Gillis v. Graeber

ROSS, J. — This is an action under the Employers’ Liability Law, chapter 6, title 14, paragraphs 3153-3162, Civil Code of 1913. The questions raised involve a construction of the complaint, and we therefore quote that portion of it which sets forth the character of plaintiff’s employment and the cause of the accident in which he was injured: _ “That heretofore and on March 16, 1921, the plaintiff was employed by the defendant as a bricklayer inland about the erection and construction of a certain structure, to wit, a certain brick flue and tunnel in and about and used in connection with the ore reduction works and smelter and upon the grounds and property of the International Smelting Company at Inspiration, Gila county, Arizona. _ “That on said March 16, 1921, and while the plaintiff was engaged in said employment and was doing work in connection therewith on a certain scaffold elevated 20 feet above the ground or floor beneath in the erection and construction of said structure, the plaintiff was injured by an accident due to a condition or conditions of such employment. “That such condition or conditions of employment were as follows, to wit, that the defendant had furnished for the plaintiff’s use in laying bricks in his said employment and on said structure a scaffold, and that the same was at said time and place elevated 20 feet about the ground or floor beneath and was then and there being used in the erection and construction of said structure; that while said plaintiff was standing thereon in the course of his said employment as a bricklayer and was using and stand — 36 — ing on the same in and about his work of laying bricks and his employment as aforesaid on said structure, the base of said scaffold on which the plaintiff was standing did turn, and the said scaffold became loose, and by reason thereof the plaintiff did fall to the ground. “That by reason of said condition or conditions of said employment, and said fall from said scaffold. >) The supporting evidence was to the effect that defendant Gillis was building for the International Smelting Company, of Miami, a flue which when finished was to be used by the smelting company in connection with its smelter. On the day plaintiff was injured he was working for defendant Gillis as a bricklayer, laying bricks in the walls of flue. He was working on a swinging scaffold suspended in the air by ropes, and in some way the scaffold twisted or turned and caused him to fall to the cement floor beneath. The testimony on the question of the height of the scaffold was conflicting. It was not conclusively shown to be twenty feet or more above the ground or floor beneath; and yet the testimony on the question was in conflict. When plaintiff closed his case, defendant moved for an instructed verdict on that ground. The defendant in meeting motion stated that the height of scaffold was not the only ground of complaint; that plaintiff also relied upon subsection 8 of paragraph 3156, reading as follows: “All work in or about quarries, open pits, open cuts, mines, ore reduction works and smelters.” Thereupon the motion for an instructed verdict was denied. The defendant then introduced some evidence on the height of the scaffold and renewed his motion for an instructed verdict. This motion was also. denied. The jury returned a verdict in favor of the plaintiff upon which judgment was duly entered. The — 37 — appeal is from the order overruling the motion for new trial and from the judgment. The court in his instructions to the jury told them that if they found from the evidence that at the time alleged in the complaint plaintiff was employed by defendant in work in and about ore reduction works or smelters, or on a scaffold twenty or more feet above the ground or floor beneath in the erection and construction of a brick flue or tunnel, or either or both of such classes of work, the defendant was liable. The defendant assigns as errors the court’s refusal to grant his motion for an instructed verdict, and the giving of said instruction. Since the evidence upon the question of the height of the scaffold was in conflict, the court very properly left the decision of that question to the jury and did not err in refusing to grant the motion for an instructed verdict. The Employers’ Liability Law, in paragraph 3156, classifies hazardous occupations of employers into ten groups. By paragraph 3155: “The labor and services of workmen at manual and mechanical labor, in the employment of any person . . . [engaged] in the occupations enumerated in the nest section [3156] hereof, are . . . declared and determined to be service in a hazardous occupation within the meaning of the . . . preceding section.” We think it too clear for controversy that before the employee can recover from the employer he must have been injured while working in the employer’s occupation, as classified in paragraph 3156. In other words, if the employer’s occupation is the operation of a railroad, and the employee was hired to do railroading, he must have received his injury in that service before he can recover from his employer; or, if the employer’s occupation is the construction, alteration, or repair of pole lines for telegraph or telephone, and the employee was hired to assist in such — 38 — work, lie must show lie received liis injury in his employer’s hazardous occupation; or, if the employer’s hazardous occupation is the operation of an ore reduction works or smelters, and the workman’s employment is to help in such operation and he is injured while doing so, he may recover. But when his employer’s occupation is not the hazardous one of operating ore reduction works or smelters, and the employee was not employed in such operations at the time of his injury, plainly he cannot recover simply because he happened to be at the moment upon the grounds of a smelter belonging to a stranger, helping to build a flue to be used by smelter later on when finished. The occupation of bricklayer is not declared by the statute to be hazardous, but the occupation of laying brick, as well as all other work, on ladders or scaffolds “elevated twenty feet or more above the ground or floor beneath in the erection, construction, repair, painting or alteration of any building, bridge, structure or other work in which the same are used” is, by subsection 5, paragraph 3156, declared and determined to be hazardous; and this is the occupation the complaint charges the defendant was engaged in and in which the plaintiff, it is alleged, was injured. Neither the employer nor the employee is alleged to be engaged in the occupation of ore reduction works or smelters. On the contrary, it is alleged in effect that defendant employed plaintiff as a bricklayer to lay bricks in the walls of a certain structure, to wit, a brick flue, and that while he was laying bricks he was elevated twenty feet or more above the ground or floor beneath on a scaffold and because of the condition of the scaffold he fell and was injured. True, he alleges the structure was “in and about and used in connection with the ore reduction works and smelter and upon the grounds and property of the International Smelting Company, at Inspiration, Grila — 39 — county, Arizona. ’ ’ But the only possible office of such allegation was to give location to his work. Surely it would not be contended, if the allegation and proof had been that the flue upon which plaintiff was working was in and about a telegraph wire of the Western Union, or the railroad tracks of the Santa Fé, or the telephone line of the Mountain States Telephone Company, and to be used in connection therewith — all engaged in hazardous occupations under the statute— it would have aided in the least his cause of action, based solely upon the elevation at which he was working when injured. The plaintiff was not engaged in the hazardous occupation of ore reduction or smelting, and what is more, he neither alleges nor offers proof that there was any causal relation between his injury and the fact the flue on which he was working was on the premises of the smelting company, and when finished was to be used as a part of its plant. If the plaintiff’s cause of action is not based upon the fact that his work was upon a scaffold twenty feet high, then he states no cause of action. He does not claim in his complaint or elsewhere that the accident in which he was injured was due to a condition or conditions' of any ore reduction works or smelter of the smelting company. This is not a case in which the question is as to whether the plaintiff was engaged in the work he was employed to do at the time of injury, although away from the premises; or whether his employment was nonhazardous, although his employer’s was admittedly hazardous, as it was in In re Larsen, 218 N. Y. 252, 112 N. E. 725, or Mandle v. A. Steinhardt & Bro., 173 App. Div. 515, 160 N. Y. Supp. 2, or In re Brown, 173 App. Div. 432, 159 N. Y. Supp. 1047. Here the accident and resulting injury are alleged to be due to the condition or conditions of scaffold and its elevation of twenty feet or more above the ground — 40 — or floor beneath, and such is also the proof. The purpose for which the flue was intended had nothing to do with the accident, and that the flue happened to belong to a smelting company instead of a hospital has no legal bearing on the controversy. Both the Employers’ Liability Law and section 7 of article 18 of the state Constitution, upon which such law is founded, provide that the injury must be caused by accident due to a condition or conditions of the occupation. It is as certain as pleadings and proof can make it that the accident charged in this complaint was not due to any condition or conditions of the occupations of operating ore reduction works or smelters, and that neither the plaintiff nor defendant was employed in such occupations. Plaintiff cites as supporting’ the court’s instruction the case of United Verde Extension Mng. Co. v. Littlejohn (C. C. A.), 279 Fed. 223. That case is not applicable.' Littlejohn was an employee of the defendant mining company, and at the time of the accident was carrying a heavy weight over an open pit, when the plank spanning it gave away and he fell into the pit. In the Littlejohn case the cause of the accident was traceable directly to the condition of the employer’s plant. Indeed, in that case the cause of the accident was shown to be the condition or conditions of the plank over the pit upon which Littlejohn was working at the time. If in the present case Graeber had been working for the International Smelting Company, and had been accidentally injured by the giving away of a plank over an .open pit and thereby precipitated into the pit, or had been injured by any other accident due to a condition of the smelting company’s plant, the Littlejohn case would be in point. We are convinced that the court erred in instructing the jury the defendant was liable if the plaintiff was injured while employed in and about ore reduc — 41 — tion works or smelters, such instruction being without both the pleadings and the evidence. The judgment of the lower court is reversed and the cause remanded, with the direction that a new trial be had. McAlister, c. j., concurs.