Ransom v. Haner

• Decision Date: 16 May 1961
• Docket Number: No. 37,37
• Citation: 362 P.2d 282
• Parties: Reuben H. RANSOM, Appellant, v. Vic HANER, Marion Keyes, et al., Appellees.
• Court: Alaska Supreme Court

Page 282

362 P.2d 282

Reuben H. RANSOM, Appellant, v. Vic HANER, Marion Keyes, et al., Appellees.

No. 37.

Supreme Court of Alaska.

May 16, 1961.

P. M. Barceloux, R. M. Watt, and Jordon N. Peckham, of Goldstein, Barceloux & Goldstein, Chico, Cal., and Thomas B. Stewart, Juneau, for appellant.

Robert Boochever, of Faulkner, Banfield & Boochever, Juneau, for appellees Vic Haner and Marion Keyes.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

AREND, Justice.

On January 16, 1959, Reuben H. Ransom, as plaintiff, filed his complaint in the district court against the defendants Vic Haner, Marion Keyes and Does I to V, alleging (1) that he was employed by the Ketchikan Pulp Company and the American Viscose Company to work as a machinist's helper, (2) that the defendant Vic Haner was the general superintendent and the defendant Marion Keyes was the assistant superintendent and foreman for the two companies, (3) that defendants Haner and Keyes were negligent in directing plaintiff to manually stack heavy steel shafts, and (4) that as a proximate result of said negligence the plaintiff suffered an injury to his lower back to his damage in the sum of $100,000.

Haner and Keyes moved to dismiss the action 'for the reason that the complaint fails to state a claim upon which relief can be granted, and for the further reason that plaintiff's exclusive remedy lies under the provisions of the [Alaska] Workmen's Compensation Act.' In a written opinion the trial court addressed itself only to the 'exclusive remedy' issue and denied the motion to dismiss, holding that, under the Compensation Act, ¹ any co-employee whether in a supervisory capacity or otherwise would be a third party and 'someone other than the employer' against whom an action for damages for negligence in causing an injury arising out of and in the course of employment could be maintained. ² .

On July 13, 1959, plaintiff filed an amended complaint naming as additional defendants the two company employers already mentioned herein and Fireman's Fund Indemnity Company, and also one Donovan Westland who had been named in the original complaint as Doe I. The three companies were joined as defendants solely for a determination of the extent to which they were entitled to subrogation to plaintiff's rights against Haner and Keyes for any workmen's compensation benefits paid by the companies to the plaintiff in connection with his alleged injury.

The amended complaint reasserted that plaintiff's injury was proximately caused by the negligence of the defendants Haner and Keyes in ordering the plaintiff to manually lift heavy steel shafts. Other specific acts of negligence charged against Haner and Keyes by the plaintiff were failure to provide the plaintiff with a safe place in which to work, failure to repair a certain crane and track necessary for the moving and hoisting of heavy steel shafts, and failure to provide proper equipment for the plaintiff with which to perform the tasks assigned. Haner and Keyes each filed a motion and affidavits for summary judgment. The plaintiff filed his affidavit in opposition.

On February 9, 1960, the district court, 25 F.R.D. 84, 86, entered a summary judgment in favor of the movants, Haner and Keyes, dismissing the case as to them. It is apparent from the court's memorandum opinion, contained in the record, that its decision is based upon the conclusions that the alleged negligent acts of the defendants, even if true, amounted to 'no more than nonfeasance,' and that, 'since a vice-principal is not liable to a servant for nonfeasance' as a matter of law, ³ no real cause of action existed against Haner and Keyes. The court then reasoned that, since the plaintiff had not stated a case of action against Haner and Keyes, no genuine issue as to a material fact in this case existed and the movants were, therefore, entitled to a summary judgment as a matter of law. ⁴ The plaintiff has appealed from this judgment.

We fail to find in plaintiff's brief any specification of errors upon which he intends to rely, as required by Rule 11(6) of this court. He does state in his brief, however, that he has organized his argument on appeal under two major topics: 'A. Defendants and each of them were actually guilty of so-called 'misfeasance' in the premises which caused injury to plaintiff;' and 'B. If any rule of nonliability for 'nonfeasance' exists at all, it is applicable solely to an agent who fails to enter upon the duties for which he has been engaged; and once the agent commences to perform the duties of his position, he is liable for his own negligence to other employees, regardless of whether it is for negligent acts or negligent omissions.' For the purposes of this opinion we shall regard these 'topics' as assignments of error.

The defendants in their brief urge upon us two other questions that we should consider here, though not raised by them or considered by the trial court in the hearing on the motion for summary judgment. The first question is whether the plaintiff assumed the risk of any injury in the performance of his work under the circumstances set forth in the complaint and amplified by the affidavits; and the second question is whether the plaintiff's exclusive remedy was under the Alaska Workmen's Compensation Act. In this connection the defendants argue that, if there are any grounds for upholding the summary judgment on their behalf, regardless of whether they are the grounds set forth by the trial judge, the judgment should be affirmed. We agree, for it is a rule of law that an appellee may urge, and the appellate court should consider in defense of a decree or judgment any matter appearing in the record, even if rejected below and even if appellee's argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it. ⁵

Based upon the issues thus raised by the parties to this appeal, we consider the questions presented for our determination to be:

I. Does the complaint fail to state a claim for which relief can be granted for the reason that (1) the defendants Haner and Keyes are protected under the Workmen's Compensation Act against common law liability to the plaintiff; or (2) the claim alleges facts of nonfeasance only for which a vice-principal is not liable to a servant; or (3) the allegations of the complaint show that, as a matter of law, the plaintiff assumed the risk of injury?

II. May the summary judgment be affirmed on the ground that the pleadings considered together with the affidavits show that there is no genuine issue of fact with respect to (1) alleged negligent acts of the defendants, or (2) plaintiff's assumption of risk?

Section 43-3-30, A.C.L.A.1949, which is a part of the Alaska Workmen's Compensation Act applicable to this case provides that

'Where the injury for which compensation is payable hereunder was caused under circumstances creating a legal liability in someone other than the employer to pay damages in respect thereof, the employee may take proceedings against the one so liable to pay damages and against anyone liable to pay compensation under this Act, but shall not be entitled to receive both damages and compensation * * *.' (Emphasis added.) ⁶

Defendants contend that a fellow employee, also referred to as a supervisory employee or vice-principal, may not be regarded as a third party, i. e., 'someone other than the employer,' under the foregoing section of the act, and that therefore the plaintiff's exclusive remedy in this case is for compensation from the employer under the act and not by way of a common law action for damages against the fellow employees. The defendants have cited us to only four jurisdictions in which it is now squarely held that a fellow employee is not 'someone other than the employer' within the meaning of the compensation law. ⁷ There are other courts holding that the exclusive remedy of an employee injured by a fellow employee is under the Workmen's Compensation Act. ⁸ The decisions of those courts, however, were usually based upon a more restrictive wording of the applicable state compensation act under consideration in respect to common law liability of third persons to the injured employee. ⁹

Another line of authority holds that, under compensation acts containing a provision such as appears in section 43-3-30, ACLA 1949, immunity to common law suit is extended only to the employer, and an injured employee can therefore sue his own coemployee for the latter's negligence. ¹⁰ This is definitely the majority rule and it is based upon such grounds as we find expressed by the West Virginia court in Tawney v. Kirkhart: ¹¹

'* * * There is no contract between coemployees and they are subject to the provisions of the compensation act in their relationship with each other in no way. They pay nothing into the fund that entitles them to protection under its terms. We can perceive nothing in sound reasoning that would entitle a coemployee to gratuitous protection for his own misconduct. To hold that a coemployee is not liable for his own negligence would increase the hazard of employments and be contrary to public policy. We have been able to find nothing apart from an express constitutional or statutory provision such as exists in New York, Texas, Massachusetts and Virginia that would entitle him to an exemption from liability * * *.'

The sizeable number of the majority alone would not persuade us, but sound reasoning in support of the view, such as we find expressed in Churchill v. Stephens, ¹² does:

'It is said that the defendant is not a 'third person,' within the meaning of the act. We see no reason for attributing to the words 'third person' any other meaning then the usual one. It must mean, as indeed the subsequent language of the section makes perfectly plain, a person other than the employer or employe.' ¹³

We hold, therefore, that under section 43-3-30, ACLA 1949 a fellow employee...