Parker v. Pantages Theater Co., 20147.

• Decision Date: 01 April 1927
• Docket Number: 20147.
• Citation: 254 P. 1083,143 Wash. 176
• Parties: PARKER v. PANTAGES THEATER CO.
• Court: Washington Supreme Court

254 P. 1083

143 Wash. 176

PARKER v. PANTAGES THEATER CO.

No. 20147.

Supreme Court of Washington

April 1, 1927

Department 2.

Appeal from Superior Court, Spokane County; Carey, Judge.

Action by John Parker against the Pantages Theater Company From a judgment for plaintiff, defendant appeals. Affirmed.

Post &amp Russell, of Spokane, and Ryan & Desmond, of Seattle, for appellant.

Robertson & Paine, of Spokane, for respondent.

MACKINTOSH C.J.

The appellant operates a theater in the city of Spokane, and, on August 12, 1925, there was attached to the front of the building a large vertical, electric sign, and on that day the appellant desired to have the light globes in the sign washed, and employed the respondent, an inexperienced man, to assist in doing the work. It was necessary for a scaffold to be made and furnished by the appellant, and on this scaffold the respondent was standing when it broke. He fell some 20 feet onto a cement roof, and was as a result permanently injured, and this action has been brought for the recovery of damages which he has sustained. The trial resulted in a verdict and judgment in the respondent's favor, and on this appeal the many assignments of error present but three questions for determination.

1. It is strongly urged that the respondent is not entitled to recover, by reason of the fact that he was an employee engaged in an extrahazardous occupation, and that his only source of recompense is under the Workmen's Compensation Act. Appellant says that, having paid premiums into the state fund on its stage hand employees, it has brought itself within the operation of the act. This position, however, is not tenable, for the reason that, although ordinarily the washing of this sign was assigned to the appellant's stage hands, the respondent was not such a stage hand, having been employed only for this one particular piece of work of short duration. The question is whether the respondent was engaged in an extrahazardous occupation at the time he received his injury. Whether an occupation is in law extrahazardous or not depends upon whether the act has so declared it, or it has been so found by the industrial insurance department. Section 7674, Rem. Comp. Stat. Under section 7676, Rem. Comp. Stat. 1923 Supplement, various industries are classified as extrahazardous, and in that classification the only ones which can approximate the occupation in which the respondent was engaged are those of 'window washing' and 'washing or cleaning buildings'--both appearing in class 5-1--or theater stage employees in class 45-1. Unless the respondent's occupation comes within one of these descriptions, the court has no right to make a new classification by interpretation for it was the intention of the act, as expressed in section 7674, to embrace all hazardous works and occupations in the enumeration made in the statute. We have already noted that the respondent cannot be classified as a theater stage employee, for he was not engaged in the ordinary occupation of such an employee; nor can he be classed as a window washer, for he was not engaged for or in that occupation. The only remaining classification is that of washing and cleaning buildings, and signs such as the one upon which the respondent was at work are not ordinarily parts of the buildings to which they are attached ( Ballard v. Alaska Theatre Co., 93 Wash. 655, 161 P 478); nor are they ordinarily washed by the owners of the building. Where they are to receive cleaning or repairs, the work is done by the tenant who has erected the signs and who owns them. It clearly was not the intention of the Legislature to classify such incidental work done by the owners of signs as a separate extrahazardous occupation, for it is well known that there is a distinct employment of persons engaged in washing and cleaning buildings, and that this work is usually done by independent concerns which are engaged exclusively in that and similar work. It was clearly the intention of the Legislature, in classifying that as an extrahazardous occupation, to cover those engaged in that occupation. Moreover, by specifying building washing and cleaning, and making a separate classification of window washing, it is evident that the Legislature did not intend to include the cleaning and washing of signs, otherwise it would have also made a separate classification therefor. We cannot hold that the cleaning of an advertising sign comes within the classification of washing and cleaning buildings. While it is true that the work of cleaning these signs may be dangerous, it has not been recognized either by the Legislature or by the department as constantly and inherently so, and, until that is done, the employee engaged in that work must seek his compensation, not under the act, but under his common-law right. This has been the rule announced many times by this court, and finding expression first probably in Guerrieri v. Industrial Insurance Commission, 84 Wash. 266, 146 P. 608, in this language:

'The manifest intent of the law is not to cover and compensate for accidents generally, but to cover accidents occurring in those employments or occupations which are specifically classed as, or which may be found by the commission to be, extrahazardous.'

In that case an employee was injured while operating a passenger and freight elevator, and, although concededly a dangerous occupation, not having been classified as extrahazardous, the employee could not take under the act.

In Remsnider v. Union Savings & Trust Co., 89 Wash. 87 154 P. 135, Ann. Cas. 1917D, 40, the employee was a janitor who was injured while engaged in cleaning the walls of an elevator shaft wherein an elevator was operated by electrical power. This...