Appellant alleged in his complaint that he was in respondent's employ, and the burden was upon him to show that fact. The testimony, however, showed that respondent was not engaged in the actual erection of the tanks, but that the work was being done under subcontract by Gerrick Bros., and that appellant was in their employ. The contract between respondent and Gerrick Bros. was in writing, was unambiguous, and should have been construed by the court without submission to the jury. Respondent has cited numerous authorities upon this point, but the proposition is so generally established by authority that we shall not reproduce the citations here. Under said contract Gerrick Bros. entered upon and prosecuted the work of erecting the tanks, and were so engaged when appellant, as their employé, was injured. One of the Gerricks so testified at the trial; the other having died from injuries received in the same accident. The Gerricks had sole charge of the erection work, controlled the method of doing it, and employed the men for that purpose, of whom appellant was one. Were they independent contractors? The general test which determines the relation of independent contractor is that he shall exercise an independent employment, and represent his employer only as to the results of his work and not as to the means whereby it is to be accomplished. ...