Robinson v. McHugh

• Decision Date: 12 August 1930
• Docket Number: 22300.
• Citation: 158 Wash. 157,291 P. 330
• Court: Washington Supreme Court
• Parties: ROBINSON v. McHUGH et ux.

291 P. 330

158 Wash. 157

ROBINSON v. McHUGH et ux.

No. 22300.

Supreme Court of Washington

August 12, 1930

Department 2.

Appeal from Superior Court, Pierce County; Chapman, Judge.

Action by David T. Robinson against Frank McHugh and wife. From an adverse judgment, the plaintiff appeals.

Affirmed.

HOLCOMB J., dissenting.

Thomas F. Ray and J. Charles Dennis, both of Tacoma, for appellant.

H. G. &amp Dix H. Rowland, of Tacoma, for respondents.

FRENCH J.

The appellant, an employee of the city of Tacoma working in the light department, was injured the 19th day of April, 1929 and elected to sue respondents claiming the right so to do under the Workmen's Compensation Act. The essential parts of the complaint material to this appeal are as follows:

'II. That on or about the 19th day of April, A. D. 1929, the defendants herein as a community were engaged in the business of managing and operating a gasoline shovel in the city of Tacoma under the name of Coast Contractors.

'III. That the plaintiff herein on the said 19th day of April, 1929, at about the hour of 8:45 in the forenoon, was in the employ of the city of Tacoma as a lamp trimmer. That in the performance of his duty as a lamp trimmer aforesaid, plaintiff placed a twelve foot ladder from the sidewalk against a light post on South Commerce Street in the city of Tacoma, near the corner of South 7th Street. That he ascended said ladder and had reached a position on the same about ten feet above the ground, when a gasoline shovel owned by the defendant and operated by the defendant struck the light post and the ladder with such force as to break the same and throw plaintiff to the hard pavement, injuring him severely.'

Paragraph IV related to the injuries of plaintiff; and paragraph V set forth various grounds of negligence of the McHughs, and also alleged that the McHughs were actually engaged in moving this heavy gasoline shovel from one point in the city of Tacoma to another point, the actual destination being unknown to plaintiff.

To this complaint a demurrer was sustained, judgment entered, and this appeal follows:

The question involved is the construction of that portion of the Workmen's Compensation Act contained in the 1929 Session Laws, chapter 132, p. 325, § 1, reading as follows: 'Provided, however, That if the injury to a workman is due to the negligence or wrong of another not in the same employ, the injured workman * * * shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit under this section; and if he take under this act, the cause of action against such other shall be assigned to the state for the benefit of the accident fund; * * * provided, however, That no action may be brought against any employer or any workman under this act * * * if at the time of the accident such employer or such workman was in the course of any extrahazardous employment under this act. Any such cause of action assigned to the state may be prosecuted or compromised by the department, in its discretion.'

It is the contention of the respondent and the holding of the trial court that, because this action was not commenced until July 3, 1929, some twenty days after the taking effect of the act, that portion of the act above italicized by its terms prohibits such an action, it affirmatively appearing from the face of the complaint that the respondents McHugh are contributors to the workmen's compensation fund, and were actually, at the time of the injury, engaged in moving machinery, an occupation listed as extrahazardous; while it is the contention of the appellant that the accident in question, having taken place in April, 1929, some weeks prior to the taking effect of the amendment to the Workmen's Compensation Act, above quoted, such amendment has no application.

The original Workmen's Compensation Act contained in chapter 74, Session Laws of 1911, p. 345, provides:

'Section 1. * * * The State of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen injured in extra hazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided. * * *

'Sec. 3. * * * Provided, however, That if the injury to a workman occurring away from the plant of his employer is due to the negligence, or wrong of another not in the same employ, the injured workman, or if death result from the injury, his widow, children, or dependents, as the case may be, shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit under this section; and if he take under this act, the cause of action against such other shall be assigned to the state for the benefit of the accident fund; if the other choice is made, the accident fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected, and the compensation provided or estimated by this act for such case. Any such cause of action assigned to the state may be prosecuted, or compromised by the department, in its discretion. Any compromise by the workman of any such suit, which would leave a deficiency to be made good out of the accident fund, may be made only with the written approval of the department.'

That portion of section 3 above quoted remained the law until 1927, when the Legislature by chapter 310, p. 816, § 2, Session Laws of 1927, amended it by omitting the italicized words contained in the section above quoted.

The Workmen's Compensation Act both as passed in 1911 and by all subsequent amendments thereto has recognized that: 'There is a hazard in all employment, but certain employments have come to be, and to be recognized as being inherently constantly dangerous. This act is intended to apply to all such inherently hazardous works and occupations, and it is the purpose to embrace all of them, which are within the legislative jurisdiction of the state, in the following enumeration, and they are intended to be embraced within the term 'extra hazardous' wherever used in this act, to wit: [among other occupations] telegraph, telephone, electric light or power plants or lines. * * *'

Appellant, at the time of his injury, as appears from the complaint, was actually engaged at his occupation as a light trimmer and was actually on a ladder placed against a light post. That he was actually on the premises of his employer is settled by the case of Zenor v. Spokane & Inland E. R. Co., 109 Wash. 471, 186 P. 849, 850, and Diblasio v. Hunter, 124 Wash. 98, 213 P. 470. The injury having taken place on the plant of the employer it is certain that subsequent to the enactment of the Workmen's Compensation Act of 1911, and until and time of the amendment of such act in 1927, no action could have been maintained by appellant for an injury such as this. In the case of Zenor v. Spokane & Inland Empire R. Co., supra, we said: 'From the beginning this court has construed the act as meaning what it says: i. e., that the common-law right of action for damages accruing from an injury received by a workman in the course of his employment is abolished, except as in the act otherwise provided ( State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L. R. A. [N. S.] 466 [2 N.C. C. A. 823, 3 N.C. C. A. 599]; Peet v. Mills, 76 Wash. 437, 136 P. 685, Ann. Cas. 1915D, 154, L. R. A. 1916A, 358; Ross v. Erickson Construction Co., 89 Wash. 634, 155 P. 153, L. R. A. 1916F, 319; Stertz v. Industrial Insurance Commission, 91 Wash. 588, 158 P. 256, Ann. Cas. 1918B, 354).'

What right, then, was given to the workman by the 1927 amendment? That amendment reads: '* * * Provided, however, That if the injury to a workman is due to the negligence or wrong of another not in the same employ, the injured workman, or if death result from the injury, his widow, children, or dependents, as the case may be, shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit under this section. * * *'

All the was given to the workman when injured by the negligent act of a third party was the statutory right of election to sue such third party for such injury. (This being a right which had theretofore been taken away from him.) By the amendment of 1929 above quoted, it was provided that, where injured by the negligent act of a third party, if such third party was an employer engaged in any extrahazardous employment, no action might be brought. It plainly appears that under the circumstances of this case no action could have been brought for this injury prior to the taking effect of the 1927 amendment, and...