*1 YAMAUCHI, MASAMI DOUGLAS LAWRENCE ANSAI, KUBOTA, I, DOE TOSHIO SHIGERU JOHN II, III, DOE AND ROE CORPORATION. DOE JOHN JOHN

No. 4671.

April 4, 1968. C.J., JJ., Richardson, Mizuha, Marumoto, Abe, and Circuit Yasutaka Fukushima Judge J., Levinson, Place Disqualified. MIZUHA,

OPINION OF THE COURT BY Lawrence, a Douglas Plaintiff-appellant, plasterer’s helper, while he stood on the floor of the Waikiki Circle a hotel under con- building struction, when bob on his five-pound plumb dropped head and shoulder Kubota from by defendant-appellee Shigeru the twelfth floor. At time of this was em- injury, plaintiff Okazaki & sub- ployed plastering contractor, and was in his engaged employment struction of the Waikiki Circle Hotel. Ya- Defendants-appellees mauchi and Construction Town were the contractors the Waikiki Circle Hotel at the constructing time and defendant anwas Shigeru of defendants Yamauchi and Ansai. are, first, for decision in this case questions

plaintiff-appellant, *2 to a action for maintain common law against Town Construc- Yamauchi and defendants-appellees contractors; second, and tion the general to has employee defendant- maintain a common law action against Kubota, the contractor. an appellee employee law, that a matter of under court concluded as as it at the date of injury Yamauchi Ansai were “defendants February that “defendant statutory employers plaintiff,” Yamauchi Kubota was a defendants statutory employee Ansai,” statutory co-employee presumably therefore, under defendants’ motion for sum- granted We reverse. mary judgment. the issues of this case statutes to are pertinent applicable 97-1, 97-7, and as follows on read

§ § * ** “§ “ unless otherwise includes body any ‘Employer,’ or or private, persons, corporate unincorporated, public It in- and the of a deceased employer. legal representative or other cludes owner or person lessee premises, car- business there operator of who, ried reason by independent reason, the direct other is not employer is insured If of the workmen there the employer employed. his insurer as as it includes far added.) applicable.” (Emphasis ** exclusive; *. The to 97-7. Right compensation “§ on account to an and remedies herein granted employee rights he is entitled for which injury personal all other under this shall exclude rights chapter his dependents representatives, employee, personal otherwise, kin, on account of law next of common injury.” third When injury persons. 97-10. Liability

“§ this under death for which benefits payable chapter in some under creating person been sustained circumstances liability pay other than thereto, or his (in dependents injured employee respect benefits claim section referred this ‘employee’) that other chapter such from damages proximately or death.” X w X X w x v? X íF -Tv an action shall herein contained permit

“Nothing same another while caused the other is course of except employment, other of such or wanton misconduct caused the wilful employee.” *3 of this case indicate facts of provisions § not immunity to the does grant

on the date plaintiff on from a suit based negligence general contractor’s subcontractor. Contrary of general time of the trial court that “at the findings con at said location was the business conducted business,” Ya that defendants struction are of the we opinion the business carried mauchi Ansai were not the operators within the on the Waikiki Circle Hotel meaning Co., Oahu Haw. Uyeno See Ikoma v. 291 Sugar § Sut, Minors v. v. Chun Kim 31 Haw. City Wright 102 (1929); and Ansai & Defendants Yamauchi 41 Haw. 603 County, (1957). the mean within the statutory plaintiff employers of 97-1. ing § his em-

Plaintiff’s workmen’s 97-7, R.L.H. Okazaki and ployer, 1955, does not exclude all other rights plaintiff for have others his injury, including in the construction tractor or another subcontractor engaged Circle their the Waikiki employees. as to his conclusion

Since error judge that defendants Yamauchi and Ansai were “statutory plaintiff’s them from a suit as to render immune employer” it follows that his conclusions that defendant necessarily Ansai, defendants Yamauchi employed therefore “statutory employee,” co-employee 1955, under the R.L.H. is also erroneous. provisions Hence, grants other than the against any from such proximately death, filed authorizes suit as herein by specifically of the subcontractor against defendants Yamauchi em- contractor’s defendant Kubota. ployee, for an order

Reversed remanded vacating judgment. Ashford, Martin Anderson and W. George (Anderson, Jr. Jenks, & Wrenn counsel) plaintiff-appellant. Alexander C. Marrack & Castle Anthony, (Robertson, counsel) defendants-appellees. MARUMOTO,

DISSENTING OPINION OF I dissent. cases of Ikoma v. Oahu Haw. Sugar Sut, v. Chun Kim 31 Haw. 102 (1916); Uyeno (1929); Wright Minors v. & 41 cited in the City County, court, do defend- opinion support proposition ants Yamauchi and Ansai were not the operators 21,1963, on at Waikiki Circle Hotel within the of R.L.H. date injury, meaning *4 97-1, as it on that date. The in each of those holding cases was that owner lessee of the premises occurred was statutory such owner or a subcontractor because lessee was the proprietor on. The of the business carried operator question construction work for the whether a contractor doing done the work was was owner being premises of the business there operator proprietor been of those cases. That an issue in had question instant case. court prior presented squarely Ikezaki, In v. where Ike Tomondong zaki, a contractor a contract for construction of had a house for the owner of the land and contract included for that this court preparation ground purpose, “It is manifest that business that was page only being carried on at the time of claimant’s upon injuries was that of for the erec preparing piece unoccupied tion of a house It is thereon. also manifest the sole owner of this business was Ikezaki.” This statement operator dictum because the ultimate the case was holding claimant was not an of the subcontractor but a partner of the subcontractor as such was not entitled to compensa However, tion. I think it a correct represents interpretation The definition statutory language. contained 97-1, as it existed at the time of embraced not the owner or lessee who was the proprietor of the business there carried operator also “other operator there carried on.” Two other use identical jurisdictions language, here, as 97-1 mentioned in defining statutory They employer. are Idaho and Vermont. In both of these jurisdictions construction work for the doing owner of the land on which the work is done is held to abe em statutory of an ployer subcontractor. Nottingham, Gifford 68 Idaho P.2d Packett v. Moretown Creamery 91 Vt. 99 Atl. 638 (1917).