Williamson v. Weyerhaeuser Timber Company

• Citation: 221 F.2d 5
• Decision Date: 11 April 1955
• Docket Number: No. 13493.,13493.
• Parties: Annabell M. WILLIAMSON, Administratrix of the Estate of Lee A. Williamson, Deceased, Appellant, v. WEYERHAEUSER TIMBER COMPANY, a Corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

221 F.2d 5 (1955)

Annabell M. WILLIAMSON, Administratrix of the Estate of Lee A. Williamson, Deceased, Appellant, v. WEYERHAEUSER TIMBER COMPANY, a Corporation, Appellee.

No. 13493.

United States Court of Appeals Ninth Circuit.

April 11, 1955.

McCarty, Dickson & Swindells, William L. Dickson, William Miller, Portland, Or., for appellant.

Wilbur, Mautz, Souther & Spaulding, Robert T. Mautz, Portland, Or., for appellee.

Robert Y. Thornton, Atty. Gen., Ray H. Lafky, Roy K. Terry, T. Walter Gillard, Vernon D. Gleaves, Asst. Attys. Gen., intervenors and amici curiae.

Before HEALY, POPE and CHAMBERS, Circuit Judges.

POPE, Circuit Judge.

The appellant instituted an action in the district court for the district of Oregon based on the wrongful death statute of the State of Washington¹ to recover damages for the death of the above named decedent alleged to have been caused by the negligence of the appellee. This appeal is from the judgment that the plaintiff recover nothing and that her complaint be dismissed.

Lee A. Williamson was an employee of Wood Tractor Company, an Oregon corporation, which was a dealer in tractors and other industrial machinery. It held a franchise for the sale of Allis-Chalmers industrial equipment in portions of Washington and Oregon. Its office, warehouse and repair shops were located at Portland. In addition to selling such equipment it regularly serviced and repaired equipment belonging to its customers within the area covered by its franchise. Williamson was employed as a tractor mechanic and as such was called upon to repair and service such equipment at the customers' places of business both in Oregon and Washington. During 1949 he worked approximately 16 per cent of his time in Washington and in 1950, up to April 25, the date of his death, he worked approximately 30 per cent of his time in that State. He was ordinarily called upon by his employer to service and repair the equipment sold to Weyerhaeuser Timber Company. At the time of the accident which caused his death, Williamson had gone to the location of one of the Weyerhaeuser operations in Washington for the purpose of servicing and starting two new machines that the timber company had recently purchased. He was killed through the operation of a logging truck owned by that company. Plaintiff contended that the logging truck had been operated in a negligent manner which caused the death.

The Wood Tractor Company, Williamson's employer, was engaged in hazardous employment within the meaning of the workmen's compensation law of Oregon and it had elected to be subject to that act.² Under the Oregon law it was possible for a workman employed and working in Oregon to be covered for accidental injuries during the time he was temporarily absent from the State "if at the time of the accident he was not subject to the workmen's compensation law of the jurisdiction in which he was injured."³ The widow, Annabell M. Williamson, on behalf of herself and her minor son, filed a claim for compensation on account of the death of her husband with the Oregon Industrial Accident Commission seeking benefits payable under this Act. Her claim was allowed and she was still receiving compensation at the time of the trial. She also filed a timely claim for compensation under the Washington Workmen's Compensation Act, RCW 51.04.010 et seq., with the appropriate board in the State of Washington. At the time of the trial in the court below that claim had not been acted upon.⁴

It was the contention of the defendant timber company that the action here was barred by the provisions of the Workmen's Compensation Act of Washington and the parties stipulated that such issue should be segregated as a preliminary issue to be tried and determined by the court sitting without a jury. Upon such trial of that issue the court made findings of fact and conclusions of law holding and concluding that at the time of the fatal injury Williamson and his employer Wood Tractor Company were subject to the provisions of the Washington Act; that the accident which caused the death involved a workman in extra-hazardous employment who suffered fatal injuries "on the premises of and in connection with the employment of an employer Weyerhaeuser engaged in extra-hazardous employment"; and that under such circumstances the dependents of such workman could not recover damages from the timber company. Judgment was entered accordingly.

Upon this appeal it is urged that Williamson was not covered by or subject to the provisions of the Washington Act; that the question of the appellant's right to bring a suit against a third party to recover for the death is governed by the provisions of the Oregon Act; that the section of the Washington Act which the trial court held barred this action conflicts with the public policy of Oregon and should have been disregarded by the trial court; and that in any event that section of the Washington Act must be given a construction permitting this action if it is to avoid invalidation as unconstitutional.

Manifestly the trial court was required to decide initially which law governed its determination as to whether plaintiff had a cause of action. The suit was one to recover damages for wrongful death resulting from the timber company's alleged negligence, — an action for tort. As this was a diversity of citizenship case, the court below sitting as a federal court in Oregon must conform to the conflict of laws rules prevailing in Oregon's state courts. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477; Wallan v. Rankin, 9 Cir., 173 F.2d 488, 490. The common statement of the rule is that an action in tort is governed by the law of the jurisdiction where the tort was committed. "The law of the place of wrong governs the right of action for death". Restatement, Conflict of Laws, § 391. This rule is recognized and discussed at length by the Supreme Court of Oregon in the case of Bowles v. Barde Steel Co., 177 Or. 421, 164 P. 2d 692, 162 A.L.R. 328.⁵ Considering that determination of the question of liability must be based upon the law of Washington, the trial court held that under the law of that State, the acts which resulted in Williamson's death did not give rise to any cause of action.

This holding was premised upon the court's conclusion, mentioned above, that at the time of the fatal injury Williamson and his employer "were subject to the provisions of the Workmen's Compensation Act of Washington". It had been stipulated in connection with the pre-trial order that "at the time of said fatal accident, the deceased was an employee of Wood Tractor Company, an Oregon corporation, and he was on the premises of the defendant to inspect and service logging equipment sold to the defendant by his employer". The opinion of the trial judge makes it plain that as he observed the issues presented, his attention had not been called to any contention that at the moment of the fatal injury Williamson was not acting in the course of his employment. That he was so acting appears to have been taken for granted at the trial. We shall find it necessary, hereafter, to deal with that precise question. Initially, however, we must inquire whether, assuming that Williamson was then acting in the course of his extra-hazardous employment, the court correctly held that the acts charged to the defendant gave rise to no cause of action.

As disclosed by the case of Koreski v. Seattle Hardware Co., 17 Wash.2d 421, 135 P.2d 860, 864, the statutes of the State of Washington have, at least since 1929, provided that there does not exist in that State a right of action for an injury sustained in an industrial accident arising out of circumstances such as those which caused the death of Williamson. Seattle Hardware Company was an employer engaged in extra-hazardous work within the meaning of the Washington Workmen's Compensation Act. It had qualified under the provisions of that Act. Koreski, the plaintiff, was not an employee of the Seattle Hardware Company. He was, however, an employee of Ace Electric Motor Service Co. and as such was engaged in repairing an electric motor on the premises of the hardware company. The Ace Electric Motor Service and Koreski were likewise engaged in extra-hazardous work within the meaning of the Washington Act. Although Koreski's employer had failed to report to the Director of Labor and Industries that Koreski was carried on its payroll, and it paid no premium to the industrial insurance fund on account of his employment, it was held that the Seattle Hardware Company, by qualifying under the Washington law and making payments into the State's industrial insurance fund, made a rateable contribution for the protection "not of its own employees alone, but of the whole body of employees of the state engaged in extrahazardous industry"; hence that the Washington Act expressly granted to the Seattle Hardware Company an immunity from suit not merely by its own employees but by any workman in the State who was engaged in the employment of any employer coming under the Act. The court said: "As appellant Seattle Hardware Company complied with the terms of the Workmen's Compensation Act immunity from liability for negligently injuring respondent, who was the employee of another employer, is a benefit to which appellant is entitled under the act." The salient portions of the Washington Act's immunity provision as quoted and emphasized in an opinion in the recent case of Latimer v. Western Machinery Exchange, 42 Wash.2d 756, 259 P.2d 623, 628, are 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 * * * shall elect whether to take...