Replogle v. Seattle School Dist. No. 1

• Decision Date: 31 March 1915
• Docket Number: 11927.
• Citation: 84 Wash. 581,147 P. 196
• Parties: REPLOGLE v. SEATTLE SCHOOL DIST. NO. 1.
• Court: Washington Supreme Court

147 P. 196

84 Wash. 581

REPLOGLE v. SEATTLE SCHOOL DIST. NO. 1.

No. 11927.

Supreme Court of Washington

March 31, 1915

Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by Irl T. Replogle against the Seattle School District No. 1. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Henry W. Pennock, of Seattle, for appellant.

Vanderveer & Cummings and H. McC. Billingsley, all of Seattle, for respondent.

CROW J.

Action by Irl. T. Replogle against Seattle school district No. 1 for damages for personal injuries, and for services rendered. From a judgment in plaintiff's favor, the defendant has appealed.

There are two causes of action. Appellant concedes, however, that respondent is entitled to recover $43.20, the amount claimed on the second cause of action for services rendered, and it need not be further considered.

The question involved on this appeal affects the first cause of action only. The complaint, in substance, alleges that appellant is a duly organized school district that on December 27, 1911, respondent was in its employ as a truck driver and storekeeper's helper, working under the direction and control of one J. M. Moseley; that in the due and regular course of his employment Moseley directed respondent to accompany appellant's electriciam, one Osborn, to a certain school building in the district, and there, under Osborn's direction, assist him in repairing one of appellant's electric motors; that, while holding a lantern under the direction of Osborn, the latter negligently and carelessly caused the motor to revolve rapidly before a protecting sleeve had been placed in position; that thereby a clutch pulley was caused to break, and that a portion of it struck and injured respondent. Answering this cause of action, appellant, for an affirmative defense, with other facts, alleged that respondent's usual occupation as truck driver and storekeeper's helper was not at the time, and is not now, classed as extrahazardous under the law and ruling of the industrial insurance commission of this state, but that the installation of an electric motor was and is extrahazardous under the law and under the rulings of the commission; that shortly after October 1, 1911, appellant furnished the industrial insurance commission a complete list of all its employés, including respondent, who were engaged in manual occupations; that the commission thereafter classified appellant's employés and fixed the amount of premiums to be paid on their account; that appellant paid all premiums required by the commission; and that it was not at the time of the accident, nor has it ever been, in default for any premium demanded by the commission. On the trial of the action it was, in substance, stipulated that plaintiff was employed as a truck driver and storekeeper's helper under the immediate direction and control of Moseley; that Osborn was employed and known as the electrician; that he had full charge of all electrical work for appellant, receiving orders from the chief engineer; that it was a part of respondent's duty to deliver supplies, including electric motors, for use in the various school buildings that it had been the custom to require respondent to assist other employés of appellant; that on several occasions respondent had assisted Osborn in the installation of electric motors in school buildings; that a ten horse electric motor used for driving the fan in one of the buildings had become out of repair; that the electrician had taken it apart and had taken the main driving shaft, with windings and appurtenances, to a local machine shop in the city of Seattle for necessary repairs; that on December 27 1911, respondent, in the regular course of his employment, was directed by Moseley to call at the machine shop for the parts of the motor which had been repaired, and convey the same, accompanied by Osborn, to the John B. Allen School, there to assist in assembling the parts and installing the motor under Osborn's direction and control; that in compliance with such orders respondent, accompanied by Osborn, delivered the parts of the motor at the school building, and there assisted Osborn in reconstructing and installing the motor, his duties being to assist in carrying the parts which had been repaired to the fan room and to hold a lantern for Osborn while he was replacing the various parts and installing the motor; that, while respondent was so engaged, Osborn, after making certain electrical connections with the motor, turned on the current, as a result of which the motor started and was caused to revolve at great speed; that a portion of the motor known as the 'extension band' was at the time unprotected by the covering which should have been placed over it before turning on the current; that, as a result of the rapid revolutions, the unprotected band expanded and broke, a portion thereof striking respondent in the face and causing serious injuries; and that Osborn negligently turned on the current while the band was uncovered. The secretary of appellant's board of directors testified that, during the years 1911 and 1912, he was secretary of the board, and that the district had promptly paid all claims that the industrial insurance commission of the state had made for premiums on workmen employed by the district, and that the district was not in default for any payments.

The question raised by the assignments of error is whether the Workmen's Compensation Act (chapter 74, Sess. Laws 1911; 3 Rem. & Bal. Code, § 6604-1 et seq.) deprived the state courts of jurisdiction over respondent's first cause of action. Appellant contends that it did. In ...