Pearson v. Aluminum Co. of America

• Decision Date: 31 July 1945
• Docket Number: 29597.
• Citation: Pearson v. Aluminum Co. of America, 161 P.2d 169, 23 Wn.2d 403 (Wash. 1945)
• Parties: PEARSON v. ALUMINUM CO. OF AMERICA and seven other cases.
• Court: Washington Supreme Court

161 P.2d 169

23 Wn.2d 403

PEARSON v. ALUMINUM CO. OF AMERICA and seven other cases.

No. 29597.

Supreme Court of Washington

July 31, 1945

Department 1.

Actions by Noah Pearson, by Roy H. Sutton, by Rudolph Haltiner, by George L. Dickerson, by Emil Abegglen, by Walter L. Overton by Ralph C. Wilson, and by Dan Waring against the Aluminum Company of America, for injuries sustained while employed by defendant.From judgments for defendant, plaintiffs appeal.

Affirmed.

MILLARD J., dissenting.

Appeal from Superior Court, Clark County; Charles W. Hall, judge.

McMullen & Snider, of Vancouver, for appellants.

Schaefer & Hall, of Vancouver, and James Arthur Powers, of Portland Ore., for respondent.

JEFFERS Justice.

On or about April 6, 1944, eight actions were instituted against Aluminum Company of America, in the superior court for Clark county, for the purpose of recovering damages against defendant for injuries claimed to have been sustained by the several plaintiffs resulting from the negligence of the operator of a bus owned by defendant, in which plaintiffs were riding.The names of the respective plaintiffs, together with the superior court numbers of the cases, are as follows Noah Pearson, No. 20277;Roy H. Sutton, No. 20278;Rudolph Haltiner, No. 20279;George L. Dickerson, No. 20280;Emil Abegglen, No. 20281;Walter L. Overton, No. 20282;Ralph C. Wilson, No. 20465;Dan Waring, No. 20466.The cases were, by stipulation of the parties and on order of the court, joined for the purpose of trial.

In view of the fact that judgment was entered in favor of defendant in each case on the pleadings as amended by oral stipulations, we deem it necessary to set out the pleadings quite fully.We take as typical of all the cases the pleadings, orders and judgment filed in the Pearson case, No. 20277.

The complaint alleged as follows:

Paragraph 1.That the defendant is a corporation authorized to do and doing business under the laws of the state of Washington.

Paragraph 2.That on or about January 5, 1944, defendant was the owner of a Chevrolet bus, being used by the company in the transportation of passengers to and from Ridgefield and other points in Clark county.

Paragraph 3.That on the morning of January 5, 1944, plaintiff was a passenger riding in such bus and being transported from the town of Ridgefield to the plant owned and operated by defendant, located near Vancouver, Washington.

Paragraph 4.That the bus was proceeding toward Vancouver in a southerly direction over a public highway known as the Vancouver-Sara highway; that a short distance south of Sara store the highway makes a turn to the left; that the operator of the bus drove the same off the highway and into a ditch, as a result of which the bus overturned; that at and immediately prior to the time of the accident, the bus was being operated in a grossly careless, negligent and unlawful manner in the following particulars: (Then follows the claimed acts of negligence on the part of the operator of the bus.)

Paragraphs 5, 6, 7 and 8 set forth the injuries claimed to have been suffered by plaintiff, together with the expense incurred and loss of earnings suffered by plaintiff as the result of the accident.

Plaintiff asked for judgment against defendant in the sum of $2,995.

The Aluminum Co. answered the complaint, denying, admitting and alleging as follows: Admitted that it was the owner of a Chevrolet bus which was used to transport its employees from Ridgefield and vicinity to their work at defendant's plant near Vancouver; denied the other allegations of paragraph 2 of the complaint; denied that plaintiff was riding as a passenger in the bus, as alleged in paragraph 3 of the complaint; but admitted that he was being transported in defendant's bus on the date alleged from and to the respective points alleged.

The foregoing denials of the allegations of paragraphs 2 and 3 of the complaint only go to the status of plaintiff, that is, as to whether he was in fact a passenger in the legal sense, or a guest, or an employee and being transported as such.

Defendant denied the allegations of paragraph 4, except that it admitted that an accident occurred in the vicinity alleged, and that the bus overturned.

Defendant denied the allegations of paragraphs 5, 6, 7 and 8, except it admitted that plaintiff sustained some injury, and that plaintiff was an employee of defendant and lost some time from his work.

As a first, further and separate answer and defense, defendant alleged:

Paragraph 1.That it is a corporation, engaged in the business of manufacturing aluminum near Vancouver, Washington; that it employs a large number of employees at its plant; that its plant is engaged in the manufacture of a critical warmaterial; that as an inducement to employees to work at its plant, defendant, as an incident to their employment, has furnished transportation to such employees as care to avail themselves of it, from points adjacent to their homes to the plant, and from the plant back to the points near their respective homes, on regularly scheduled trips from such points to the plant, and from the plant back again; that defendant does not operate the bus referred to as a public carrier; that no one has ever paid or been charged any fare for being carried on the bus involved, nor on any other similar bus operated by defendant; that the purpose for which the bus is used is to transport employees to and from work on regularly established routes.

Paragraph 2.On and prior to January 5, 1944, plaintiff was employed by defendant, and worked for defendant at its plant, and as such employee, boarded defendant's bus at Ridgefield, along with other employees, to be transported to defendant's plant, where he was to perform his work that day; that in riding in the bus plaintiff followed the same procedure he had followed prior thereto in being transported by defendant to its plant, free of any charge or payment other than his work to be performed that day for defendant.

[23 Wn.2d 407] Paragraph 3.While the bus was proceeding from Ridgefield to defendant's plant, the operator, without fault on his part, met with an accident and the bus overturned, and if plaintiff was injured as alleged, his sole right to recover for any such injury or damage sustained is by proper application to the industrial insurance division of the department of labor and industries of the state of Washington; that the work in which plaintiff was engaged is considered hazardous, within the meaning of the workmen's compensation act of the state of Washington, and defendant and plaintiff were operating under and subject to the provisions of that law.

For a second, further and separate answer and defense, defendant alleged: That on January 5, 1944, an accident occurred when one of its buses, in which plaintiff was riding, overturned at a point between Ridgefield and defendant's plant located near Vancouver; that plaintiff was riding in the bus without paying any fare to defendant for such transportation, and solely by reason of his being an employee at defendant's plant; that the status of plaintiff in defendant's bus at the time and place of the accident was either that of guest or employee, and in either event he would have no basis for recovery herein.

Plaintiff replied to the first, further and separate answer and defense, admitting or denying the allegations therein contained, and alleging as follows: Admitted paragraph 1, except plaintiff denied that portion thereof beginning with the word 'that' on line 17 down to and including all of line 20, and that such transportation was an incident to plaintiff's employment.While we find no word 'that' on line 17 of defendant's first affirmative defense, we do find on line 14 such word, and we assume plaintiff's denial goes to the following allegation beginning with the word 'that' on line 14, and ending with line 20: 'That as an inducement to employees to work at its said plant, defendant, as an incident to their employment, has furnished transportation to such employees as care to avail themselves of it from points adjacent to their homes to the plant, and from the plant back to said points near their respective homes, and for this purpose defendant operated a bus, among others, on regularly scheduled trips from such points * * *.'

Plaintiff admitted that on and prior to January 5, 1944, he was employed by defendant, and worked for defendant at its plaint; denied the other allegations contained in paragraph 2 of the first affirmative defense.

Plaintiff denied all the allegations contained in paragraph 3 of the first affirmative defense.

Plaintiff then alleged in paragraph 4 of his reply as follows: 'That prior to the above litigation defendant did not regard said employee as being under the workmen's compensation act of the state of Washington; that no report was made to the department of labor and industries covering said transportation or said hours and no remittance was made on account thereof.'(Italics ours.)

Plaintiff admitted that on January 5, 1944, an accident occurred when one of defendant's buses, in which plaintiff was riding, overturned at a point between Ridgefield and the plant of defendant located near Vancouver; denied the other allegations contained in paragraph 1 of defendant's second affirmative defense.

Plaintiff then made the further and following allegations in his reply That at all times material, defendant has been engaged in the processing of aluminum to be used in defense, war and other activities; that on and prior to the date of the accident the demand for such produce greatly exceeded the supply thereof; that at that time there were many other war industries located in the vicinity of...