71 P.2d 548 | Wash. | 1937
Lead Opinion
MILLARD, J., dissents.
We consider all questions, Federal and state, were correctly decided except the second question urged in the petition for rehearing.
[1] It now becomes necessary to inquire as to the right of an employee of a common carrier to sue a third person, a coemployee in the instant case, under the Federal employers' liability act (1906) 34 Stat. 232, and as amended (1908) 35 Stat. 65 (
"The Federal Employers' Liability Act does not modify in any respect rights of employees against one another existing at common law. To deny to a plaintiff the right to join in one count a cause against another *427
employee with a cause of action against the employer, in no way abridges any substantive right of the plaintiff against the employer." Lee v. Central of Georgia R. Co.,
See, also, Cott v. Erie R. Co.,
[2] In view of the fact that the common law right of action of an employee against a third party was not impaired by the Federal employers' liability act, the three year statute of limitations is applicable to appellant Hall. Rem. Rev. Stat., § 159 [P.C. § 8166].
[3] Respondent was manifestly entitled to join Hall as a party defendant under the facts here. In this state, it has never been questioned that master and servant may be sued jointly, but has usually been assumed. Mitchell v. Churches,
[4] The doctrine of respondeat superior is not decisive of this case and the release of the master does not release the servant. It is conceded that, if only the negligence of Hall in negligently watering the bricks were involved and there were no independent negligence on the part of the railroad, that a verdict exonerating the master would also exonerate the servant.Sipes v. Puget Sound Electric Ry.,
The judgment herein is accordingly modified so as to affirm the judgment of the trial court with respect to Hall but in all other respects remains as heretofore entered. *428
Respondent is awarded costs as against appellant Hall.
STEINERT, C.J., MAIN, BLAKE, TOLMAN, BEALS, GERAGHTY, and ROBINSON, JJ., concur.
Dissenting Opinion
The right to recovery under the Federal employers' liability act arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employee is employed by the carrier in such commerce. Pedersen v. Delaware,L. W.R. Co.,
I question the constitutionality of the act (Rem. Rev. Stat., § 7693) if it be construed as an attempt to place intrastate employees of an interstate carrier under the provisions of the Federal employers' liability act.
If the proviso upon which the majority rely be correctly construed — it surely does not add a class of employees which is not included in the body of the statute — respondent was not at the time of his injury performing an act of interstate or intrastate commerce in saving domestic coal of appellant railroad company; therefore, not being hurt while employed by a carrier which was at the time engaged in interstate or intrastate commerce, the three year statute of limitation is applicable to both appellants.
The judgment should be affirmed against both appellants. *429