Reutenik v. Gibson Packing Co.

• Decision Date: 26 December 1924
• Docket Number: 18719.
• Parties: REUTENIK v. GIBSON PACKING CO. (HARTFORD ACC. & INDEMNITY CO., Intervener.
• Court: Washington Supreme Court

231 P. 773

132 Wash. 108

REUTENIK v. GIBSON PACKING CO. (HARTFORD ACC. & INDEMNITY CO., Intervener.

No. 18719.

Supreme Court of Washington

December 26, 1924

Department 2.

Appeal from Superior Court, Yakima County; Nichoson, Judge.

Action by W. P. Reutenik, as administrator of the estate of Fred H Hartje, deceased, against the Gibson Packing Company, a corporation, in which the Hartford Accident & Indemnity Company intervened. Judgment for plaintiff, and defendant appeals. Affirmed.

J. Speed Smith and Henry Elliott, Jr., both of Seattle, and Rigg & Venables, of Yakima, and Nat U. Brown, of Olympia, for appellant.

P. V Davis, Thompson & Davis, and Richards, Gilbert & Fontaine all of Yakima, and Roberts & Skeel, of Seattle, for respondent.

HOLCOMB J.

On June 8, 1922, respondent's decedent, Fred H. Hartje, then living in Yakima county, received injuries in an automobile collision in Yakima county, from which he died. The automobile causing the injuries was a delivery truck owned by appellant, and driven by its agent. Thereafter respondent was named as administrator of the estate of Hartje, and brought an action against appellant for the benefit of Alice M Hartje, widow of the decedent, claiming that the injuries and death were caused by the wrongful act of appellant.

Appellant answered, admitting the collision, denying negligence, and setting up as an affirmative defense the contributory negligence of the decedent. As a second affirmative defense appellant alleged that at the time of his death Hartje was a resident of California, was employed as a potato buyer by the Atlantic Produce Company, a corporation of that state, and was so engaged at the time of his death; that under the laws of California, and particularly under the Workmen's Compensation and Safety Laws, being chapter 176 of the Laws of 1913, as amended by chapter 586 of the Laws of 1917, and chapter 471 of the Laws of 1919 of California, the Atlantic Produce Company was an employer required by the act to carry industrial accident insurance on behalf of its employees, and that in accordance therewith it had, prior to the date of the accident, procured such insurance from the Hartford Accident & Indemnity Company, a corporation; and that such act provides among otherthings, as follows:

'Death Benefit.

'3. * * * (c) If the injury causes death, either with or without disability, the burial expense of the deceased employee as hereinafter limited and a death benefit which shall be payable in installments equal to sixty-five per cent. of the average weekly earnings of the deceased employee, upon the employer's regular pay day, but not less frequently than twice in each calendar month, unless otherwise ordered by the commission, which death benefit shall be as follows:

'(1) In case the deceased employee leaves a person or persons wholly dependent upon him for support, such dependents shall be allowed the reasonable expense of his burial, not exceeding one hundred dollars, and a death benefit, which shall be a sum sufficient, when added to the disability indemnity which at the time of death has accrued and become payable, under the provisions of subsection (b) hereof, and the said burial expense, to make the total disability indemnity, cost of burial and death benefit equal to three times his average annual earnings, such average annual earnings to be taken at not less than three hundred thirty-three dollars and thirty-three cents nor more than one thousand six hundred sixty-six dollars and sixty-six cents. * * *

'(3) If the deceased employee leaves no person dependent upon him for support, the death benefit shall consist of the reasonable expense of his burial, not exceeding one hundred dollars and such other benefit as may be provided by law.' Laws 1919, p. 916.

That section 5 of the act provides as follows:

'Section 5. Said Commission is hereby vested with full power, authority and jurisdiction under the provisions of this act and charged with the duties defined by the provisions of this act in addition to all other power, authority, jurisdiction and duties conferred upon it and exercised by it as heretofore created, constituted and existing.' Laws 1917, p. 834.

That thereafter Alice M. Hartje, widow of decedent, on whose behalf this action is being prosecuted, made claim for compensation under the provisions of the above-entitled act, and took such steps as were necessary to procure from the Industrial Accident Commission of California an award as therein provided, on account of the death of decedent; that on September 27, 1922, an award was made by the Industrial Insurance and Safety Commission of California, in the sum of $5,000, payable in weekly installments of $20.83 per week; that the Hartford Accident & Indemnity Company, a corporation, appeared in regular course in the proceeding upon the application of Alice M. Hartje, and the Industrial Insurance Commission, under the provisions of the law heretofore referred to, had jurisdiction over both Mrs. Hartje and the Hartford Accident & Indemnity Company, and the cause of action arising in favor of Mrs. Hartje, and against the Indemnity Company under the insurance policy procured and maintained by the Atlantic Produce Company, a corporation, and that the award made by the California Commission was accepted by Mrs. Hartje and by the Indemnity Company, and that payments have been made in accordance with the terms of the award prior to, and at all times subsequent to, the entry thereof; that it is provided in the California Industrial Insurance and Safety Act as follows:

'Sec. 30 (e) (1). If the employer shall be insured against liability for compensation with any insurance carrier, and if after the suffering of any injury such insurance carrier shall serve or cause to be served upon any person claiming compensation against such employer a notice that it has assumed and agreed to pay the compensation, if any, for which the employer is liable, and shall file a copy of such notice with the commission, such employer shall thereupon be relieved from liability for compensation to such claimant and the insurance carrier shall, without notice be substituted in place of the employer in any proceeding theretofore or thereafter instituted by such person to recover such compensation, and the employer shall be dismissed therefrom. Such proceedings shall not abate on account of such substitution but shall be continued against such insurance carrier. If at the time of the suffering of an injury for which compensation is claimed, or may be claimed, the employer shall be insured against liability for the full amount of compensation payable, or that may become payable, the employer may serve or cause to be served upon any person claiming compensation on account of the suffering of such injury and upon the insurance carrier a notice that the insurance carrier has in its policy contract or otherwise, assumed and agreed to pay the compensation, if any, for which the employer is liable, and many file a copy of such notice with the commission. If it shall thereafter appear to the satisfaction of the commission that the insurance carrier has, through the issuance of its contract of insurance or otherwise, assumed such liability for compensation, such employer shall thereupon be relieved from liability for compensation to such claimant and the insurance carrier shall, after notice, be substituted in place of the employer in any proceeding theretofore or thereafter instituted by such person to recover such compensation, and the employer shall be dismissed therefrom. Such proceeding shall not abate on account of such substitution, but shall be continued against such insurance carrier.' P. 859.

By reason of the foregoing facts appellant prayed that the complaint of respondent be dismissed, or that the Hartford Accident & Indemnity Company be made a party to the action. This affirmative defense was moved against by respondent, and his motion denied. Thereupon he filed a reply in which he admitted the sections of the Compensation and Insurance Laws of California pleaded by appellant, and further pleaded the following provisions of the same laws:

'Claim Against Third Party.

'Sec. 26. The term 'employee,' as used in this section, shall include the person injured and any other person in whom a claim may arise by reason of the injury or death of such injured person. The death of the employee, or of any other person, shall not abate any right of action established by this section. The claim of an employee for compensation shall not affect his right of action for damages arising out of injury or death against any person other than the employer; and any employer having paid, or having become obligated to pay, compensation, may likewise bring an action against such other person to recover said damages. If either such employee or such employer shall bring such action against such third person, he shall forthwith notify the other in writing, by personal service or registered mail, of such fact and of the name of the court in which such suit is brought, filing proof thereof in such action and, if the action be brought by either, the other may, at any time before trial on the facts, join as party plaintiff or must consolidate his action, if brought independently. If the suit be prosecuted by the employer alone evidence of any expenditures which the employer has paid or become obligated to pay by reason of said injury or death shall be admissible, and such expenditures shall be deemed a part of the damages, including a reasonable attorney's fee to be fixed by the court; and if in such suit the employer shall recover more than the amount he has paid or become obligated to pay as compensation he shall pay the excess to the injured employee

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