255 P. 110 | Wash. | 1927
The respondent was injured in August, 1925, while at work icing a refrigerator car belonging to the Northern Pacific Railway Company. The Addison Miller Company and the Northern Pacific Railway Company, in October, 1924, had made a contract whereby the railway company leased to the Addison Miller Company an ice house and icing platform which the railway company owned, and the lessee agreed, at its own cost and expense, to furnish and install ice-manufacturing machinery and to equip the building with suitable refrigerating and handling devices and to provide for storage of great quantities of ice. The lessee further agreed to manufacture, sell and deliver in the bunkers of all refrigerating cars which the railway company might set out at the icing platform all the ice that was required for use by the railway company. The railway company agreed to purchase all the ice that it might require at Pasco where the ice plant was situated, and to pay a stipulated sum per ton for the ice upon monthly statements. The contract was to continue for a period of ten years. The railway company had the right to inspect the work performed by the Addison Miller Company, for the purpose of ascertaining whether it was complying with the agreement. The Addison Miller Company was to *273 furnish all men, supplies and material for this work, select all its help and fix their wages, and had the exclusive power of directing them as to their duties and the time and place where they should perform them; the railway company having no authority in any manner over such employees.
The respondent was an employee of the Addison Miller Company, his wages were fixed by that company and paid by it, and the foreman of that company directed him as to the time and place where he should work; and on the day on which he received his injury, the respondent was employed in chopping up and tamping ice into the ice chambers of a refrigerator car owned by the railway company and situated upon a track of the railway company at the icing platform. This platform was constructed with a conveyor a little above it, and ice was pushed upon the conveyor from the ice house and by means of lugs was carried along the platform to points where the ice was needed for the cars. It was then pulled off the conveyor onto the platform and chopped into pieces weighing approximately fifty pounds each. There led from the platform a small chute about eight feet long and twenty-two inches wide, with one end resting upon the platform and the other, or lower end, upon the top of the car where the ice was to enter. This chute had about a fourteen per cent incline.
Fellow-employees of the respondent had the duty of pulling the ice off the conveyor and chopping it into chunks and pushing it down the chute to the respondent at the car. The ice on the chute had to be given a shove in order to start it, the incline not being sufficient to carry the ice of its own weight. The respondent was given and was using a picaroon about six feet long, with prongs on one end, with which to seize the fifty-pound chunks of ice coming down the *274 chute, and to chop it, when it reached the car, into small pieces. The employees on the platform failed to cut a piece of ice, weighing some four hundred pounds, into fifty-pound chunks, and shoved down a piece of ice weighing about two hundred pounds, which struck the respondent's picaroon — which was in the bunker at the time — causing the picaroon to strike the respondent and knock him off the car and to the ground; he at the time having been standing within a few inches of the edge of the car and having no warning that the ice was being shoved down the chute.
This action was begun under the Federal employers' liability act and was tried upon that theory. At the end of the case, a motion for a directed verdict was granted, and thereafter the court granted a motion for a new trial, from which this appeal has been taken.
[1] Viewing the case as one governed by the Federal employers' liability act, it must be held that the respondent had no cause of action against the appellants. That act provides that, "Every common carrier by railroad" while engaging in interstate commerce shall be liable in damages to any employee "while he is employed by such carrier in such commerce," for any injury resulting from the negligence of any such carrier's employees; and further provides that any contract,
". . . the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void."
The question, then, first, for consideration under this act, is whether, at the time of the respondent's injury, he was an employee of a common carrier by railroad. To answer this question, it is necessary to determine the effect of the contract between the Addison Miller Company and the Northern Pacific Railway Company. Under the authorities, that contract was valid and constituted *275 the Addison Miller Company an independent contractor, and its employees would not be employees of the railway company engaged in interstate commerce; nor would the Addison Miller Company itself be within the terms of the Federal employers' liability act.
The supreme court of the United States, in Robinson v.Baltimore Ohio R.R. Co.,
In Chicago, R.I. P.R. Co. v. Bond,
In Hull v. Philadelphia R.R. Co.,
In Wells Fargo Co. v. Taylor,
In Drago v. Central R. Co. of New Jersey,
In Polluck v. Minneapolis St. L.R. Co.,
This court has had the question of independent contractors under consideration in a few cases, and in Campbell v. Jones,
"The record does not show that the railway company was in any manner concerned in the employment of the appellant. It did not hire him directly, nor did it attempt in any manner to direct or control his work while he was engaged in excavating for the pier. Its contract was with Jones Onserud. It employed that firm to do the work, leaving them to perform it according *278 to their own methods, and with their own tools, materials, and employees, subject to the one condition that certain defined results be obtained."
In Johnston v. Seattle Taxicab Transfer Co.,
"The general rule is that an independent contractor is one who renders services to another in the course of an independent occupation, representing the will of his employer only as to the result of the work and not as to the means by which it is accomplished; the chief consideration being that the employer has no right to control as to the mode or manner of doing the work; but a reservation by the employer of the right to supervise the work for the purpose of determining whether it is being done in accordance with the contract does not affect the independence of the relation."
See, also, Kendall v. Johnson,
[2] It is most strenuously urged by the respondent that, although his action was commenced and tried as one arising under the Federal employers' liability act, it could not be dismissed if he had introduced any evidence which would entitle him to recover under the state statute. Assuming, without deciding, that he was not foreclosed by his pleadings, or by what transpired in the trial, from urging his statutory rights, still the result must be the same. Rem. Comp. Stat., § 7693 [P.C. § 3486], the benefit of which the respondent claims he is entitled to, can not apply to one in his situation; for that section refers to
". . . the case of employees engaged in maintenance and operation of railways doing interstate, foreign and intrastate commerce."
As has already been shown, the evidence clearly shows that the respondent was not an employee of *279 the railroad company and that the Addison Miller Company, of which he was an employee, was not a common carrier by railroad. Nor can the respondent find any comfort in Rem. Comp. Stat., § 7695 [P.C. § 3515-72], which makes the Workmen's Compensation Act apply to employers and workmen (other than railways and their workmen) engaged in intrastate and also in interstate or foreign commerce; for there is no evidence in the case showing that the Addison Miller Company was engaged in intrastate and also in interstate and foreign commerce, or that any rule of liability or method of compensation had been fixed by the Congress of the United States for employers and workmen doing business as was the Addison Miller Company and its workmen.
Of course no common-law liability existed on the part of the Addison Miller Company, for the reason that it is apparent and undisputed that the damage to the respondent was the result of the negligence of a fellow-servant.
The law seems to be clear that the respondent has no cause of action and that the trial court was correct in granting the motion for a directed verdict.
The respondent, however, cites us to one opinion of this court from which he derives comfort and which, it must be admitted, contains language — unsupported, however, by any citation of authority — which would indicate that the respondent had a right to maintain this suit. That language was not necessary to the decision of the case and, as already said, was unsupported by authority and in fact is contrary to what is practically the unanimous decision of all the courts which have considered this question. The case referred to is State v. Bates RogersConstruction Co.,
Being satisfied, therefore, that the trial court was correct in determining that there was no cause of action proved and that the respondent was not entitled to recover either under the Federal or the state act, we conclude that the court was in error in thereafter granting a new trial.
The cause will be remanded with directions to enter judgment for the appellants.
TOLMAN, ASKREN, and PARKER, JJ., concur. *281