Latimer v. Western Machinery Exchange

• Decision Date: 13 March 1952
• Docket Number: No. 31606,31606
• Court: Washington Supreme Court
• Parties: LATIMER, v. WESTERN MACHINERY EXCHANGE.

Page 155

40 Wn.2d 155

241 P.2d 923

LATIMER, v. WESTERN MACHINERY EXCHANGE.

No. 31606.

Supreme Court of Washington, Department 2.

March 13, 1952.

James M. Stewart, Donn F. Lawwill, Aberdeen for appellant.

L. B. Donley, Aberdeen, for respondent.

HILL, Justice.

In an action for personal injuries, we find ourselves primarily concerned with the validity of the defense that the injured man had no cause of action because he was engaged in an extrahazardous occupation and was or could have been under the protection of the Washington Workmen's Compensation Act, and that the defendant, even if a tort-feasor, was an employer under that act, with all premiums paid. This defense is based upon what is called the immunity provision of the Workmen's Compensation Act. Rem.Rev.Stat. (Sup.) § 7675, gives to the workman who is under the act and who is injured by the negligence or wrong of another not in the same employ, the right to elect whether to take under the act or to seek a remedy against the person whose negligence or wrong caused his injury, with the proviso '* * * That no action may be brought against any employer or any workman under this act as a third person if at the time of the accident such employer or such workman was in the course of any extra-hazardous employment under this act. * * *'

Factually, the circumstances are that Willard Latimer, Elmer M. Johnson and Lloyd Pratt had discussed the possibility of conducting a logging operation. Pursuant to their discussions, they located some timber owned by a Mr. Turk, who agreed to sell to them on a stumpage basis; and for at least two or three days prior to May 11, 1948, perhaps longer, they were engaged in felling and bucking up trees to clear a site for a donkey engine and around a spar tree. While there is some question as to the status of Pratt while this work was being done, it is undisputed that Latimer and Johnson had a business relationship of some kind and expected to be compensated for their labor from the profits of the logging operation.

May 11, 1948, the three of them, together with Latimer's father and Arvid Berg, went to the place of business of the Western Machinery Exchange, hereinafter called 'Western,' and there purchased a donkey engine, Johnson making the down payment of two hundred dollars. With the aid of Western's men and equipment, the donkey engine was loaded onto Johnson's truck and trailer for transportation to the site cleared for it. During the process of getting it ready for transportation, Latimer was severely injured by what is referred to as a 'straddle chain,' which fell from a hook attached to a traveling crane. The accident occurred on the premises of Western and the crane and chain were part of its equipment, but there is no certainty as to who placed the chain on the hook from which it became dislodged.

Alleging that negligence by Western was a proximate cause of his injuries, Latimer commenced this action.

The defense was three-fold: (1) no primary negligence; (2) contributory negligence; (3) plaintiff had no right of action against the defendant because the plaintiff could have been under the Workmen's Compensation Act if he had so desired, and the defendant was under that act and had paid all premiums due thereunder. The trial court rejected the third defense and submitted the case to the jury on the issues of negligence and contributory negligence. After a verdict for the plaintiff for thirty-five hundred dollars, the trial court granted a motion for judgment notwithstanding the verdict and entered a judgment of dismissal. It appears from the memorandum decision that the judgment n. o. v. was granted because no negligence by the defendant had been established. The plaintiff appeals from the order granting judgment n. o. v. and the resultant dismissal.

We are of the opinion that, on the issues of negligence and contributory negligence, there was sufficient evidence to go to the jury, but we will not discuss those issues because we are convinced that, even if there was negligence by Western's employees, the plaintiff, appellant here, was not entitled to maintain the action.

It is admitted that the respondent was an employer in the course of extra-hazardous work under the act at the time of appellant's injury; that respondent was covered by the Workmen's Compensation Act, was a contributor to funds established thereunder, and was not in default. It is likewise conceded that it is the law that when a workman is or could be entitled to benefits under the Workmen's Compensation Act for an injury sustained by him, he has no cause of action against an employer for negligence causing that injury if that employer was in the course of extrahazardous employment under the act at the time of the injury. Koreski v. Seattle Hardward Co., 17 Wash.2d 421, 135 P.2d 860. The reasons one who is not but could be eligible to receive benefits under the Workmen's Compensation Act cannot maintain an action against an employer who is covered by the act, are well stated in the Koreski case and will not be repeated here.

The question here presented is whether the status of the appellant was such that, if he had so desired, he could have qualified for benefits under the Workmen's Compensation Act.

The definition of a 'workman' under that act is as follows: 'Workman means every person in this state, who is engaged in the employment of any employer coming under this act whether by way of manual labor or otherwise, in the course of his employment * * *.' Rem.Rev.Stat. (Sup.) § 7675.

It is our opinion that appellant does not come directly within that definition, but that he does come within the definition of an 'employer,' which is as follows: 'Except when otherwise expressly stated, employer means any person, body of persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all while engaged in this state in any extra-hazardous work, by way of trade or business, or who contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen, in extra-hazardous work.' Rem.Rev.Stat. (Sup.) § 7675.

The act provides that under certain conditions individual employers, as workmen, may receive benefits thereunder: 'Any individual employer or any member or officer of any corporate employer who shall be carried upon the payroll at a salary or wage not less than the average salary or wage named in such payroll and who shall be injured, shall be entitled to the benefit of this act as and under the same circumstances, and subject to the same obligations, as a workman: Provided, That no such employer or that beneficiaries or dependents of such employer shall be entitled to benefits under this act unless the director of labor and industries prior to the date of the injury has received notice in writing of the fact that such employer is being carried upon the payroll prior to the date of the injury as the result of which claims for a compensation are made.' Rem.Rev.Stat. (Sup.) § 7675.

Hence, if the appellant is to be deprived of his right of action against the respondent, it must be on the hypotheses, first, that he was an individual employer; and, second, that he was such an individual employer as could have qualified for the benefits of the act as a workman.

Appellant attacks the first hypothesis on two grounds, contending: (1) To be an employer under the act one must have employees, and the appellant and his associates had no employees; and (2) to be an employer under the act one must be engaged in extrahazardous work 'by way of trade or business,' and appellant and his associates were not engaged in loading and transporting machinery by way of trade or business, and, further, had not yet commenced logging as a trade or business.

It is our view that, so far as the first ground of attack is concerned, appellant does not correctly interpret the law. With reference to the second, while we agree with his statement of the law, we do not agree with his application of the law to the facts of this particular case.

Answer to appellant's first attack on Hypothesis 1. Our conclusion that an individual employer under the Workmen's Compensation Act need not have any employees is based upon the definition of 'employer' as above set forth. That definition is in two parts; under '' there is no suggestion that it is necessary to have employees to be an employer within the purview of the act. This is made quite clear by a comparison of definitions of 'employer' in the statutes of other states.

The Oklahoma and New York statutes use practically identical wording, and say that an employer is one who is 'employing workmen in hazardous employments'. 64 McKinney Consol.Laws of N.Y., c. 67, Workmen's Compensation Law, Art. I, § 2; see, also, Okla.Stat.1951 Title 85, § 3. In many states the definition of 'employer' includes the element of having a person or persons in service. Thus, in California, 'employer' means 'Every person * * * which has any natural person in service.' Deering's Calif.Codes, Labor, § 3300. In Connecticut and Indiana, to be an employer one must be 'using the services of another for pay'. Conn.Gen.Stat. (1951 Supp.), § 1308b; 8 Burns' Ind.Stat. § 40-1701. In Michigan and Montana, to qualify as an employer, one must have a 'person in service' under a 'contract of hire, express or implied, oral or written.' 12 Mich.Stat. (1950 Rev.), § 17.145, Comp.Laws 1948, § 411.5; 6 Mont.Rev.Code, § 92-410. And in Oregon, an employer under the Workmen's Compensation Act is one 'who shall contract for and secure the right to direct and control the services of any person'. 7 Ore.Comp.Laws, § 102-1703.

The phrases quoted above are not included in the definition of 'employer' in the Washington statute, and that omission of an element appearing in one form or another in practically every other workmen's compensation statute evidences an intent in this state to bring everyone engaged...