Buss v. Wachsmith , 190 Wash. 673 ( 1937 )

With reference to the liability of R. Wachsmith and wife, I disagree with the majority on the first and principal question discussed in the prevailing opinion, namely, whether the respondent Wachsmith, Jr., the son,

". . . sustained the relation to the plaintiff of fellow servant or whether the son was a vice-principal of the parents in the management and driving of the truck."

Upon that question, the substance of the majority opinion is contained in the following language:

"While, in the case before us, it is not alleged in the complaint that the son exercised any authority in directing the work of the other members of the crew, he was in exclusive control of the truck on which the men were riding. They had no voice in directing him nor any control over his movements. He was operating the truck as his father's alter ego in the performance of a nondelegable duty."

It is clear, from this language, that the majority holds that the son was, at the time in question, the vice-principal of his father and was then engaged in performing a nondelegable duty. It is not entirely clear to me, however, whether the son is held to be a vice-principal because he was a superior servant, or because he was at the time engaged in the performance of a nondelegable duty, or because of both conditions combined. In any event, I do not believe that either the facts herein or the law applicable thereto support the conclusion, as I shall endeavor to show.

The fellow servant rule, grounded in the doctrine of common employment, may be stated in its simplest form as follows:

"A master is not bound to indemnify one servant for injuries caused by the negligence of another servant in the same common employment as himself, unless the negligent servant was the master's representative." 4 Labatt's Master Servant (2d ed.), p. 4007, § 1393.

Stated somewhat more expansively and in the light of judicial expression on the subject, the import of the doctrine has been comprehensively set forth in 18 R.C.L., Master and Servant, p. 712 et seq., § 193, as follows:

"Perhaps no general principle of law has been more firmly established than that a master or employer is not responsible to those engaged in his employment for injuries suffered by them as the result of the negligence, carelessness, or misconduct of other servants of the same employer, engaged in the same common or general service or employment. If the employer has provided safe and suitable tools, machinery and appliances, in accordance with the duty imposed upon him by law, he is not to be held accountable for an injury resulting to one of his employees from the misuse or nonuse of the instrumentalities by another employee. Again, if an employer furnishes his employees with appliances and materials of suitable quality and in sufficient quantity to enable them to do a particular piece of work safely, he is not liable for an injury which results from the use of defective material or a defective appliance selected by a fellow employee. Nor may a violation of rules by a fellow employee be made the foundation of liability on the part of the employer. Similarly, the failure of an employee, in performing the work which he is directed to do, to give a fellow employee warning when doing an act which may endanger him, is not a fault attributable to the employer."

The rationale of the doctrine of common employment has been rested on various grounds, as follows: (a) that the master is liable to his servant only for his failure to do what he has contracted to do; (b) that the standard of care which fixes the limits of the master's obligations is fully satisfied when he provides a reasonably safe place of work, reasonably safe and suitable tools, appliances and machinery, and reasonably competent employees; (c) that the risk of injury through the negligence of a co-servant is a peril incident to the employment and is accepted as such by the employee, and (d) that a contract by the employee to accept the risks of a fellow servant's negligence may properly be implied on the ground of expediency and public policy, in that the opportunities of the employee for self-protection are greater than the employer's opportunity for prevention of injuries, and that the tendency of the doctrine is to make the servant more cautious in performing his duties, and, likewise, more watchful of his fellow servant in the discharge of his duties.

Whatever may be the sounder and basic reason for the doctrine, there can be no doubt that the rule is firmly established in this state, and in practically all of the states of the Union. While the doctrine has been increasingly restricted to meet changing economic conditions, and has even been declared by this court to be an "unpopular" rule herein, it has never been wholly abrogated in this state. In fact, we have specifically said, in Frengen v.Stone Webster Eng. Corp., 66 Wn. 204 (211), 119 P. 193, on which the majority relies, that, if the doctrine is to be entirely abrogated and written out of the books, "it must be done by the legislature, and not by the courts." In that very case, too, it may be added, the judgment in favor of the injured employee was reversed because the fellow servant rule was held to apply.

It is well known, of course, that in many respects the rule has been modified in this state by statute. I need mention only the factory act and the workmen's compensation act as forceful illustrations. Neither of those acts, however, nor any other of similar import, is invoked here. The particular question now before us is simply whether the rule under consideration has any application to, or effect upon, the state of facts here involved.

Now, what are the facts in this case? As shown by the record, the appellant was employed by R. Wachsmith and wife upon the Wachsmith fruit ranch from December, 1934, to September, 1935, the day on which the accident occurred. His work consisted variously of pruning, irrigating, assisting in the hauling of fruit, and other odd jobs. On September 17, 1935, appellant and three others, including respondent Richard Wachsmith, Jr., were engaged in hauling apples from the warehouse located on the Wachsmith ranch to a railroad siding some distance away. The four men loaded the apples into a truck at the warehouse, then drove or rode in the truck over a county road to the siding where the fruit was unloaded into a freight car, and thereupon returned with the empty truck to the ranch for the next load. Upon these trips, the truck was driven by Richard Wachsmith, Jr.; the other men rode back and forth with him in order to load and unload. It is not disputed that appellant Buss was in the course of his employment during all of this time.

On one of the return trips, the truck, while making a left turn at a road intersection, was struck in the rear by an overtaking car. As a result of the collision, appellant, who was seated in the back end of the truck with his legs dangling over the edge, was severely injured. It will be assumed, in accordance with the effect of the jury's verdict, that the driver of the truck, Richard Wachsmith, Jr., was negligent in failing to give a timely or proper signal of his intention to turn.

Now, in the light of these facts, what was the duty owing by R. Wachsmith and wife, the parents of Richard Wachsmith, Jr., to appellant, what was the employment relationship between the senior and junior Wachsmiths, and what was the status of the appellant with relation to the younger Wachsmith? All of these questions are interrelated and may be considered together and with two concepts in mind, namely, that of vice-principalship and that of nondelegable duties to be performed by the employer.

It may at once be conceded that the senior Wachsmiths owed the appellant the duty of providing a safe place to work, reasonably safe and suitable tools, appliances and machinery in the work, and reasonably competent employees.

No complaint is made of the place of work or of the appliances and instrumentality used. The only complaint that appellant makes relates to the driver of the truck, who was an employee. There is no contention, however, that the driver was generally incompetent or that he was known to be, or ever gave any evidence of being, generally negligent. The only complaint as to him goes to a single act of negligence. If liability of the employer to an injured employee springs automatically from the negligence of every employee, then the employer becomes an insurer, and there can be no escape under any circumstances whatever. That, in my opinion, is not the law in this state.

As to the employment relationship between the senior and junior Wachsmiths, there is nothing in the record suggestive of vice-principalship. There is no evidence that Wachsmith, Jr., exercised, or had the power to exercise, any authority whatever over appellant. The majority, apparently conceding this, stresses the fact that the driver was in exclusive control of the truck and that appellant had no voice in directing him, from which it is concluded that Richard Wachsmith, Jr., "was operating the truck as his father's alter ego in the performance of a nondelegable duty." Assuming the premise to be true, the conclusion does not inevitably, or even directly, follow.

Whether a negligent employee is, at a given time, a vice-principal, is determined by the nature of the functions which, as a matter of fact, he is discharging at the time when the injury is inflicted. Wholly aside from the specific act which the negligent employee may be performing, he must, in order to stand in the place of a vice-principal, have the power of control or supervision over his co-employee. 39 C.J. 574, § 691; R.C.L. 748, § 218. As stated in Allend v. Spokane Falls N.R. Co.,21 Wn. 324 (338), 58 P. 244 (248), "the power of superintendence and control is the test." This does not mean merely the control by an employee over an instrumentality, as the majority seems to indicate, but rather the power to direct and supervise the workmen and the work. The driver of the truck was, of course, in control of the truck in that he was operating it. But he had no more control over his co-employees than they had over him.

Lastly, the relationship of the appellant to Richard Wachsmith, Jr., was simply that sustained by two individuals in a common employment. They were both employees and were commonly employed in hauling apples from a warehouse to a freight car. Loading the apples, transporting them over the highway, and unloading them into a freight car comprised a chain of acts incidental and necessary to the common employment. Appellant's work did not cease when he had loaded or unloaded a particular lot of apples; nor did the driver's work begin or end with the mere operation of the truck. The work of hauling included loading, transporting, unloading, and returning. The act of driving the truck was no more a nondelegable duty than that of loading or unloading, and in none of these connected operations did any of the employees exercise control, direction or supervision over the others. Each was doing his task necessary to the complete performance of the work to which all had been assigned, namely, that of delivering the apples from one point to another.

Brief reference will now be made to the authorities relied on by the majority.

Frengen v. Stone Webster Eng. Corp., 66 Wn. 204,119 P. 193, has already been noted. In that case, the fellow servant rule, though held not to be a popular one in this court, was nevertheless made the basis of the decision denying recovery.

In Sroufe v. Moran Bros. Co., 28 Wn. 381 (385),68 P. 896 (897), 92 Am. St. 847, 58 L.R.A. 313 (315), it appears that a foreman had full direction and control of the men working in and upon a certain shipyard and vessel. The foreman directed an employee to take a certain position in the work of raising and lowering a cant. An improper signal given, or transmitted by, the foreman resulted in the cant being allowed to slip and fall, as the result of which the employee was injured. Since the foreman stood in the position of vice-principal, with the power of control and direction over the workman, and since the work necessitated the giving of required signals which it was the duty of the foreman to give, the master properly was held liable.

In Dyer v. Union Iron Works, 64 Wn. 577, 117 P. 387, a blacksmith's helper

". . . received his orders from the blacksmith under whom he was working, both as to the character of work he should do and as to the manner in which he should perform it."

In holding the master liable for the act of the blacksmith in putting a steam hammer in operation while the helper was in a dangerous position, this court said:

"We have held that where a master employs a number of servants to work with a dangerous agency and gives to one servant exclusive control of the agency with power to direct where the other servants shall work and the manner in which they shall work, the one given control is the representative of the master, that his negligence is the negligence of the master, and any one injured by reason of such negligence, not contributed to by him, has a cause of action against the master for the injury so suffered. [Citing cases.]"

Obviously, the decision was correct.

In O'Brien v. Page Lumber Co., 39 Wn. 537, 82 P. 114, it was held that a sawyer in control of a saw crew who were boundto obey his orders, was a vice-principal as to the duty of giving warning that he was about to operate a powerful machine at a time when one of the crew was in dangerous proximity thereto. Manifestly, that decision was correct.

Dossett v. St. Paul Tacoma Lumber Co., 40 Wn. 276,82 P. 273, was "a case similar in all its essential features" to the O'Brien case, and, naturally, a similar result was reached.

The two cases of Brabon v. Seattle, 29 Wn. 6, 69 P. 365; and Leland v. Chehalis Lumber Co., 68 Wn. 632, 123 P. 1086, present points of similarity to each other and, to some extent, a similarity to the case now before us. There is, concededly, some language in both of those cases which, upon its face, may be taken as favorable to the majority opinion in respect to the fellow servant rule. However, the expressions therein used were purely obiter dicta, as a reading of the cases will disclose.

In the Brabon case, the decision was rested squarely on the failure of the city of Seattle to maintain one of its streets in a reasonably safe condition, and, as the court held, whether such negligence was the sole negligence of the city or whether it combined with the negligence of the driver, was immaterial so far as the liability of the city was concerned. The city was liable in any event. The court did not determine whether the driver of the cart involved therein was negligent, but, upon the assumption that he might have been, held that the city was, nevertheless, liable for its own negligence. It might also be noted that, in that case, it was shown that it was the duty of the driver of the cart to select the route, and that he had selected an ungraded street. We have no such situation here.

The Leland case is even less controlling, for there the decision was predicated squarely and solely upon the failure of the employer to maintain its private road in a reasonably safe condition. The opinion expressly holds that no negligence on the part of the driver had been shown, and hence any reference in the case to fellow servants or the fellow servant rule was unnecessary and obiter dictum.

The cases cited by the majority do not, in my opinion, support a holding that Richard Wachsmith, Jr., was a vice-principal merely because he happened to be operating the truck at the time. His duty was but part of the general duty of all those then commonly engaged, namely, the duty of hauling apples. Since they were all so engaged, they were fellow servants.

I can see nothing that the senior Wachsmiths did or failed to do which should render them liable to appellant. As to them, I think that the judgment of the court dismissing the action should be affirmed.