Perry v. Beverage

• Decision Date: 20 October 1922
• Docket Number: 17165.
• Citation: 121 Wash. 652,209 P. 1102
• Court: Washington Supreme Court
• Parties: PERRY v. BEVERAGE et al.

209 P. 1102

121 Wash. 652

PERRY v. BEVERAGE et al.

No. 17165.

Supreme Court of Washington

October 20, 1922

Department 2.

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by John Perry against James Beverage and another. From a judgment for plaintiff, defendants appeal. Reversed as to the defendant Webb Logging & Timber Company, with directions, and affirmed as to the defendant Beverage.

Shorett McLaren & Shorett, Edward R. Taylor, J. Speed Smith, and Henry Elliott, Jr., all of Seattle, for appellants.

Meyers & Couden and Alex Mackel, all of Seattle, for respondent.

MAIN J.

The purpose of this action was to recover damages for personal injuries. The defendants are the Webb Logging & Timber Company, a corporation, and James Beverage, its superintendent or foreman. Separate answers were interposed by the defendants. In each there were certain admissions and denials and an affirmative defense, which was to the effect that, if the plaintiff sustained injuries, they were due to his own fault in making an assault upon the defendant Beverage, and were inflicted as a matter of self-defense on the part of this defendant. The affirmative defenses were denied by a reply. The cause was tried to the court and a jury. At the conclusion of the evidence, each of the defendants presented a motion for a directed verdict. These motions were overruled, and, the cause being submitted to the jury, a verdict was returned in favor of the plaintiff in the sum of $1,850. After the return of the verdict each of the defendants made a motion for judgment notwithstanding the verdict. These motions were likewise overruled, and judgment entered upon the verdict, from which both of the defendants appeal.

The facts necessary to an understanding of the questions presented may be summarized as follows:

On the 17th day of December, 1920, the appellant Webb Logging &amp Timber Company was operating a logging camp near Duckabush in Jefferson county. The appellant Beverage was the foreman or superintendent in charge of the camp. The respondent Perry was employed in the camp as a bucker. On the morning of the day in question, Perry gave notice to Beverage that he desired to quit his employment that evening. Not having any scaler at the time, Beverage requested one Earl McArdle, an employee in the Forest Service of the United States, then at the camp, to scale the logs which Perry had bucked, for which he was entitled to compensation. Perry worked during that day; the exact time of his ceasing to labor does not appear. That evening, at about 6:30 o'clock, Perry came to the office of the company, which was at the camp, and entered into a controversy with McArdle over the scale that had been turned in, Perry claiming that the scale was too small, and McArdle insisted that it was accurate and properly made. At this time Beverage, the superintendent, and two or three other persons, were in the office. After the discussion between Perry and McArdle had continued for some minutes, Beverage got up from a chair in which he was sitting, and, moving over to near where Perry was standing, said to him that 'that will be enough,' or something to that effect; Perry replying by directing Beverage to go back and sit down Some further conversation took place between Perry and Beverage, during which Beverage picked up an enameled water pitcher and struck Perry a violent blow on the left side of the face, seriously injuring him. The testimony as to whether Beverage at the time was acting in self-defense or whether it was a deliberate or willful assault is directly in conflict. The present action was brought by Perry to recover damages for the injuries which he sustained on this occasion.

The questions to be determined will be considered in what appears to be their natural sequence. The first question is whether Perry, at the time he was struck, had ceased to be an employee of the logging company. From the facts stated, it appears that he gave notice on the morning of that day that he was intending to quit work. After he had his evening meal at the camp, and at about the hour of 6:30 p. m., he went to the office for the purpose of ascertaining the amount of the scale and receiving his compensation. Under the authorities there can be but little, if any, question but what the relation of employer and employee had not been terminated at the time. In Pace v. Appanoose County, 184 Iowa, 498, 168 N.W. 916, it was said:

'The test in determining whether the injury has arisen in the course of employment is then said to be where the deceased, 'though actually through with the work, was still within the sphere of the work, or was doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time.' The decisions of the courts and commissions are uniform in holding that if an employee has reached his employer's premises on his way to work or is still on the premises on his way home and meets with an accident, usually it will be adjudged to have arisen out of the employment.'

In Re Stacy, 225 Mass. 174, 114 N.E. 206, it was said:

'While the employee's work for the day had been finished and he was on his way home at the time of the fatal accident, still it is settled that an injury to a workman may arise out of and in the course of his employment even if he is not actually working at the time of the injury.'

In Hackley-Phelps-Bonnell Co. v. Industrial Commission, 165 Wis. 586, 162 N.W. 921, L. R. A. 1918A, 277, it was said:

'The essential elements of the contract of employment were that the employee should render services for the employer, and in return therefor the employer should pay him an agreed compensation. The duty to pay and the right to receive the compensation were integral parts of the contract of employment. For the convenience of the employer the place of payment was some distance from the place of service, but in going to and from such place of service the conveyance furnished therefor by the employer was used by the employee. So in going to get his pay he was but fulfilling a duty imposed upon him by the employer and using the means of conveyance which the employer furnished his employees for such purpose.

'The general principle is that employment exists only in the area of duty. 1 Bradbury, W. C. 405. Tested by this principle, the employee comes within it. He was entitled under his contract to receive compensation for his services. His employer directed him to go to a place some distance from his work to get his pay and offered him the means of transportation for going there. He went in obedience to the duty placed upon him by his employer and acquiesced in by him, performing the last act under the contract whereby each could receive the full benefit thereof. Had the employer paid him at the camp, a different question would be presented.

'A number of cases are cited by the plaintiff holding that employees receiving injuries while coming or going to their employment in vehicles gratuitously furnished by the employer are not entitled to compensation. These do not touch the present case, because those injuries were received before the employment began or after it terminated. Here the employee, as we have pointed out, was still performing a duty imposed upon him by his employer and one necessary to perform before the terms of the contract of employment were mutually satisfied.

'If we turn to the text-books and decided cases on this subject, we find that they sustain the view that an employee going in the usual manner for his pay to a place designated by the employer is performing a service within his employment.'

The relation of employer and employee not having been terminated at the time Perry sustained his injury, the latter was entitled to compensation under the Industrial Insurance Act (Laws 1911, p. 345) of this state. As will hereinafter be pointed out, this would not necessarily deprive him of the right to a law action in addition to compensation from the industrial fund under the facts in this case.

The next question is whether, when Beverage struck Perry, he was acting within the scope of his employment. On this question Beverage testified as follows:

'On the 17th day of December, 1920, I was forman of the camp of the Webb Logging & Timber Company. Yes; I was the principal man in charge of that camp at that time. I have been active foreman for the logging company since 1911, with the exception of one year I was not active; that is, I was not active in the camp. There was no one else at the camp on this date who had any authority over me. I was in charge of the discipline of the same and the order of the camp at that time. (St. 44, 45.)'

From this testimony it appears that Beverage was in charge of the camp at the time as foreman, and there was no one else there who had authority over him. It was his duty to maintain discipline and order at the camp at the time. There is no substantial distinction between this and that of De Leon v. Doyhof Fish Products Co., 104 Wash. 337, 176 P. 355, where it was held that an employee who was assaulted by the superintendent of the defendant company had a right of action against his employer. The same defense was made there as here that the act was not within the scope of the employment. The case of Matsuda v. Hammond, 77 Wash. 120, 137 P. 328, 51 L. R. A. (N. S.) 920, is relied upon by the logging company as sustaining its contention that the act was beyond the scope of the employment. Referring to that case in the De Leon Case, it was said:

'As there said, the general liability of the master to answer for the tort of a servant rests in the peculiar character of the employment, which, from its nature, is liable to

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