# Latimer v. Western MacHinery Exchange

> Washington Supreme Court · June 25, 1953 · 42 Wash. 2d 756

URL: https://www.frixlaw.com/law-library/cases/9543796

## Case

- **Full name:** Willard Latimer, Appellant, v. Western MacHinery Exchange, Respondent
- **Court:** Washington Supreme Court
- **Decided:** June 25, 1953
- **Citations:** 42 Wash. 2d 756; 259 P.2d 623; 1953 Wash. LEXIS 509
- **Precedential status:** Published
- **Opinion:** Concurrence by Finley
- **Judges:** Hill, Finley
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9543796

## Opinion text

Finley, J.
(concurring specially)—I have signed the majority opinion overruling the decision of Department Two in the Latimer case, 40 Wn. (2d) 155, 241 P. (2d) 923 . However, because I signed the original opinion in the Latimer case, supra, and wrote the original opinion for Department Two in the case of Pink v. Rayonier, Inc., 40 Wn. (2d) 188, 242 P. (2d) 174 , where we followed the rule theretofore *762 announced in the original Latimer case, supra, I wish to assume my full share of responsibility for our opinions in those cases and for our subsequent decision here to overrule the original Latimer opinion. With this in mind, I feel compelled to elaborate to some extent on my personal views respecting the main questions involved in rehearing the Latimer case.
In the opinions heretofore rendered by Department Two in the Latimer case, supra, and the Pink case, supra, we held that a self-employed individual, engaged in extrahazardous work as a business or occupation, was an employer under our workmen’s compensation act, and was barred by the act from asserting a common-law cause of action for personal injury against another employer when the latter is engaged in extrahazardous work and is covered under the act, irrespective of whether such self-employed individual, or employer, had qualified for benefits under the industrial insurance act. Petitions for rehearing En Banc were granted. Both cases have been reargued. The facts are fully outlined in the Departmental opinions cited above, and reference thereto may be desirable for a full understanding.of the two cases. Here, I shall only state briefly that in Latimer, appellant was a self-employed individual, associated and working with two other individuals in a logging venture. The associates or partners purchased a donkey engine from the Western Machinery Exchange Co. While loading the donkey engine upon a truck and trailer for transportation to the scene of their logging operations, appellant was injured, allegedly through the negligence of employees of the Western Machinery Exchange Co. The latter company was an employer, engaged in extrahazardous work under the act.
In his brief and argument before Department Two at the initial hearing on this matter, appellant Latimer contended and raised the basic question that the industrial insurance act was not a bar to his common-law cause of action against the respondent-employer. Appellant took the position that he was neither a workman nor an employer under the act; that he was a self-employed individual, not affected one way or the other by the act. He further stated that either a work *763 man or an employer under the act would have no right to a common-law cause of action for negligent injury. Appellant asserted this would be true as to an employer, whether or not he had elected to take the benefits of the act (in case of personal injury to himself), by giving notice in writing to the department of labor and industries and paying insurance premiums on himself. In other words, appellant assumed or admitted that an employer, merely by having the right to qualify for industrial insurance benefits, was barred from private litigation for personal injury, although he had not qualified, and for that reason actually was not entitled to claim benefits under the industrial insurance act.
Department Two did not agree with appellant’s characterization of his status as that of a self-employed individual. The Department held in the Latimer case, supra, that appellant was an employer, although he was one of three members of a partnership which had no employees in the usual sense of the latter term. At this point, it can be said that the Department to some extent was sidetracked or misguided by appellant’s statement that an employer, entitled to qualify for benefits under the act, was barred by the act from any personal injury litigation whether or not he had qualified for benefits under the act; i.e., the potential availability of benefits, or the mere possession of the right to qualify for them, barred any remedy by resort to the courts. Having decided factually that appellant was an employer, which was contrary to appellant’s position on the facts, Department Two thereupon accepted appellant’s proferred legal theory that the act was a bar to any injured employer’s common-law cause of action. Department Two affirmed the judgment notwithstanding the verdict, entered by the trial court.
In his brief and argument at the rehearing En Banc, appellant frankly stated that his view of the matter was partially erroneous, and that the court was misled thereby. It was and now is still his contention that the statute is not a bar. Assuming that a self-employed individual is an employer, as Department Two held in the Latimer case, appellant now urges that an employer may elect whether or not *764 to qualify for benefits under the act. If he elects and qualifies, his right to any common-law cause of action is barred; otherwise, not. He requests that we reconsider arid overrule the Departmental opinion in the first Latimer case, supra.
The two significant questions herein involved in rehearing this appeal may be stated as follows: (a) whether the Department erred in holding that an employer (self-employed individual), engaged in extrahazardous work as a business, is barred from private litigation for personal injury, irrespective of whether notice in writing had been given and insurance premiums paid to the department of labor and industries; (b) whether, in connection with the rehearing En Banc, appellant is seeking to present a theory respecting his case not advanced at the initial hearing before Department Two.
In Johnson v. Department of Labor & Industries, 33 Wn. (2d) 399, 205 P. (2d) 896 , we held that a working member of a partnership was an individual employer under the industrial insurance act, and that notice in writing to the department was necessary before he should be entitled to benefits under the act. Thus, the opinion of Department Two in the Latimer case was on sound ground in so far as it classified appellant (a self-employed individual or working member of a partnership) as an employer. However, in taking the further step, that an employer engaged in extra-hazardous work was barred from private litigation by the act, whether or not he had qualified for personal benefits thereunder, Department Two misconstrued the Koreski v. Seattle Hardware Co. (17 Wn. (2d) 421, 135 P. (2d) 860 ) case. Therein, Mr. Koreski, president of the Ace Electric Motor Service Co., was injured while working with a mechanic (employed by the Ace Electric Motor Service Co.) engaged in repairing an electric motor on the premises of the Seattle Hardware Company. We held that Koreski was a workman. We did not hold that Koreski was a corporate officer or an employer. In referring to Koreski’s status, at p. 427, we said:
*765 “If respondent was a ‘workman’ at the time he was injured, he comes within the provisions of the workmen’s compensation act.”
The court definitely classified Koreski as a workman at p. 435 of the Koreski case, where it was said:
“We do not find any language within the workmen’s compensation act from which it may be reasonably inferred that an officer of a corporate employer may not also have the position or status of a ‘workman.’ His status is determined, as aptly observed by counsel for appellant, by what he does and not by the office he holds; otherwise, a corporate employer could give an official title to each of its employees, fail to report its payroll or neglect to pay into the workmen’s compensation fund, and thereby deprive a third person, employer or workman, of immunity guaranteed to such person by the statute. Appellant has complied with the act, therefore it may not be penalized by noncompliance with the act by respondent’s corporate employer.”
It is apparent that the Koreski case merely stands for the proposition that an injured individual whose status is that of a “workman,” i.e., statutory workman, is barred from private litigation for personal injury, whether or not he is actually qualified to claim benefits under the industrial insurance act. The case does not stand for the proposition that an employer is so barred, whether or not he has qualified for benefits under the- act.
A brief review of the industrial insurance act shows clearly that the emphasis there relates to the welfare of “workmen” engaged in extrahazardous work. Their common-law rights to litigate privately, regarding personal injuries, are taken away by statute in return for industrial insurance benefits. The provision regarding the availability of benefits of the act to injured employers is merely incidental. It reads as follows:
“ . . . Any individual employer or any member or officer of any corporate employer who shall be carried upon the payroll at a salary or wage not less than the average salary or wage named in such payroll and who shall be injured, shall be entitled to the benefit of this act as and under the same circumstances, and subject to the same obligations, as a *766 workman: Provided, That no such employer . . . shall be entitled to benefits under this act unless the director of labor and industries prior to the date of the injury has received notice in writing of the fact that such employer is being carried upon the payroll . . . ” Rem. Rev. Stat. (Sup.), § 7675.
The principal difficulty in the Koreski case was due to the fact that Koreski was injured, not through the negligence of his employer or a fellow employee thereof, but through the negligence of the Seattle Hardware Company or an employee thereof at the plant of the latter company. Normally, if a workman engaged in extrahazardous work is injured through negligence attributable to his employer, and if the latter has failed to comply with the act to secure benefits for his injured workman, the workman may elect whether he shall sue his employer or claim benefits under the act. In event of the latter, the workman’s cause of action is assigned to the state, which may sue the noncomplying employer. Koreski’s employer had failed to comply with the provisions of the act. However, Koreski could not sue his employer because the injury was not caused by the common-law negligence of such employer. Koreski’s only recourse was the suit which he attempted against the Seattle Hardware Company for common-law negligence. The Seattle Hardware Company was engaged in extrahazardous work under the act and had taken action to qualify its employees for benefits thereunder. As an employer covered by the act, the Seattle Hardware Company was entitled to immunity from private litigation respecting the personal injury sustained by Mr. Koreski. The so-called employer immunity provision of the act reads:
“Workman means every person in this state, who is engaged in the employment of any employer coming under this act whether by way of manual labor or otherwise, in the course of his employment: Provided, however, That if the injury to a workman is due to the negligence or wrong of another not in the same employ, the injured workman . . . shall elect whether to take under this act or seek a remedy against such other . . . Provided, however, That no action may be brought against any employer or any *767 workman under this act as a third person if at the time of the accident such employer or such workman was in the course of any extra-hazardous employment under this act . . . ” Rem. Rev. Stat. (Sup.), § 7675. (Italics ours.)
It is my view that the act provides an option as to benefits thereunder for employers. If an employer qualifies under the act, his remedy is limited to the benefits under the act; if he does not elect to qualify, an employer is entitled to no benefits under the act but retains his common-law right of action for personal injury.
Now as to the question of whether appellant has waived his rights to an En Banc hearing: It appears to me that appellant raised the question that the industrial insurance act is not a bar to his common-law cause of action, both in the first hearing before Department Two and subsequently at the rehearing En Banc. In briefs, as well as argument at both hearings, appellant did not waive this basic contention. He did erroneously construe the act, stating that a workman or an employer were in the same position legally as to benefits under the act and the loss of any common-law action for personal injuries. Appellant contended that, factually, he was neither a workman nor an employer, but fell in a third category—that of a “self-employed individual,” allegedly not mentioned or covered by the act. Department Two accepted the theory or legal principle advanced by appellant—that both a workman or an employer, whether the latter had qualified for benefits under the act or not, were barred from exercising any common-law rights to a cause of action. Department Two did not accept appellant’s interpretation or application of the facts. He claimed he was a self-employed individual. Department Two said, “No”; that he was an employer. Under the circumstances, I do not think we can say appellant is entirely responsible for misleading the court. We had a hand in the error that was made, and must assume some responsibility for it. Appellant should not be denied the procedural benefits of a rehearing on the ground that he led the court into error and is now seeking to correct or change his theory of the case. The petition for rehearing has been granted. The En Banc *768 hearing has been held. It seems to me that one of the purposes of a rehearing En Banc is to permit litigants and this court to have an opportunity to review a case where there may be serious doubt as to the decision rendered in the first instance by a Department of the court.
On the question of negligence, I agree with the majority that there was sufficient evidence to go to the jury. Furthermore, pursuant to the foregoing discussion, I agree also with the majority that the opinion in Latimer, supra, reached the wrong result in holding the industrial insurance act was a bar to appellant’s common-law cause of action against the respondent.
The trial court should be reversed as to the entry of judgment notwithstanding the verdict, and directed to enter judgment on the verdict of the jury.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9543796. Public record. Not legal advice.