196 P. 871 | Mont. | 1921
delivered the opinion of the court.
These appeals are prosecuted from the judgment and order denying defendant’s motion for new trial.
The defendant, New York Realty Company, is a corporation organized under the laws of the state of Montana, and is the
The complaint, after charging the corporate existence of the defendant and the representative capacity of the plaintiff, recites that the defendant was the owner of a certain office and apartment building in the city of Butte and was engaged in “operating and running” such building, and in connection therewith “was engaged in a hazardous occupation, to-wit, as a carrier of passengers and its servants by means of elevators operated by power-driven machinery.” Further, that the defendant had not complied with the provisions of" the Workmen’s Compensation Act (Laws 1915, Chap. 96), and was guilty of negligence in and about the operation of the elevator in such building, and that at a time when Clinton Page, an ele-, vator boy in the employ of the defendant, was absent from his cage, the defendant “carelessly and negligently” moved the elevator which he had been operating from the main or ground floor. Further, that “by reason of the dark and dangerous condition” of the elevator shaft and of the hallway and entrance on the main or ground floor leading to the elevator shaft maintained and permitted by the defendant, and because of the negligent moving of the elevator cage by the defendant, Clinton Page, one of the elevator boys, stepped into the elevator shaft and fell a distance of twenty-two feet to the bottom of the shaft, and, as a result of injuries sustained from such fall, died after surviving an appreciable length of time.
The answer of the defendant admits its ownership and operation of the Phoenix Building, the injury and death of Clinton Page, the representative capacity of the plaintiff, and the em
The reply consists of'a denial of the allegations of election to come under plan 2 of the Workmen’s Compensation Act, and of the other separate defenses made by the defendant. A trial to the court and jury was had .and resulted in a verdict and judgment in favor of the plaintiff for the sum of $5,000.
Nineteen assignments of error are specified, but in our view but two questions are necessary for disposition of the case on its merits, viz., the hazardous character of the employment and contributory negligence.
The pivotal question in the case is whether defendant was
At the outset it is noted that the defendant takes the position that it was not engaged in a hazardous employment within the purview of the Act, and that, if it was, then it had complied therewith by tendering to the Industrial Accident Board, in advance of the accident, full compliance with plan 2 of the Workmen’s Compensation Act. Without expressing opinion on the merits of the second alternative defense, it is passed as not necessary of decision in this case.
The causes, from a historical viewpoint, impelling the enactment of workmen’s compensation laws and the object thereof,
The following extracts from the Act bearing upon the subject are here set forth, comprising all of the provisions thereof necessary for consideration in the determination of the problem confronting us: ' „ .
“See. 3(a). In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be-a defense; (1) that the employee was negligent, unless such negligence was willful; (2) that the injury was caused by the negligence of a fellow-employee; (3) that the employee had assumed the risk inherent in, incident to, or arising out of his employment, or arising from the failure of the employer to provide * # * a reasonably safe place to work, or reasonably safe tools, or appliances.
“Sec. 3(b). The provisions of section 3(a) shall not apply to actions to recover damages for personal injuries sustained by household or domestic servants, farm or other laborers, engaged in agricultural pursuits, or persons whose employment is of a casual nature.
“Sec. 3(c). Any employer who elects to pay compensation as provided in this Act, shall not be subject to the provisions of section 3(a), nor shall such employer be subject to any*313 other liability whatsoever for the death of, or personal injury to any employee except in this Act provided. * * *
“Sec. 3(f). Every employer engaged in the' industries, works, occupations or employments in this Act specified as ‘hazardous’ may on or before the 1st day of July, 1915, if such employer be then engaged in such hazardous industry, work, occupation, or employment, or at a time thereafter, or, if such employer be not so engaged on said date, may on or after thirty days before entering upon such hazardous work, occupation, or employment, or at any time thereafter, elect whether he will be bound by either of the compensation plans mentioned in this Act. * * *
“Sec. 3(g). Every employee in the industries, works, occupations or employments in this Act specified as ‘hazardous’ shall become subject to and be bound by the provisions of that plan of compensation which shall have been adopted by his employer, unless such employee shall elect not to be bound by any of the compensation provisions of this Act. * * #
“Sec. 4(a). This Act is intended to apply to all inherently dangerous works and occupations within this state, and it is flic intention to embrace all thereof in sections 4(b), 4(c), 4(d), and 4(e), and the works and occupations enumerated in said sections are hereby declared to be hazardous.
“Sec. 4(b). * * * Tunnels, bridges, trestles; * * * iron or steel framed structures or parts of structures, electric light, or power plants, or systems, telegraph or telephone systems ; pile-driving, * * * towers or grain ’ elevators, not metal framed; * * * erecting fireproof doors or shutters; * * * freight or passenger elevators. * * *
“Sec. 4(c). Operation (including repair work) of logging, cable, electric * 0 * or other railroads; * * * grain elevators.
“Sec. 4(d). * * * Stamping tin metal; bridge work; railroad, car or locomotive making or repairing; cooperage; logging, with or without machinery; sawmills, shingle-mills. # # *
*314 “See. 4(e). * * * Operating stockyards, with or without railroad entry: * * * electric systems not otherwise specified. * * *
“Sec. 5.' If there be or arise any hazardous occupation or work other than hereinbefore enumerated, it shall become under this Act and its terms, conditions and provisions as fully and completely as if hereinbefore enumerated. * * *
“See. 6(c). Mill means any plant, premises, room or place where machinery is used * * * including elevators, warehouses and bunkers. * * *
“Sec. 6(j). ‘Employee’ and ‘workman’ are used synonymously, and means every person in this state, including a contractor other than ‘an independent contractor,’ who, after July first, 1915, is engaged in the employment of an employer carrying on or conducting any of the industries classified in sections 4(a), 4(b), 4(e), 4(e) and 5 of this Act, whether by way of manual labor, or otherwise, or whether upon the premises or at the plant of such employer, or who is engaged in the course of his employment away from the plant of his employer. * * *
“Part II. Compensation Plan Number 1. Section 30(a). Any employer in the industries, trades, works, occupations, or employments in this Act specified as hazardous, by filing his election to become subject to and be bound by compensation plan No. 1, upon furnishing satisfactory proof to the board of his solvency and financial ability to pay the compensation and benefits in this Act provided for, and to discharge all liabilities which are reasonably likely to be incurred by him during the fiscal year for which such election is effective, may by order of said board, make such payments directly to his .employees as they may become entitled to receive the same under the terms and conditions of this Act.
“Part III. Compensation Plan Number 2. Section 35(a). Any employer in the industries, trades, works, occupations, or employments in this Act specified as hazardous, by filing his election to become subject to and bound by compensation plan*315 No. 2, may insure Ms liability to pay the compensation and benefits herein provided for, in any insurance company authorized to transact such business in this state.
“Part IY. Compensation Plan Number 3. Section 40(a). Every employer, subject to the provisions of compensation plan No. 3 shall, in the manner and at the times herein specified, pay into the state treasury, in accordance with the following schedule, a sum equal to the percentage of his total annual pay-roll specified in this section; which said schedule is subdivided into classes, and the percentage of payments or premiums or assessments to be required from each of said classes is as follows: * * * Class 5. Operating f * * grain elevators. * * * Class 17. Operating dry-docks, * * * installing freight or passenger elevators. * * * Class 18. Carpenters not otherwise specified; constructing grain elevators, not metal framed. * * * Class 27. Any employer and his employees engaged in nonhazardous work or employment, by their joint election, filed with and approved by the board, may accept the provisions of plan No. 3. * * * ”
Counsel for the plaintiff contend that this Act from its title to the sequel indicates that in all hazardous occupations or employments the three so-called common-law defenses of contributory negligence, act of fellow-servant, and assumption of risk, are abolished, except that the employee may elect not to come within its provisions, and that certain occupations are specifically declared to be hazardous, and that no question of law or fact can be raised in dispute of this declaration. Further, it is contended that as to such employments as ,are specifically enumerated as hazardous in sections 4(b), 4(c), 4(d), and 4(e), no question of fact is allowed to be raised concerning the subject, but that as respects all other occupations and employments that may be in fact hazardous, whether existing at the time of the enactment of the law and omitted from enumeration or not, they come under the catch-all provision of section 5, supra.
Under the rule ejusdem generis, the general language embraced in section 5 of the Act under consideration does not, in our opinion, embrace the operation of passenger elevators, not being expressly enumerated in the provisions of the Act as hazardous nor of like character to those specified. That section has reference only to such employment or industries, other than those specifically named, as are of the same general character then existing or which may subsequently arise. Where
Under the doctrine of expressio unius est exclusio alter ius, a
We do not go to the extent of holding that hazardous occupations other than those specifically enumerated may not come within the provisions of the statute, but rather that the statute applies only to the employments specifically enumerated and such as are ejusdem generis, whether then existing or subsequently arising.
In the case of Guerrieri v. Industrial Insurance Com., 84 Wash. 267, 146 Pac. 609, the court had under consideration the same question in construction of the workmen’s compensation law with respect to its application to freight and passenger elevator operators not expressly enumerated in the Act, and through Mr. Justice Chadwick the court said: “It is the contention of appellant that the ‘elevators,’ which we have italicized, means freight and passenger elevators. When tested by the ordinary rules of statutory construction, we think it is clear that this is not so. The context of the section—the setting of the word—indicates a legislative intent to cover classes of business rather than particular pieces or kinds of machin
In a later Washington case reaffirming and approving the Guerrieri Case, supra, it appears that a janitor in an office building was injured while scrubbing down the walls and floor of the elevator shaft beneath the cage. The elevator was operated by electricity. The Workmen’s Compensation Act provided that the Act shall apply to all inherently hazardous employments, including, factories, mills and workshops where machinery is used. It was held that, though the elevator was operated by electricity,' the shaft could not be considered a workshop, that the employment was not extrahazardous, within the statute, and that the janitor’s rights were not governed thereby. (Remsnider v. Union Savings & Trust Co., 89 Wash. 87, Ann. Cas. 1917D, 40, 154 Pac. 135.)
In the administrative department of the state, it has been held by the Industrial Accident Board and the Attorney General that the operation of an office and apartment building is
It is our opinion that whether the employment of a person
In our opinion, based upon a construction of the statute, the defendant was not, by virtue of the Workmen’s Compensation Act, deprived of its common-law defenses, the employment not being hazardous as defined by the Act, nor ejusdem generis.
The next question is whether the plaintiff was guilty of such
Harold F. Rundle, who at the time of the accident was employed as an elevator boy at the Phoenix Building operating the elevator on the north side, testified as a witness for the plaintiff substantially as follows: “There are two elevators there. I was working there in the month of September, 1916, in that same capacity. I knew Clinton Page and was working there the day that Clinton Page was injured; saw him before the injury and saw him after the injury. On that day he was
In the case of Zvanovich v. Gagnon & Co., 45 Mont. 180, 122 Pac. 272, the plaintiff claimed damages against the defendant for alleged disregard of its duty to use ordinary care to furnish’ him a reasonably safe place in which to work, in that it carelessly left an open shaft in a building unguarded, and that while passing through the building for the purpose of seeking a place to urinate he fell into the unguarded shaft and was injured. After reviewing the evidence, the court said: “We think the plaintiff was properly nonsuited, for the reason, as disclosed by his own testimony, that he was guilty of contributory negligence. We shall assume, without analyzing the testimony on that point, that the act of the defendant in leaving the elevator shaft unguarded was negligence. The rule is that, if the issue of negligence or contributory negli
As stated by Mr. Chief Justice Brantly, speaking for the court in the case of George v. Northern Pac. Ry. Co., ante, p. 162, 196 Pac. 869: “In this jurisdiction it is the rule that contributory negligence is a matter of defense to be established by
Prom all of the affirmative proof introduced on the part of the plaintiff in this case, it seems clear that the decedent was not only guilty of contributory negligence, but that he was
For the reasons stated, the judgment and order are reversed, with directions to enter judgment in favor of the defendant.
Reversed with directions.