Perry v. Beverage , 121 Wash. 652 ( 1922 )

Main, J.

The purpose of this action was to recover damages for personal injuries. The defendants are the Webb Logging & Timber Company, a corporation, and James Beverage, its superintendent or foreman. Separate answers were interposed by the defendants. In each there were certain adjnissions and denials, and an affirmative defense which was to the effect that, if the plaintiff sustained injuries, they were due to bis own fault in making an assault upon the defendant Beverage and were inflicted as a matter of self-defense on the part of this defendant. The affirmative defenses were denied by a reply. The cause was tried to the court and a jury. At the conclusion of the evidence, each of the defendants presented a motion for a directed verdict. These motions were overruled, and the cause being submitted to the jury, a verdict was returned in favor of the plaintiff in the sum of $1,850. After the return of the verdict, each of the defendants made a motion for judgment notwithstanding the verdict. These motions were likewise overruled and judgment entered upon the verdict, from which both of the defendants appeal.

Tbe facts necessary to an understanding of tbe questions presented may be summarized as follows:

On the 17th day of December, 1920, the appellant Webb Logging & Timber Company was operating a logging camp near Duckabusb, in Jefferson county. The appellant Beverage was the foreman or superintendent in charge of the camp. The respondent Perry was employed in the camp as a bucker. On the morning of the day in question, Perry gave notice to Beverage that be desired to quit bis employment that evening. Not having any scaler at the time, Beverage requested one Earl McArdle, an employee in the forest service of the United States, then at the camp, to scale the logs which Perry bad bucked, for which he was entitled to compensation. Perry worked during that day; the exact time of Ms ceasing to labor does not appear. That evening at about 6:30 o ’clock, Perry came to the office of the company, which was at the camp, and entered into a controversy with McArdle over the scale that had been turned in, Perry claiming that the scale was too small and McArdle insisted that it was accurate and properly made. At tMs time Beverage, the superintendent, and two or three other persons, were in the office. After the discussion between Perry and McArdle had continued for some minutes, Beverage got up from a .chair in which he was sitting and, moving over to near where Perry was standing, said to Mm that “that will be enough,” or something to that effect ; Perry replying by directing Beverage to go back and sit down. Some further conversation took place between Perry and Beverage during which Beverage picked up an enameled water pitcher and struck Perry a violent blow on the left side of the face, seriously injuring him. The testimony as to whether Beverage at the time was acting in self-defense or whether it was a deliberate or wilful assault is directly in conflict. The present action was brought by Perry to recover damages for the injuries which he sustained on this occasion.

The questions to be determined will be considered in what appears to be their natural sequence. The first question is whether Perry, at the time he was struck, had ceased to be an employee of the logging company. Prom the facts stated, it appears that he gave notice on the morning of that day that he was intending to quit work. After he had his evening meal at the camp, and at about the hour of 6:30 p. m., he went to the office for the purpose of ascertaiMng the amount of the scale and receiving his compensation. Under the authorities, there can be but little, if any, question but wliat the relation of employer and employee had not been terminated at the time. In Pace v. Appanoose County, 184 Iowa 498, 168 N. W. 916, it was said:

“The test in determining whether the injury has arisen in the course of employment is then said to be where the deceased, ‘though actually through with the work, was still within the sphere of the work, or was doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.’ The decisions of the courts and commissions are uniform in holding that if an employee has reached his employer’s premises on his way to work or is still on the premises on his way home and meets with an accident, usually it will be adjudged to have arisen out of the employment.”

In In re Stacy, 225 Mass. 174, 114 N. E. 206, it was said:

“While the employee’s work for the day had been finished and he was on his way home- at the time of the fatal accident, still it is settled that an injury to a workman may arise out of and in the course of his employment even if he is not actually working at the time of the injury.”

In Hackley-Phelps-Bonnell Co. v. Industrial Commission, 165 Wis. 586, 162 N. W. 921, it was said:

“The essential elements of the contract of employment were that the employee should render services for the employer, and in return therefor the employer should pay him an agreed compensation. The duty to pay and the right to receive the compensation were integral parts of the contract of employment. For the convenience of the employer the place of payment was some distance from the place of service, but in going to and from such place of service the conveyance furnished therefor by the employer was used by the employee. So in going to get his pay he was but fulfilling a duty imposed upon him by the employer and using the means of conveyance which the employer furnished his employees for such purpose.

“The general principle is that employment exists only in the area of duty. 1 Bradbury, W. C. 405. Tested by this principle, the employee comes within it. He was entitled under his contract to receive compensation for his services. His employer directed him to go to a place some distance from his work to get his pay and offered him the means of transportation for going there. He went in obedience to the duty placed upon him by his employer and acquiesced in by him, performing the. last act under the contract whereby each could receive the full benefit thereof. Had the employer paid him at the camp, a different question would be presented.

“A number of cases are cited by the plaintiff holding that employees receiving injuries while coming or going to their employment in vehicles gratuitously furnished by the employer are not entitled to compensation. These do not touch the present case, because those injuries were received before the employment began or after it terminated. Here the employee, as we have pointed out, was still performing a duty imposed upon him by his employer and one necessary to perform before the terms of the contract of employment were mutually satisfied.

“If we turn to the text-books and decided cases on this subject, we find that they sustain the view that an employee going in the usual manner for his pay to a place designated by the employer is performing a service within his employment.”

The relation of employer and employee not having been terminated at the time Perry sustained his injury, the latter was entitled to compensation under the industrial insurance act of this state. As will hereinafter be pointed out, this would not necessarily deprive .him of the right to a law action in addition to compensation from the industrial fund, under the facts in this case.

The next question is whether, when Beverage struck Perry, lie was acting within the scope of his employment. On this question Beverage testified as follows:

“On the 17th day of December, 1920,1 was foreman of the camp of the Webb Logging & Timber Company. Yes, I was the principal man in charge of that camp at that time. I have been active foreman for the logging company since 1911, with the exception of one year I was not active; that is, I was not active in the camp. There was no one else at the camp on this date who had any authority over me. I was in charge of the discipline of the same and the order of the camp at that time. (St. 44, 45) ”

Prom this testimony it appears that Beverage was in charge of the camp at the time as foreman, and there was no one else there who had authority over him. It was his duty to maintain discipline and order at the camp at the time. There is no substantial distinction between this case and that of De Leon v. Doyhof Fish Products Co., 104 Wash. 337, 176 Pac. 355, where it was held that an employee who was assaulted by the superintendent of the defendant company had a right of action against his employer. The same defense was made there as here that the act was not within the scope of the employment. The case of Matsuda v. Hammond, 77 Wash. 120, 137 Pac. 328, 51 L. R. A. (N. S.) 920, is relied upon by the logging company as sustaining its contention that the act was beyond the scope of the employment. Referring to that case in the De Leon case it was said:

“As there said, the general liability of the master to answer for the tort of a servant rests in the peculiar character of the employment, which, from its nature, is liable to create disputes and consequent breaches óf the peace. It was so in this case, the authority of the superintendent to maintain discipline and to exercise a general discretion in the performance of his duty excepts the case from the rule in the Matsuda case and brings it within the exception there noticed.”

Under the facts of the present ease, it is controlled by the De Leon case and not by the Masuda case.

The next question is whether, when Beverage struck Perry, he did so with the deliberate intention to injure him. Even though Perry was engaged in extra-hazardous employment as defined in the workmen’s compensation act, and was entitled to compensation from the industrial fund, he has a right of action where his injury was the result of deliberate intention. Section 7680, Rem. Comp. Stat., provides:

“If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the workman, the widow, widower, child or dependent of the workman shall have the privilege to take under this act and also have cause of action against the employer, as if this act had not been em acted, for any excess of damage over the amount received or receivable under this act.”

Under the evidence, the jury had a right to find that there was a deliberate intention on the part of Beverage to do injury. The instructions given upon the trial are not brought to this court, and therefore it is presumed that all questions proper for the jury to pass upon were submitted to them by instructions which correctly stated the law. There was evidence which would support a finding that the blow was struck without provocation and not in self-defense. As already stated, the evidence upon this question was in conflict. Beverage testified that: “Yes, I struck him with all my might. I don’t know just how hard I did strike him.” The full force of the blow was received by Perry, as already stated, upon the left side of the face. The jury had a right to find that the blow was struck with a deliberate intention to do injufy. In Jenkins v. Carman Mfg. Co., 79 Ore. 448, 155 Pac. 703, it was said:

“We think hy the words ‘deliberate intention to produce the injury’ that the lawmakers meant to imply that the. employer must have determined to injure an employee and used some means appropriate to that end; that there must be a specific intent, and not merely carelessness or negligence, however gross.”

That excerpt was quoted with approval in the case of Delthony v. Standard Furniture Co., 119 Wash. 298, 205 Pac. 379. Perry, at the time he received his injury, being entitled to take under the workmen’s compensation act, and the injury being with a deliberate intention, he was entitled in the present action to recover, as stated in the section of the statute above quoted, “for any excess of damage over the amount received or receivable under this act. ’ ’ By this statute he was entitled to recover for his injuries, less the amount which he had received, or was entitled to receive, under the workmen’s compensation act. There is no evidence in this case as to what that sum was.

The next question then is, where rests the burden to prove the amount which Perry had received, or was entitled to receive, from the industrial fund. If this burden rests upon Perry, he has failed to allege and prove it and one element of his action would be lacking. If the burden rests upon the employer, the logging company is not in a position to complain of this lack of proof. In Zwaduk v. Morris & Co., 109 Kan. 186, 197 Pac. 868, it was held that, where an injured workman sustains partial, temporary disability, continuing after a period of total disability, evidence must be introduced to prove the wages that he will be able to earn during the period of partial, temporary disability, and the burden of proof is on him to show that fact. It was there said:

‘ ‘ The plaintiff argues that the burden was on the defendant to establish the amount that the plaintiff will be able to earn during his period of partial disability. This argument is not good, for the reason that judgment cannot be rendered in favor of the plaintiff until he proves his cause of action. To do that he must prove his employment, his injury, the wages that he was earning before, and the wages that he has earned and will be able to earn after the expiration of the period of total disability. Without evidence on all these propositions, judgment for compensation for the period of partial disability cannot be rendered in his favor, for the reason that he does not bring himself within the statute. The plaintiff must prove the wages that he has earned and will be able to earn during the time he is under partial disability, or there will be no basis from which to calculate the amount of his compensation. ’ ’

In Acres v. Frederick & Nelson, 79 Wash. 402, 140 Pac. 370, 5 N. C. C. A. 557, an action was brought against the defendant for personal injuries. One of the questions which arose was on which party rested the burden to allege and prove that the defendant, the employer, was in default in making payments to the industrial fund. Under the statute as it then existed, which has been since amended as pointed out in Freyman v. Day, 108 Wash. 71, 182 Pac. 940, it was held in the Acres case, supra, without discussion, that the burden was upon the employer. The question, however, was not raised in the pleadings and was not suggested in the trial court. Conceding that the Acres case was correctly decided, it is not controlling here. In this case the failure to prove the amount received or receivable under the workmen’s compensation act was a part of Perry’s case. It affected the amount which he was entitled to recover. There was no duty on the part of the logging company to ascertain and determine this amount. In the Acres case, it was the duty of the defendant to meet its premiums, and if they were not paid, the matter was one which was within its immediate knowledge. This question in this case was specifically raised upon the motion interposed by the logging company at the conclusion of the evidence and before the case was submitted to the jury.

The next question is whether, there being a failure of proof as to the amount of compensation received or receivable from the industrial fund, and the duty being upon Perry to allege and prove this, the result should be a new trial or a directed judgment of dismissal. The respondent argues that the motion for judgment notwithstanding the verdict, inasmuch as no motion for a new trial was made, should be considered such a motion and a new trial should be directed in order that the respondent might supply the proof which is lacking. In Forsyth v. Dow, 81 Wash. 137, 142 Pac. 490, it was said, referring to a motion for judgment notwithstanding the verdict, “Nor does the statute make the motion in any way dependent upon or concurrent with the motion for a new trial.” In Brown v. Walla Walla, 76 Wash. 670, 136 Pac. 1166, it was pointed out that the motion for judgment notwithstanding the verdict invokes no element of discretion, but calls for the exercise of purely judicial functions of the trial court and of this court on review. It was further pointed out that the motion for a new trial invokes, on the other hand, a compound of the discretionary and judicial functions, both the discretion and the attendant responsibility of its exercise being vested in the trial court. In Kieburtz v. Seattle, 84 Wash. 196, 146 Pac. 400, it was held that a party is not precluded from seasonably interposing a motion for judgment notwithstanding the verdict by suffering the case to go to the jury on the facts without interposing a motion for nonsuit, a motion for a directed verdict, or a chailenge to the sufficiency of the evidence. In Roe v. Standard Furniture Co., 41 Wash. 546, 83 Pac. 1109, it was said:

“This court has repeatedly reviewed decisions of trial courts refusing to direct verdicts, and we are of the opinion that it is the proper practice for a trial court, upon the hearing of a motion for judgment non obstante veredicto, to enter final judgment in favor of either party where it is warranted by the undisputed evidence. The facts being undisputed, it becomes the duty of the court to apply the law, there being no issue to submit to a jury. While the above rule of practice may not have been heretofore expressly announced by us, we have nevertheless in a number of cases put it into practical effect and recognized the principle above enunciated.”

The supreme courts of Minnesota and North Dakota treat the motion for judgment notwithstanding the verdict in a different way. In those jurisdictions the motion will not be granted unless there is no reasonable probability that the defects in the evidence, or the proof necessary to support the verdict, will not be remedied upon another trial. Those courts treat the motion for judgment notwithstanding the verdict, where there is reasonable probability that the defective proof may be supplied upon another trial, as a motion for a new trial. The holdings are placed upon the respective statutory provisions of those states. Marquardt v. Hubner, 77 Minn. 442, 80 N. W. 617; First State Bank of Eckman v. Kelly, 29 N. D. 84, 152 N. W. 125. But the rule in this state is different, as shown by the cases from this court above cited and quoted from. The proof being defective, there is no alternative but to reverse the judgment as to the Webb Logging & Timber Company and direct a judgment of dismissal as to it.

The final question is whether the judgment of dismissal against the logging company affects the judgment against Beverage. Perry was an employee of the logging company, not of Beverage, who was the superintendent or foreman of that company in charge of the camp. The logging company was performing the work which was within the provisions of the workmen’s compensation act, there defined as being extra-hazardous. Beverage, as a superintendent or foreman, individually had no relation to that act. In the absence of the statute placing those engaged in extra-hazardous work under its provisions, the respondent would have had an action both against the logging company and against Beverage. The placing of the logging company’s work under the act did not deprive Perry of a right of action against Beverage. In Stertz v. Industrial Ins. Comm., 91 Wash. 588, 158 Pac. 256, Ann. Cas. 1918B 354, an employee of a logging company was shot and killed by one not in the employ of that company. The question was whether the family of the deceased had a right to compensation under the workmen’s compensation act, and it was held that they had such right. That case, however, does not go to the extent of holding that they would not have had a right of action against the wrongdoer.

The judgment will be reversed as to the Webb Logging & Timber Company with direction that the action as to this party be dismissed. The judgment as to Beverage will be affirmed.

Parker, C. J., Mackintosh, Holcomb, and Hovey, JJ., concur.