Watson v. Hecla Min. Co.

• Decision Date: 29 April 1914
• Docket Number: 11,343.
• Parties: WATSON v. HECLA MINING CO.
• Court: Washington Supreme Court

140 P. 317

79 Wash. 383

WATSON v. HECLA MINING CO.

No. 11,343.

Supreme Court of Washington

April 29, 1914

Department 1. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by Dick Watson against the Hecla Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wakefield & Witherspoon, of Spokane, for appellant.

Robertson & Miller, of Spokane, and C. H. White, for respondent.

MAIN J.

This action was brought for the purpose of recovering damages alleged to be due to an accident caused by negligence chargeable to the defendant. The cause was tried to the court sitting with a jury. A verdict was returned for the plaintiff in the sum of $1,250. Judgment was entered upon the verdict. The defendant has appealed.

The facts are substantially as follows: The appellant was the owner of the Hecla mine near Burke, Idaho, upon which a shaft was being sunk. This shaft had been extended to the station at the 1,200-foot level, and it was desired that it be sunk 300 feet further. For the purpose of accomplishing this result the appellant, by posting notice at the mine announced its desire to receive bids for the doing of the work. In response to this notice one F. E. Bryan submitted an offer as follows:

'Hecla Mining Company. Wallace, Idaho. July the twelfth Nineteen Hundred and eleven. Hecla Mining Company, Wallace, Idaho--Dear Sirs: I hereby agree to sink your shaft a distance of three hundred feet for the sum of forty-four 70-100 ($44.70) dollars per foot. I am to do all the labor--drilling, blasting, shoveling and timbering. I am to furnish all explosives--powder, fuse and caps. I am to take care of the sinker pumps, starting, stopping and lowering same, packing when necessary and delivering pump on station in exchange for another when it is necessary to send it to the surface for repairs. I am also to do all the pipework on air line and pump column. I am to break all boulders to size for convenient loading from waste pocket on station level. I agree to do all work in a workmanlike and substantial manner, the same to be inspected and approved by the foreman. I agree to do the blasting through electric wires and to use the piston air drills, which you have with which I am acquainted. I also agree that ten per cent. of the money earned may be retained monthly by you until the contract is completed to your satisfaction, and if I fail to complete the contract to your satisfaction, this ten per cent. so retained is to be forfeited by me to you as liquidated damages. You are to furnish power, drills, drill parts, steel, pump, pump parts, lights and timbers and to deliver same on the 1,200-foot level and you are to pay the men on my pay roll through your office on or before the tenth day of each month for the work done during the preceding month. F. E. Bryan.

'Accepted Hecla Mining Company. James F. McCarthy, Manager.'

By the acceptance of the company, Bryan's letter became the contract. Prior to this time, Bryan had been working for the company as shift boss. The respondent had been working in the same mine under another shift boss. Work was begun under the contract on the 22d day of July, 1911.

The respondent testified that he never talked with Bryan about having the contract, and that the latter never directed the work or gave any orders. He also testified that he was directed by the shift boss in the stope, under whom he was working at the time, to go into the shaft and work there. This shift boss was in the employ of the appellant. In lowering the shaft, four men worked in each shift, one of whom, it was testified, directed the work. On the 25th day of August, 1911, the respondent was directed by the shift boss to grease what was known as the slip joint in the pump. This slip joint was a two-inch pipe within a three-inch pipe about 10 or 12 feet long, the purpose of which was to allow the pump to be lowered a distance represented by the length of the slip joint, without disconnecting and inserting additional pipe. The slip joint had been extended to its full capacity, and it was necessary to insert an additional piece of pipe, the two-inch pipe being pushed down into the three-inch pipe in order that it might be subsequently extended as required. While the respondent was in the act of greasing the slip joint, the shift boss had hold of the top end thereof, endeavoring to cause it to move down into the larger pipe. The evidence shows that it was moved with difficulty, the shift boss telling the respondent that it had stuck. Immediately thereafter, as the respondent's evidence shows, the joint was given a push by the shift boss without warning to the respondent and as it went down, the latter's fingers were caught in the flange, and injury sustained of which he complains.

The manager of the appellant company testified that the mine was in charge of a foreman, and that it was the duty of the head carpenter from time to time to go into the mine for the purpose of inspecting the work and seeing whether it was being properly done. During the time the respondent was working in the shaft he was paid by the company's checks, the same as he had been before.

Three questions are presented for determination: First, did the relation of independent contractor exist between Bryan and the appellant at the time of the injury second, if the relation of independent contractor did not exist, then were the respondent and the shift boss fellow servants under the laws of Idaho; and, third,...