Mutti v. Boeing Aircraft Co.

• Decision Date: 29 August 1946
• Docket Number: 29919.
• Citation: Mutti v. Boeing Aircraft Co., 172 P.2d 249, 25 Wn.2d 871 (Wash. 1946)
• Parties: MUTTI v. BOEING AIRCRAFT CO.
• Court: Washington Supreme Court

172 P.2d 249

25 Wn.2d 871

MUTTI v. BOEING AIRCRAFT CO.

No. 29919.

Supreme Court of Washington

August 29, 1946

Department 2

Action by Emil Mutti against Boeing Aircraft Company to recover damages for personal injuries sustained by plaintiff when an airplane crashed into the plant where plaintiff was employed.From a judgment dismissing the complaint with prejudice plaintiff appeals.

Judgment reversed, and caused remanded with instructions.

Appeal from Superior Court, King County; Hugh C. Todd, Judge.

Little Leader, LeSourd & Palmer, of Seattle, for appellant.

Brethorst Holman, Fowler & Dewar, of Seattle, for respondent.

JEFFERS Justice.

On or about June 1, 1945, plaintiff, Emil Mutti, instituted an action in the superior court for King county, against Boeing Aircraft Company, a corporation, to recover damages for injuries alleged to have been received by him during the noon rest period on February 18, 1943, when an XB-29 Flying Fortress crashed into the plant of Frye & Company, in Seattle, Washington.

The original complaint was based on the theory of negligence, and alleged facts tending to show that plaintiff was not in the course of his employment at the time he was injured.

Defendant filed an answer to the complaint, in which it denied the claimed acts of negligence.It then set up an affirmative defense in which it is alleged, in substance, that at the time of the accident plaintiff was an employee of Frye & Company, and was engaged in extrahazardous employment, under the Workmen's Compensation Act, Rem.Rev.Stat. § 7673 et seq.; that defednat had contributed to the workmen's compensation fund on all its employees who were engaged in extrahazardous work, including all test pilots; and that defendant was covered by the act.

It was further alleged that on February 18, 1943, Frye & Company was a contributor to the workmen's compensation fund, and that at the time of the accident plaintiff was in the course of his employment and is precluded by the act from maintaining a common law action for negligence.

Plaintiff, by his reply, denied the material affirmative allegations of defendant's answer.

On November 15, 1945, the following stipulation was filed in the cause: 'It is hereby stipulated and agreed by and between the parties hereto, through their respective attorneys, that the plaintiff may amend his complaint by inserting in said complaint the close of paragraph II, paragraph II-A reading as follows:

"II-A

"That at all times herein mentioned there was and now is in full force and effect those certain air traffic rules known as 14 Code Federal Regulations, Part 60 Air Traffic Rules issued May 31, 1938 by the Secretary of Commerce as amended, pursuant to authority contained in Sec. 3,44 Stat. 569, 570,45 Stat. 1404,48 Stat. 1114; also 52 Stat. 984, 985, 1007-1011, 1026, as amended, 49 U.S.C. § 173,49 U.S.C. §§ 425,551-557,672.

"Said air rules were adopted by the Legislature of the state of Washington pursuant to § 2722-5, Rem.Rev.Statutes of the state of Washington.'

and by inserting at the close of paragraph VII, Paragraph VIII reading as follows:

"VIII

"In the event it be found as a fact that the plaintiff was injured by an industrial accident and was injured in the course of his employment, plaintiff further alleges without prejudice to his previous common law right of action, that prior to the commencement of this action and on or about the 10th day of April, 1945, he delivered and caused to be delivered to the department of labor and industries, notice of his election (pursuant to § 7675, Rem.Rev.Stat.) not to take under the workmen's compensation act of the state of Washington but an election to seek a remedy against the Boeing Aircraft Company for all injuries and damages sustained by him on February 18, 1945 when the flying fortress crashed into the Frye packing plant, injuring the plaintiff.

"That a copy of said notice of election is hereto attached, marked exhibit 'B' and by reference made a part of this complaint.'

'It is further stipulated that all the allegations in said paragraphs II-A and VIII may be deemed denied without further answer on behalf of the defendant.'

The cause came on for hearing Before the court and jury on November 26, 1945.At the close of plaintiff's case, defendant interposed the following motion:

'Mr. Brethorst: May it please the court, comes now the defendantBoeing Aircraft Company and moves for a judgment of dismissal of the complaint and a judgment of nonsuit, on the following grounds and for the following reasons:

'One, is that the evidence introduced by the plaintiff does not sustain the allegations of his complaint.

'The second, is that the plaintiff has failed to produce any evidence of negligence whatsoever on the part of the defendantBoeing Aircraft Company or of any of its employees.

'And three, for the reason that the plaintiff was at the time of the accident in the course of his employment and engaged in extrahazardous work; that the defendant's agents were in the course of their employment and engaged in extrahazardous work; that Frye & Company and the defendantBoeing Aircraft Company were contributors to the workmen's compensation fund and were engaged in extrahazardous work; therefore, that the defendantBoeing Aircraft Company is immune to a suit by the plaintiff.

'And four, that even though the defendantBoeing Aircraft Company was not covered by the industrial insurance act of the state, the plaintiff elected to take from the state department of industrial insurance and, therefore, cannot recover against the defendant in this suit.'

On December 10, 1945, the tial court made and entered the following judgment of dismissal:

'Be it remembered that the above-entitled case came on for trial in open court Before the undersigned judge on the 26th day of November, 1945, the plaintiff being present and represented by his attorneys, Messrs. Little, Leader, LeSourd & Palmer, and the defendant being represented by its officers and agents and its attorneys, Messrs. Brethorst, Holman, Fowler & Dewar; and both parties having announced themselves ready for trial, the court heard the evidence submitted by the plaintiff, and after the plaintiff had announced through his attorneys that his case was closed, counsel for defendant moved the court for a nonsuit and a dismissal of the plaintiff's cause of action with prejudice; and the court having heard argument of counsel and having rendered an oral opinion giving its reason for granting the defendant's motion for a judgment of nonsuit, and the court being fully advised in all the facts and the premises, does here and now Order, Adjudge And Decree:

'First.That the motion of the defendant for nonsuit and for a dismissal of the plaintiff's complaint with prejudice be, and the same is hereby, granted.

'Second.That the complaint of the plaintiff be, and is hereby, dismissed with prejudice, and the defendant be, and it is hereby, granted judgment against the plaintiff for its attorneys' fees and disbursements in the sum of Twenty-six and 50/100 Dollars ($26.50).

'Third.The motion of the plaintiff for a new trial be, and it is hereby denied.

'To all of which the plaintiff excepts and his exception is allowed.'

Plaintiff has appealed from the above judgment, and makes the following assignments of error: (1) That the court erred in holding that appellant was in the course of his employment; (2) that the airplane crash was an occupational hazard of appellant; (3) that appellant had not made a timely election under the Workmen's Compensation Act;(4) that respondent's test pilots were covered by the Workmen's Compensation Act;(5) that respondent was not liable in tort or guilty of negligence; (6) in granting respondent's nonsuit and entering judgment of dismissal; and (7) in overruling appellant's motion for a new trial.

At the close of appellant's case, the trial court rendered an oral decision, which has been transcribed and made a part of the statement of facts.In this opinion the trial judge discussed at length the issues presented as they appeared to him, and stated his conclusions, in some instances citing the authority relied upon.

May we say here, in fairness to the trial court, that at the time this case was tried and the judgment entered, the case of D'Amico v. Conguista, Wash.,167 P.2d 157, to which we shall later refer, had not been decided.

It is apparent from the court's oral decision that respondent, as well as appellant, was of the opinion that the primary question to be determined was whether or not appellant, at the time he was injured, was in the course of his employment.We quote from the decision: 'The defendant among other things contends primarily that the plaintiff was an employee of Frye & Company at the time, engaged in extrahazardous employment; that at the particular time of the injury he was in the course of employment for his employer, and is covered by the Workmen's Compensation Act; further, that all of the employees of Boeing Aircraft Company in the plane were likewise covered by the Workmen's Compensation Act; and that, therefore, the plaintiff has no common law action against the third party, the defendantBoeing Aircraft Company.'

The trial court, in answering this question, stated: 'A workman is in the course of employment under the act, in my opinion, during the lunch hour if he remains upon the premises of his employer; and it is immaterial that the employer pays no premiums to the fund for that perion or that he receives no pay therefor.'

The court then cited the cases of Welden v. Skinner & Eddy Corporation,103 Wash. 243, 174 P. 452, andWhite v Shafer Bros. Lumber & Door Co.,165 Wash. 298, 5 P.2d 520, 8 P.2d...