Weiffenbach v. City of Seattle

• Decision Date: 21 February 1938
• Docket Number: 26968.
• Citation: 76 P.2d 589,193 Wash. 528
• Parties: WEIFFENBACH v. CITY OF SEATTLE.
• Court: Washington Supreme Court

76 P.2d 589

193 Wash. 528

WEIFFENBACH v. CITY OF SEATTLE.

No. 26968.

Supreme Court of Washington

February 21, 1938

Department 1.

Appeal from Superior Court, King County; Malcolm Douglas, Jadge.

Action for personal injuries by Conrad J. Weiffenbach against the City of Seattle, a municipal corporation tried to the court without a jury. From a judgment dismissing the action plaintiff appeals.

Affirmed.

Meier & Meagher and Frederick C. Kapp, all of Seattle, for appellant.

A. C Van Soelen, Corp. Counsel, and J. Ambler Newton, both of Seattle, for respondent.

GERAGHTY Justice.

The plaintiff sued the defendant city to recover damages on account of severe injuries sustained by him through the city's negligence. The cause was tried to the court without a jury. The material facts may be epitomized as follows:

The plaintiff was employed by the Seattle Cornice Works in making estimates and surveys of buildings for repair. While engaged in measuring the roof of a building, he was permanently injured by a current of electricity conveyed by a metal tape measure used by him from a highvoltage wire, part of the city's municipal light and power system. The wire was carried on poles along the city's streets. The building on which the plaintiff was employed abutted on the street. One of the poles carrying the high-voltage wire had leaned toward the building nearly four feet from a vertical position, causing the wire to sag down over the roof. One of the city's employees testified that the wire from which the charge was received cleared the building only eighteen inches, and was approximately even with the top of the chimney. The regulations of the city's light department provided that highvoltage wires should clear the building six feet. Plaintiff was not able to say whether the tape touched the wire or became charged by electricity emanating from it. It seems that, under the conditions of atmosphere then existing, the current would emanate seven inches from the wire. The wires were not insulated.

The court found that, if entitled to recovery, the plaintiff's damages would be $36,545.55. It found that the plaintiff's injuries were the result of the defendant city's negligence and that he himself was free of any contributing negligence, but concluded that the defendant, in the maintenance of the high-voltage wire, was engaged in an extrahazardous employment under the Workmen's Compensation Act and was, by the terms of the act, exempt from suit by the plaintiff, who was himself engaged in extrahazardous work. A judgment was accordingly entered dismissing the plaintiff's action, and he appeals to this court.

The appellant states the sole issue in the case to be whether or not the respondent was, at the time of the accident, in the course of an extrahazardous employment under the Workmen's Compensation Act in respect of the maintenance of the highvoltage line causing the accident.

The issue is to be determined by the construction of the provisos embodied in the definition of 'workman' contained in Rem.Rev.Stat. § 7675, reading as follows: 'Workman means every person in this state, who is engaged in the employment of any employer coming under this act whether by way of manual labor or otherwise, in the course of his employment 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: * * * Provided, however, That no action may be brought against any employer or any workman under this act as a third person if at the time of the accident such employer or such workman was in the course of any extra-hazardous employment under this act.' (Italics ours.)

The history of the above provisions is detailed in Robinson v. McHugh, 158 Wash. 157, 291 P. 330, and Denning v. Quist, 160 Wash. 681, 296 P. 145. It is to be noted that the second proviso was not embodied in the Workmen's Compensation Act until the legislative session of 1929. For the preceding eighteen years in which the act was in force, there was no exemption from action as a third party in favor of an employer or employee engaged in extrahazardous employment and not in the same employ with the injured workman.

The appellant contends that the respondent was not, at the time of the accident, an employer engaged 'in the course of any extrahazardous employment'; that this phrase necessarily implies the presence of an employee doing some act at the time and place of the accident, together with an active participation, on his part, in the doing of some act; that a merely passive negligence, being a nondelegable act or condition on the part of an employer, such as, he contends, is found in this case, does not afford a basis for the exemption. He contends that the respondent was not, at the time of the accident, engaged in any employment that had anything to do with appellant's injuries; that it was doing no construction work on the line and had no employees actively engaged in any work who actually contributed in any manner in causing his injuries. It is contended that, by the use of the word 'employment' instead of some other word, the Legislature plainly had in mind that the action covered by the proviso must be one resulting directly from the relationship of employer and employee; and he urges that the word 'employment' is not synonymous with 'business' or 'industry'; that, had these latter words been used, the question would have been quite a different one, and the Legislature could easily have used them if that was its intention.

Now, an examination of the Compensation Act will disclose that the Legislature did not always use the word 'employment' in the restricted sense contended for, but that it is often used in a broader sense as synonymous with 'industry,' 'work,' 'occupation,' or 'business.'

In section 1 of the act, Laws 1911, p. 345, Rem.Rev.Stat. § 7673, the term 'extrahazardous work' is used, and it is declared that, 'the...