Mathews v. Lord Elec. Co.

• Decision Date: 27 May 1948
• Docket Number: 30188.
• Parties: MATHEWS v. LORD ELECTRIC CO. et al.
• Court: Washington Supreme Court

194 P.2d 379

30 Wn.2d 794

MATHEWS v. LORD ELECTRIC CO. et al.

No. 30188.

Supreme Court of Washington, En Banc.

May 27, 1948

Action by Lawrence F. Mathews against Lord Electric Company and others for personal injuries sustained when plaintiff was struck by automobile. From an order granting the plaintiff a new trial, the defendants appeal.

Order affirmed.

MILLARD HILL, STEINERT, and SIMPSON, JJ., dissenting.

Appeal from Superior Court, Benton County; Ivan Merrick, Judge.

Moulton and Powell and Thomas B. Gess, all of Kennewick, for appellants.

Horrigan and Leavy, of Pasco, for respondent.

SCHWELLENBACH Justice.

This is an appeal from an order granting a new trial in a personal injury action, tried to a jury.

At the close of the plaintiff's case, the defendants moved for a non-suit on the ground that, under the evidence, the plaintiff was guilty of contributory negligence, as a matter of law. The motion was denied. At the close of the case, the defendants moved for a directed verdict on two grounds first, that, under the evidence, the plaintiff was guilty of contributory negligence as a matter of law; and second, that the plaintiff and the agent of the defendants (the driver of the truck who struck the plaintiff) were both engaged in extra-hazardous employment and covered by industrial insurance at the time and place of the accident, and that therefore, under Rem.Rev.Stat. § 7675, the plaintiff was limited to his claim for industrial insurance. This motion was denied.

The jury returned a verdict for the defendants. The plaintiff presented a motion for a new trial. The motion was granted by a general order without the giving of any reasons therefor. Error is assigned in denying the motion for non-suit; in denying the motion for a directed verdict; and in granting the motion for a new trial. We shall discuss only such evidence as we consider pertinent to the claimed errors.

The accident occurred September 2, 1944, at Hanford, Washington which was one of the principal towns in the vast Hanford Atomic Project during the war, comprising many miles in area. At the time in question, there were between 40,000 and 50,000 people in Hanford. Another large town within the project was Richland. There is no direct testimony as to the distance between Hanford and Richland, but it took about an hour to travel between the two communities by bus. In ruling on the motion for a directed verdict, the trial court mentioned the distance between the two towns as thirty miles.

The duPont Company was the general contractor over the Hanford Project. Newberry, Chandler and Lord Company was the electrical subcontractor under duPont. Respondent was employed by duPont as a fire inspector. Alonzo E. Hunter, who drove the truck which struck respondent, was employed by Newberry, Chandler and Lord. Both men were engaged in extrahazardous occupations. At the time in question, both duPont and Newberry, Chandler, and Lord had paid to the state of Washington all required industrial insurance rates. Both men were, therefore, covered by the Workman's Compensation Act, Rem.Rev.Stat. § 7673 et seq., and the sole question is whether or not, at the time of the accident, the respondent was acting within the scope of his employment.

Respondent lived at Hanford, and ordinarily worked there. However, for three or four weeks prior to the accident, he had been assigned to the Richland detail. His regular hours were from 8:00 a. m. to 6:00 p. m. He would take the 6:50 a. m. bus from Hanford, arriving at Richland about 8:00 o'clock.

Friday, September 1, 1944, was the regular weekly pay day. The firemen, stationed at Hanford, were paid at the fire station in Hanford at about a quarter to eight, Before they started to work. Respondent was not paid on that day, being then on the bus enroute to Richland. On Saturday, September 2nd, he went to Richland, as usual, arriving about 8:00 o'clock. He worked until 9:00, and then took the 9:15 bus back to Hanford, arriving at the bus depot about 10:15. The check had been transferred from the fire station to the time office, which was across the street from the bus depot, and it was while going across the intersection that he was struck and injured by the truck.

His purpose in going back to Hanford was to get his pay check, and then wire some money to his wife. When he left Richland, he was not under instructions of the company; he did not have permission to leave, and did not leave word with anybody as to where he was going, although he was required by company regulations to do so. His explanation was that no one was around, and that he was in hurry. Although he did not work any more the day of the accident, September 2nd, he was paid for a full day's work.

Appellants rely upon: Welden v. Skinner & Eddy Corp., 103 Wash. 243, 174 P. 452, where a carpenter working on the construction of a shipbuilding plant was injured while on his way to the toilet. It was held that he was injured within the course of his employment; Burchfield v. Department of Labor & Industries, 165 Wash. 106, 4 P.2d 858, where a stevedore was employed to work with a crew at different ports. We held that he was within the course of his employment while driving his own automobile between ports in order to arrive there ahead of a ship and assist in mooring her; White v. Shafer Bros. Lumber & Door Co., 165 Wash. 298, 5 P.2d 520, 8 P.2d 1119, where an employee of a mill was held to have been injured in the course of his employment. He came to the mill afternoons to get extra work that was sometimes offered, and was injured while seeking information about the work; Hobson v. Department of Labor & Industries, 176 Wash. 23, 27 P.2d 1091, where the workman was sent out with a speeder to get supplies.

Other cases relied upon by appellants are Morris v. Department of Labor & Industries, 179 Wash. 423, 38 P.2d 395, 396, where the injured person had called on a customer at a theater. We said:

'The fact that appellant attended the show in company with the young lady and the fact that he afterwards took her home, we regard as wholly immaterial. The accident occurred after appellant had resumed his homeward trip and upon the very road that he would have taken had his return trip been made immediately after seeing the prospective customer. The particular mission upon which he had been directed contemplated a trip to White Center and return. Although the mission had been temporarily interrupted, it had not been completed at the time that the accident occurred. During the time of his actual return in completion of his mission, appellant was still in the course of his employment.'

In Church v. Department of Labor & Industries, 179 Wash. 443, 38 P.2d 234, 236, we held:

'From the record Before us we hold that the trial court properly found that Mr. Church, at the time he was injured, was on his way to his home to procure an applicance with which he intended to immediately return to the bridge, the appliance to be then used, if possible, in making the proper and necessary repair. It follows that the deceased, at the time he was injured, was in the course of his employment ( Hobson v. Department of Labor and Industries, 176 Wash. 23, 27 P.2d 1091), and that the trial court was justified in finding that on the record, it should be held that the statutory presumption in favor of the joint board had been overcome.'

In MacKay v. Department of Labor & Industries, 181 Wash. 702, 44 P.2d 793, 795, a workman employed by the hour to operate his own tractor was injured while taking a part of the engine to a garage for repairs. We held that he was within the course of his employment, saying:

'The caterpillar became disabled on the job. The job was to be done. The claimant did the natural and proper thing in taking the disabled part at once to the nearest place where it could be repaired to enable him, as speedily as possible, to do the work for which he was hired. We think this was incidental to his employment, even though the aggregate amount of his pay was to be determined by the time during which the machine was in operation. The compensation of $2 an hour took into account, of course, wear and tear as well as loss of time and expense involved in making the casual repairs necessarily incidental to its operation.'

In all of the cases relied upon by appellants, the facts were clear, that at the time of the accident, the injured workman was within the scope of his employment.

Respondent relies upon Hill v. Department of Labor and Industries, 173 Wash. 575, 24 P.2d 95. There, the plaintiff, a street car operator, took his car from the barn and proceeded upon his regular schedule. Passing the post office, he left his car for the purpose of deposition a letter in a public mail box in front of the building. While crossing the street on his return to his car, he was struck and injured by an automobile. In holding that the workman was not within the scope of his employment, we quoted from Hama Hama Logging Co. v. Department of Labor & Industries, 157 Wash. 96, 288 P. 655, as follows:

"It follows that an employee, injured at a time when he is doing something solely for his own benefit or accommodation and not while engaged in or furthering his employer's business, is not injured 'in the course of his employment."'

And, from Hoffman v. Hansen, 118 Wash. 73, 203 P. 53, 55:

'Situated and engaged as he was at the time of the accident, it cannot be said, upon a liberal construction of the act, that he was upon the premises or at the plant of his employer. He was upon the sidewalk and street in a sense entirely disassociated from the street railroad and its service. Nor can it be said that while thus away from the plant of his employer he was in the course of his...