*1 LOPEZ, Individually parent Sr., Lopez, Jr., an and Julio infant of Julio Plaintiff-Appel- Individually, Lopez, Jr., lants, Defendant-Respondent. ALLEN, Rulon
No. 11660.
Supreme Idaho.
Aug. 6, 1975. *2 Whittier, Pocatello, plain-
R. M. for tiff-appellants.
Hugh Pocatello, Maguire, Jr., C. de- for fendant-respondent.
McFADDEN, Justice. Sr., Plaintiffs-appellants Lopez, Julio son, and his Lopez, Jr., instituted Julio against action defendant-respondent, Rulon Allen, to damages personal recover for in- juries Lopez, Jr., sustained in an Julio accident on Allen’s farm while he was employ. trial, Allen’s At returned special finding Lopez, verdict that Julio Jr., and Allen negligent each were percent. amount fifty Judgment was entered in accordance with the verdict. plaintiffs appeal judgment. from that reverse and We remand for a new trial. Lopez, (hereinafter who Julio), Julio Jr. at the years time of the accident IS was age, employed with other members his family by Allen assist in the harvest potato of Allen’s crop. For two one- days half potato on the har- worked fields; then, vester in day and a prior accident, half in the he worked potato cellar potatoes where the were stored on the he farm. While was work- ing September the cellar on he injured leg pinned when be- and a tractor drawn when such servant was at piler tween the time of the in the exercise of scraper unit. diligence following due care the field potatoes were moved (Emphasis cases:” I.C. add- At the cellar the cellar truck. ed.) *3 a by means of con- unloaded trucks were potatoes specific were The act then enumerated instances system; the veyor belt employer employ- “pup’’ from where the is liable to his conveyor called a by a moved pota- personal court, piled injuries. the ee for The the find- piler truck the ing in- that the a within employees, cellar was warehouse Several in the cellar. toes act, purview dirt and other the instructed the remove cluding would Julio, they in act on the issues of potatoes as moved accordance with the the from debris brother, Epi- assumption (I.C. 44-1401(6)), of the risk “pup”. Julio, his § down assigned Lorie, contributory negligence (I.C. 44-1402), fanio, sister, were his § (I.C. dirt and and the 44— removing of fellow servant doctrine task the additional § 1403). Giving truck had instructions was each of these the cellar after debris from assigned would as error. and Lorie unloaded. been Epifan- piles and then into rake the debris respondent legal The submits age, years of io, was 13 the time who at upon definition of a turns warehouse the cellar debris from would remove put; reasons facility to which a is he use scraper. mounted a tractor with storing is for that since the cellar used mounted on the a blade scraper unit was potatoes of the cellar should be considered be raised which could of tractor rear However, reject be a we warehouse. hy- of the tractor’s by means lowered or this rationale. system. draulic Liability Act Employers’ Epifanio when occurred The accident conjunction in must be considered with position to into backing the tractor as to Compensation Act so Workmen's' Epifanio backed the pile debris. move avoid, ap possible, any in the conflicts attempting as he was position; in tractor plication right employee’s acts the trac- gear so that shift into forward See, injuries. to recover for accidental debris,, tractor move the could tor statutory Sampson construction: or of seven distance moved backwards 453, Layton, P.2d 883 387 leg pinning between feet ten Julio’s (1974). The § Am.Jur.Statutes inju- resulting in his scraper piler and the provides a Compensation Act Workmen’s raking de- testified he ries. Julio statutory compensating for scheme piler he from and that bris underneath injuries working job with man on the acci- to the tractor when had back regard Em out to fault. dent occurred. agricultural pursuits is ex ployment in appeal empted coverage under the act unless The first raised this issue coverage. it in- 72- employer trial court erred elects whether the when I.C. §§ considering cer- 212(8), structed the accordance with 72-213. When provisions Employers’ Liability injured party or question tain of whether the pro- engaged “agricultural (I.C. seq.). Act 44—1401 et The act pursuits” injury, this : at the time of the vides general character court has looked to the “Every employer of labor or about performed than to the of the work rather * * * * * * warehouse, shall was in specific employee at task which employee be to his or servant for a liable jured place injury. or to the personal injury received such servant Swedund, “In this employee business of Mundell v. court rec service occupation or ognized the master or within state ‘the rule pursuit controlling as a whole is the fac sufficient itself to sustain a reversal. tor, determining given whether an If the instructions were a correct as a or in statement doc- engaged farm laborer relevant common law trines, pursuit, im agricultural say rather than the then we cannot trial that the performed itself, being ruling, by prejudiced mediate task court’s the sub- ” place performance rights appellants. such task.’ stantial Rind- See Darrah, Wilson, Bartlett lisbaker 76 Idaho P.2d 95 Idaho Thus, Mun quoting we must examine Swedlund, 29, 36, risk, P. assumption dell v. instructions contributory negligence, 2d 16 (1938). and the fellow servant doctrine. See, Perrault, 448, 304 Hubble v. risk, assumption reasoning Regarding
P.2d 1092
This same
*4
applicable
trial
employ-
jury
to
an
the
court instructed
an
determine whether
the
that
occupation
employee,
er
in
engaged
employment,
is
an
within the
shall
pre
be
purview
Employers’ Liability
of
Act.
sumed to
necessary
the
have assented to the
Otherwise,
application
employment.
a conflict in the
of
risks of the
The instruction
applicabili-
the two acts
then
could result.1 The
defined what constituted the neces
ty
spe-
Employers’ Liability
sary
employment.
of the
Act to a
risks of
This instruction
is
in
arising
person-
defective
provision
cific cause of action
that made no
injury
jury
al
be
for the
to
knowledge
must
determined
reference
consider Julio’s
general
employer’s
presumed
to the
of the risks
character of the
which he was
as
to
business
sume. This
employee
and the work which the
court has held that
de
“the
assumption
perform
was
fense
hired to
rather than
the
of the
to
risk in an em
specific
being performed
place ployer-employee relationship requires
task
the
or
that
performance.
employee
establish that his
knew
danger involved,
and that
case,
Under
facts of this
there
employee
appreciated
understood and
question
is no
but that
employed
was
Julio
risk
voluntarily
therefrom and
exposed
produced
in
crops
harvest
on Allen’s
himself
Smith,
thereto”. Meissner v.
94
n farm. There was no
that Allen
evidence
567,
563,
567,
Idaho
494 P.2d
571
crops
storing
was
for others
cellar
quoting
Mell,
110,
109,
94
Otto
Idaho
or that the
purpose
cellar was used for
Accord,
482
84,
(1971).
P.2d
85
Johnson
storing
potato crop.
other than
Allen’s
Ju
v. Stanger,
Idaho
95
lio’s cause of action
in
arose not from an
(1973).
given
The instruction
directed
jury
operation,
received in a warehousing
presume
jury to
that
understood and
Julio
farming
but from an
received in a
appreciated the
employment
risks of his
operation. Thus, it is the
conclusion
presume
well as to
that
ex
voluntarily
he
this court that
cause
not
of action is
Julio’s
posed
employ
himself to the risks of his
purview
Employers’
within the
Lia
ment. It
give
was error to
this instruction
bility Act.
under the facts of this case.
ruling by
A
this court
that
the trial
court erred in finding
potato
that Allen’s
jury
pur
The
was also instructed
provi-
cellar was a warehouse within the
to
suant
44—1402that
employ
I.C. §
“[t]he
Employers’
sions of the
Liability Act
not
er
shall not be
an
liable to
if the
engaged
agricultural pursuits
employers
1. If this court were to hold that Allen’s
warehouse,
construing
provision.
cellar was a
then we would be
the case law
I.O.
72-212(8).
See,
Blauser,
to
forced
housing
conclude that Allen
the ware
Backsen
probably
(1974) ; Manning
and so
business
P.2d
Stables,
Inc.,
entitled to recover
under
Workmen’s Com
Win Her
pensation
(1967).
Act. This
conclusion would be
P.2d
provision exempting
conflict with the act’s
Stanger,
(1901); Johnson v.
or
sonable care could a fellow servant necessary establish negligence, causing .injury fect to relationship no- and did not instruct give time to failed within a reasonable possible between employer, tice some as to the distinction thereof employer’s negli- person engaged fellow servant’s and superior himself supra; 53 See, Stanger, employment gence. master Johnson v. service or Servant, Master & who has to him some entrusted Am.Jur.2d general employ- superintendence, unless However, do have consider we not knew such superior already er or such inadequacies of the instruction law is well negligence”. defect or Case adopt an as we servant doctrine fellow contributory settled the defense doctrine exception the fellow servant negligence involves two elements: Supreme promulgated by “ * * * Washington. injured knowl person’s “ * * * edge physical characteristics Washington rule as to * * * instrumentality or condi offending doctrine fellow-servant tion does itself contrib not of constitute not to an the defense is available appreciation utory negligence. It servant, negli employer if the whose *5 of, appreciate opportunity the or the to gence injury, had the exclu caused the condition, peril instrumentality in an instrumentality by sive of the control knowledge physi than of the rather the injury Plem was inflicted.” plaintiff bars a cal characteristics Antles, 269, 324 P.2d mons v. 52 Wash.2d 2 negligence.” Hooten recovery (1958). 825 369, 377, 219 70 City Burley, Accord, Messick, Bennett v. 76 Wash.2d 651, 654 P.2d (1950). 474, 457 Wach- P.2d 609 Buss v. Accord, and Master Servant smith, (1937). 190 Wash. Am.Jur.2d Master and Serv- (1970); 56 § See, supra. In the Stanger, C.J.S. Johnson ant The instruction bar, Epifanía § case at had the exclusive employ- that the jury failed to instruct tractor control of the tractor was recognized, or er establish that must instrumentality injury which the Julio care, should have the exercise of due inflicted; thus, facts this was under the working recognized peril involved exception to fellow serv- case and the Thus, give it near a tractor. was error to rule, ant instruction on the fellow serv- this instruction. given. ant doctrine should not been have judgment upon must reverse the We jury The trial court instructed the errors in the basis of the instructions pursuant to on the fellow servant doctrine delineated above. The is remanded case not I.C. was 44-1403 that § for a new trial. Because we remand for a employee where injury for the liable trial, upon new it incumbent this court incompetence was caused assignments to discuss certain other of er- incompetency of a and the fellow I.C. 1-205. ror. injured employee to known assign Appellants notice as error the admission give to injured employee failed testimony incompetency. regarding into an evidence to his of such experiment performed tractor precept with the This basic instruction states the qualified as Allen and a witness who was the fellow servant doctrine. Am.Jur.2d See, expert an on tractor mechanics. basic Master & Servant § argument Co., is that the condi- thrust of their Ry. Zienke v. Northern Pac. recovery statute, contributory By removed. 2. to has been bar experiment long experi- tions of the were not validity substan- as to effect the of the tially similar to the conditions the acci- during ment. The tractor had been used injured. period dent in which time, but to what extent was fully developed record; not from the how- presented plaintiffs Testimony by the adjustments ever the record does disclose raised an issue as the tractor to whether during experi- were made on the clutch creep op- had tendency to when the hand presented ment. Nor was issue as Epifanio, erated disengaged. clutch was dissimilarity capabilities physical tractor, operating who was and another year youth of a compared thirteen old as witness testified that clutch was when the to an admittedly qualified adult as a trac- shifting disengaged preliminary expert. tor As pointed out Stuch- transmission from to a forward reverse bery Harper, P.2d gear tendency had a tractor move. if the trial court determines that prior twenty One week to trial and months experimental sufficiently conditions are after the accident Allen and the witness similar so that the evidence will mis- not qualified expert as an mechanic conducted lead, but will assist the in an intelli- experiment on the tractor in the gent understanding issues, the ex- approximate cellar at the location of perimental evidence should be admitted. adjusted the accident. The mechanic But the just converse of such statement is pulley clutch brake and then Allen and the e., true, if i. are conditions not suf- experimented mechanic the tractor to with ficiently similar so that the evidence would tendency determine the tractor had a mislead the then jury, not ad- should be creep. They both testified that the tractor Upon mitted. retrial the trial court di- creep did not disen- when clutch was give rected to due consideration to the ad- gaged while the transmission was shifted missibility testimony regarding the from reverse to a gear. forward experiment in light of the evidence *6 presented. This court has ruled that “evidence of extrajudicial experiment will be ex appellants The submit that the trial cluded unless the conditions under which court erred striking from the record a experiment was conducted are shown reference to Allen’s coverage. insurance to be substantially existing similar to those Specifically, appellant argues that
at the time the accident
Han
occurred.”
was error to strike the following answer
Miller,
sen
314,
v. Howard O.
given by
Lopez, Sr.
318,
739,
460 P.2d
The evi
“Q. He
say anything
never did
[Allen]
dence of
experiment
such an
is admissible
to you about the accident?
in the discretion of the trial court if it is
only
A. The
thing he
said was
[Allen]
determined that the conditions are suffi
sorry
he was
happened
about what
and
ciently similar so the evidence will assist
not worry,
that his
sup-
insurance was
and not
jury.
mislead the
Hansen How
posed to take care of the bill.”
Miller, Inc.,
ard
supra.
O.
If the condi
tions
substantially similar,
are
then the dif
objection
Defense counsel’s
to this state-
go
ferences in
weight
conditions
of ment was sustained and the trial court in-
admissibility.
evidence and not to its
structed the
disregard
the answer.
Hansen
Miller, Inc.,
v. Howard
supra.
O.
In
circumstances,
most
references
lia-
Here, the record
bility
discloses that the ex-
insurance are not admissible as the
periment was conducted in the same loca-
reference would not be relevant
the is-
tion in
However,
cellar.
seri-
sues of
McCormick,
the case.
Evidence
ous question
presented
(2d ed.)
to whether the
(1972). However,
this is
lapse of time
not
between
date of the acci-
an ironclad rule and there are certain
dent and
experiment
the time
exceptions.
was so
If party
admission of a
damages
bearing
negligence
(I.C.
1403)
includes
fellow-servant rule
§ 44—
applicable
subsequent
fact of insurance cover-
are
those
sec-
reference to the
since
that,
specifically provide
sub-
age
be severed without
tions
“The master
which cannot
of
stantially lessening the evidential value
shall not be liable under
admission,
provisions
of
to insur-
of
section 44-1401
then the reference
Thus,
44-1402,
.
.
.
in the context
.”
ance
be admissible
would
§§
McCormick, supra, p.
having
the de-
480.
Court
concluded that
the admission.
upon
provisions
light
fendant was not within the
The
sheds no
answer
Act,
implica- Employers’
those
Liability
none of
other than
issue
statutory
applicable, and the
from his state-
defenses were
which could be drawn
tions
law
probably
general
case
be tried on
common
should
ment
that his insurance would
prejudi-
principles.
possible
pay
hospital
The
bill.
Al-
impact
informing
cial
That
conclusion
the issue
raises
coverage far exceeded
len had insurance
thing
not
as a
whether or
there
such
The
any probative value of the statement.
common law fellow-servant
rule
Idaho
not
its discretion
trial court did
abuse
a cause
action based
absence of
striking the statement
from the record.
upon
Liability
Employers’
Act. The
Co.,
See, Barry
Arrow Trans.
is,
majority
willing
that there
and
assumes
Ter-
(1960);
Judgment for a reversed and remanded trial; inflicted under the exclusive control appellants. new costs to negligent employee, then fellow- DONALDSON, J., McQUADE, C. applicable. ra servant doctrine is not BAKES, JJ., SHEPARD and concur. Washington tionale of the cases “is based theory
on the exclusive control danger the vehicle which is a creates the BAKES, specially): (concurring Justice nondelegable duty respon remains Act, 44— Employers’ Liability I.C. § sibility Mes master.” Bennett v. seq., legislature 1401 et was enacted sick, Wash.2d in 1909 and has remained intact without exception enlarged at This exist 610. amendment. When Idaho first enacted *7 exception ing law fellow- common to the compensation workmen’s laws in application servant doctrine which denied coverage seq., most of the 44-1401 et of § negligent employee of the rule where the impliedly repealed because it was cov- position authority supervi was in a Compensation by ered Act. Workmen’s sion injured employee. Buss v. over ap- Consequently, very there has been little Wachsmith, 70 P.2d Wash. plication judicial construction of Am.Jur.2d, see Master and Serv Employers’ Liability Act. ant, In both instances § concluded, majority having and cor- negligent employee prin stands as a “vice so, rectly respondent that defendant Allen cipal” fellow-servant, rather a than and was not operating a “warehouse” within negligence imputed employer. is thus act, meaning of I.C. 44-1401 of the § exception and the fel- appearing engrafted on to that the activities of the respondent Washington by low-servant rule court do not come within really act, question raises the basic of what categories other then none of in place has provisions the fellow-servant doctrine concerning act’s other as- present jurisprudence. sumption day system our the risk (I.C. 1401(6)), § 44— deny contributory did negligence, While Court on one occasion (I.C. 44-1402), § cy employee principles. rule, relief to an injured because The fellow-servant doctrine, really Zienke v. is im- employer fellow-servant doctrine of Co., munity, philosophy Northern RR is a 8 Idaho another era Pacific subsequent place P. has present day cases the no jurispru- our has upheld findings Court dence. factual negligent employee that and the experiment Regarding the trac- with the injured employee were not fellow-servants. tor length which is discussed at ma- Stanger, Johnson v. jority opinion, opinion I am of the 303 (1973); Brayman Pugh Russell & circumstances were too dissimilar make Co., Lumber P. 932 valid experiment retrial on With of the Work- advent would direct the judge trial to refuse that Compensation
men’s Act, which eliminates evidence. any cause of action in tort in most situa- tions where the fellow-servant would rule applicable,
otherwise be and in view
exception Washington carved out
court majority which the of this has accepted, appears now very there to be lit- tle if anything left of the old common law COMPANY, ALL-STATES LEASING fellow-servant rule in this state. Plaintiff-Appellant, language analysis fel- An as set out I.C. 44— low-servant rule BASS, Station, Phillips Noah dba Bass “66” light legislative pol- sheds little the. Defendant-Respondent. icy of a em- regarding negligence fellow No. 11353. ployee. That section excuses the Supreme Court of Idaho. only caused liability injury is Aug. 6, 1975. coemployee.” “by incompetency negligence in that Nowhere section If the
intentional conduct even mentioned. “incompetency” is used in its usual
word
context, incompetency, e., mental i. problem really inapposite
section question of
now before the Court on the
whether or not be liable will to an caused co-employee. of a provides policy 44—1403
Since no
justification for doc- the fellow-servant
trine, and since fellow-servant doctrine obviously inconsistent with recent *8 negligence
trends the law of
have, among things, other eliminated the sovereign spousal
defenses of immunity,
immunity and contributory negligence, sub-
stituting comparative therefor, negligence expressly
this Court should reject the fel-
low-servant doctrine as common law
principle in state and allow of a co-employee be im-
puted general agen- under