Lopez v. Allen

• Decision Date: 06 August 1975
• Docket Number: No. 11660,11660
• Citation: 538 P.2d 1170,96 Idaho 866
• Parties: Julio LOPEZ, Sr., Individually and as parent of Julio Lopez, Jr., an infant and Julio Lopez, Jr., Individually, Plaintiff-Appellants, v. Rulon ALLEN, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1170

538 P.2d 1170

96 Idaho 866

Julio LOPEZ, Sr., Individually and as parent of Julio Lopez, Jr., an infant and Julio Lopez, Jr., Individually, Plaintiff-Appellants, v. Rulon ALLEN, Defendant-Respondent.

No. 11660.

Supreme Court of Idaho.

Aug. 6, 1975.

R. M. Whittier, Pocatello, for plaintiff-appellants.

Hugh C. Maguire, Jr., Pocatello, for defendant-respondent.

McFADDEN, Justice.

Plaintiffs-appellants Julio Lopez, Sr., and his son, Julio Lopez, Jr., instituted this action against defendant-respondent, Rulon Allen, to recover damages for personal injuries sustained by Julio Lopez, Jr., in an accident on Allen's farm while he was in Allen's employ. At trial, the jury returned a special verdict finding that Julio Lopez, Jr., and Allen each were negligent in the amount of fifty percent. Judgment was entered in accordance with the verdict. The plaintiffs appeal from that judgment. We reverse and remand for a new trial.

Julio Lopez, Jr. (hereinafter Julio), who at the time of the accident was 15 years of age, was employed with other members of his family by Allen to assist in the harvest of Allen's potato crop. For two and one-half days Julio worked on the potato harvester in the fields; then, for a day and a half prior to the accident, he worked in the potato cellar where the potatoes were stored on the farm. While he was working in the cellar on September 29, 1972, he was injured when his leg was pinned between a potato piler and a tractor drawn scraper unit.

The potatoes were moved from the field to the cellar by truck. At the cellar the trucks were unloaded by means of a conveyor belt system; the potatoes were moved by a conveyor called a 'pup' from the truck to the piler which piled the potatoes in the cellar. Several employees, including Julio, would remove dirt and other debris from the potatoes as they moved down the 'pup'. Julio, his brother, Epifanio, and his sister, Lorie, were assigned the additional task of removing dirt and debris from the cellar after each truck had been unloaded. Julio and Lorie would rake the debris into piles and then Epifanio, who at the time was 13 years of age, would remove the debris from the cellar with a tractor mounted scraper. The scraper unit was a blade mounted on the rear of the tractor which could be raised or lowered by means of the tractor's hydraulic system.

The accident occurred when Epifanio was backing the tractor into position to move a pile of debris. Epifanio backed the tractor in position; as he was attempting to shift into forward gear so that the tractor could move the debris, the tractor moved backwards a distance of seven or ten feet pinning Julio's leg between the scraper and the piler resulting in his injuries. Julio testified that he was raking debris from underneath the piler and that he had his back to the tractor when the accident occurred.

The first issue raised by this appeal is whether the trial court erred when it instructed the jury in accordance with certain provisions of the Employers' Liability Act (I.C. § 44-1401 et seq.). The act provides:

'Every employer of labor in or about a * * * warehouse, * * * shall be liable to his employee or servant for a personal injury received by such servant or employee in the service or business of the master or employer within this state when such employee or servant was at the time of the injury in the exercise of due care and diligence in the following cases:' I.C. § 44-1401. (Emphasis added.)

The act then enumerated specific instances where the employer is liable to his employee for personal injuries. The court, finding that the cellar was a warehouse within the purview of the act, instructed the jury in accordance with the act on the issues of assumption of the risk (I.C. § 44-1401(6)), contributory negligence (I.C. § 44-1402), and the fellow servant doctrine (I.C. § 44-1403). Giving of these instructions was assigned as error.

The respondent submits that the legal definition of a warehouse turns upon the use to which a facility is put; he reasons that since the cellar is used for the storing of potatoes the cellar should be considered to be a warehouse. However, we reject this rationale.

The Employers' Liability Act must be considered in conjunction with the Workmen's Compensation Act so as to avoid, if possible, any conflicts in the application of the acts to the employee's right to recover for accidental injuries. See, as to the statutory construction: Sampson v. Layton, 86 Idaho 453, 387 P.2d 883 (1963); 73 Am.Jur.Statutes § 186 (1974). The Workmen's Compensation Act provides a statutory scheme for compensating the working man for on the job injuries without regard to fault. I.C. § 72-201. Employment in agricultural pursuits is exempted from coverage under the act unless the employer elects coverage. I.C. §§ 72-212(8), 72-213. When considering the question of whether the injured party or the employer was engaged in 'agricultural pursuits' at the time of the injury, this court has looked to the general character of the work performed rather than to the specific task at which the employee was injured or to the place of injury.

'In Mundell v. Swedund, this court recognized 'the rule that the occupation or pursuit as a whole is the controlling factor, in determining whether an employee is engaged as a farm laborer or in an agricultural pursuit, rather than the immediate task being performed or the place of performance of such task. " Bartlett v. Darrah, 76 Idaho 460, 462, 285 P.2d 138, 139 (1955), quoting Mundell v. Swedlund, 59 Idaho 29, 36, 80 P.2d 13, 16 (1938).

See, Hubble v. Perrault, 78 Idaho 448, 304 P.2d 1092 (1956). This same reasoning is applicable to determine whether an employer is engaged in an occupation within the purview of the Employers' Liability Act. Otherwise, a conflict in the application of the two acts could result. ¹ The applicability of the Employers' Liability Act to a specific cause of action arising from a personal injury must be determined by reference to the general character of the employer's business and the work which the employee was hired to perform rather than to the specific task being performed or the place of performance.

Under the facts of this case, there is no question but that Julio was employed in the harvest of crops produced on Allen's farm. There was no evidence that Allen was storing crops for others in the cellar or that the cellar was used for any purpose other than storing Allen's potato crop. Julio's cause of action arose not from an injury received in a warehousing operation, but from an injury received in a farming operation. Thus, it is the conclusion of this court that Julio's cause of action is not within the purview of the Employers' Liability Act.

A ruling by this court that the trial court erred in finding that Allen's potato cellar was a warehouse within the provisions of the Employers' Liability Act is not sufficient by itself to sustain a reversal. If the instructions given were a correct statement of the relevant common law doctrines, then we cannot say that the trial court's ruling, by itself, prejudiced the substantial rights of the appellants. See Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974). Thus, we must examine the instructions given on assumption of risk, contributory negligence, and the fellow servant doctrine.

Regarding assumption of the risk, the trial court instructed the jury that an employee, by his employment, shall be presumed to have assented to the necessary risks of the employment. The instruction then defined what constituted the necessary risks of employment. This instruction is defective in that it made no provision for the jury to consider Julio's knowledge of the risks which he was presumed to assume. This court has held that 'the defense of assumption of the risk in an employer-employee relationship requires that the employer establish that his employee knew the danger involved, and that the employee understood and appreciated the risk therefrom and voluntarily exposed himself thereto'. Meissner v. Smith, 94 Idaho 563, 567, 494 P.2d 567, 571 (1972), quoting Otto v. Mell, 94 Idaho 109, 110, 482 P.2d 84, 85 (1971). Accord, Johnson v. Stanger, 95 Idaho 408, 510 P.2d 303 (1973). The instruction given directed the jury to presume that Julio understood and appreciated the risks of his employment as well as to presume that he voluntarily exposed himself to the risks of his employment. It was error to give this instruction under the facts of this case.

The jury was also instructed pursuant to I.C. § 44-1402 that '(t)he employer shall not be liable to an employee if the employee knew of the defect or negligence causing the injury, or by exercise of reasonable care could have known of the defect or negligence causing the injury and failed within a reasonable time to give notice thereof to the employer, or to some person superior to himself engaged in the service or employment of the master or employer who has entrusted to him some general superintendence, unless the employer or such superior already knew of such defect or negligence'. Case law is well settled that the defense of contributory negligence involves two elements:

'* * * an injured person's knowledge of the physical characteristics of the offending instrumentality or condition does not of itself constitute contributory negligence. It is the appreciation of, or the opportunity to appreciate the peril in an instrumentality or condition, rather than the knowledge of the physical characteristics that bars a plaintiff from recovery for negligence.' ² Hooten v. City of Burley, 70 Idaho 369, 377, 219 P.2d 651, 654 (1950).

Accord, 53 Am.Jur.2d Master and Servant § 242 (1970); 56 C.J.S. Master and Servant § 432 (1948). The instruction given failed to instruct the jury that the employer must establish that Julio recognized, or in the exercise of due care, should have recognized the peril involved in working near a tractor. Thus,...