1 Reported in 167 P.2d 157. Plaintiff brought this action as administratrix of the estate of her deceased husband, Joseph D'Amico, for her own benefit and that of the two minor children of herself and Joseph D'Amico. The complaint alleged that the death of D'Amico was caused by the negligence of defendants. The charges of negligence are as follows: (1) that the operator of a truck owned by defendant and, at the time of the accident, being operated by an agent and *Page 676 servant of defendants, on defendants' business, was so operated at an excessive rate of speed; (2) that the operator of the truck was incompetent and unfit to operate the truck; (3) that the truck, and especially the wheels thereon and the axles connected therewith, was in a defective condition, which defective condition, in connection with the manner of operation, resulted in a wheel becoming disengaged from the truck, rolling into and striking Joseph D'Amico as he was standing near the northwest corner of Airport way and Walker street, in Seattle.
The answer contained a general denial of the charges of negligence and then admitted that the death of D'Amico was caused by a wheel from defendants' truck. As an affirmative defense, defendants alleged that, at the time and place of the accident, D'Amico was engaged in extrahazardous employment and was in the course of his employment; that defendants were likewise engaged in the course of extrahazardous employment, all within the meaning of the workmen's compensation act of the state of Washington. That, by the provisions of the act, plaintiff's exclusive remedy was against the insurance fund established by law. The reply put in issue the charges made in the affirmative answer.
The case tried to the court, sitting with a jury, resulted in a verdict in favor of plaintiff. After denying a motion for a judgment n.o.v. or, in the alternative, for a new trial, the court entered judgment upon the verdict. Defendants have appealed. Their assignments of error are: denial of appellants' motion for a directed verdict; the denial of appellants' motion for a judgment n.o.v. or, in the alternative, for a new trial; the entry of judgment on the verdict; the giving of instructions Nos. 7, 11, and 13; and the refusal to give defendants' proposed instruction No. 2.
The material facts relative to the questions present in this case are: Appellants, at the time of the accident, were engaged in extrahazardous work, and the truck owned and operated by them was used in that work. Appellants paid into the accident and medical aid funds the amounts required by the workmen's compensation act for the months *Page 677 of April and May, 1944. The Malaspino Company, D'Amico's employer at the time of the accident, was also engaged in extrahazardous work and had paid into the accident and medical aid funds the amount required up to the date of the accident. D'Amico was, as such employee, engaged in extrahazardous work.
The accident happened May 11, 1944, at approximately 12:25 p.m., while D'Amico was standing in the sidewalk area near the northwest corner of Airport way and Walker street in the city of Seattle. Airport way runs north and south, having a width from curb to curb of fifty-eight feet. Walker street extends to the west of Airport way, and is forty-two feet wide. For some time prior to the day of the accident, D'Amico's employer had been engaged in laying a water main along the parking strip on the west side of Airport way north of Walker street, in which work D'Amico and other workmen were engaged. When the workmen came to Walker street, it became necessary to break the pavement before a ditch could be dug to lay the main.
On the day of the accident, D'Amico was engaged in breaking this pavement, and, at the time the noon rest period arrived, the crew was working in the center of Walker street. The power to operate the drill used by D'Amico came from a compressor which was located immediately to the north of Walker street near the west curb on Airport way. The compressor continued to operate during the noon hour and made considerable noise. When work ceased at noon on the day in question, D'Amico and some of his fellow employees went to the parking strip immediately north of Walker street to eat their lunches. At that time, they were approximately forty or fifty feet away from the place where they had been working. The men customarily brought their lunches, which were eaten near the place where they worked, as it was not practicable for them to go home during the thirty minutes allowed for the noon rest period.
The evidence shows that D'Amico consumed about twenty or twenty-five minutes in eating his lunch, after which he walked to the west curb line on Airport way near *Page 678 where the compressor was located, and it was while he was at that place, either standing on or just off the curb, that he was struck by a wheel which became disengaged from appellants' truck, and received the injury which resulted in his death. The place where he had been standing was about ten or fifteen feet from where he had been working.
It is conceded that D'Amico worked by the hour and that his employer had no control over him during the noon rest period. It is also admitted that he worked on eight hour shifts, from eight to twelve, and from twelve-thirty to four-thirty, and that he was not paid for the thirty minutes allowed for lunch. In addition, it is conceded that no money was paid to the Washington compensation fund for the noon hour period.
The first question for consideration is whether D'Amico, at the time he was injured, was working in the course of his employment so as to bring him within the provisions of the workmen's compensation act. If D'Amico was a workman, as that term is defined by our statute, at the time he was injured, his administratrix cannot maintain this action. The applicable statute, Rem. Rev. Stat. (Sup.), § 7675, provides:
"Except when otherwise expressly stated, employer means any person, body of persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all while engaged in this state in any extra-hazardous work, by way of trade or business, or who contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen, in extra-hazardous work.
"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 no action may be brought against any employer or any 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. Supp. 1941, § 7679 [P.P.C. § 705-1]:
"Each workman who shall be injured in the course of his *Page 679 employment, or his family or dependents in case of death of the workman, shall receive out of the accident fund compensation in accordance with the following schedule, and, except as in this Act otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever."
It is appellants' contention that, at the time he was injured, D'Amico had not entered upon a wholly separate and distinct undertaking for his own account, but was standing at his place of work waiting for the whistle to blow, and was in the course of his employment during the noon rest period, within the meaning of the workmen's compensation act.
On the other hand, respondent takes the position that D'Amico was not injured while in the course of his employment, in that he was not at his place of work. He was not injured while he was working, but was injured while on his own time, when he was free to go where he pleased, and at a time when his employer had no control over him. Further, that he was not being paid for the half-hour period which included the time of his injury, that no assessment was being paid by his employer to the industrial fund for this half-hour, and that he was not engaged in any act pertaining to his work, but was simply satisfying his own curiosity by observing and watching the working of a piece of machinery (the compressor), with which he had no connection either during the working time or during the rest period.
[1] Under our workmen's compensation act, definite conditions must exist at the time of an injury in order to entitle one to the benefits of the act. First, the relationship of employer and employee must exist between the injured person and his employer (except in some cases where the injured person is an independent contractor); second, the injured person must be in the course of his employment; third, that the employee must be in the actual performance of the duties required by the contract of employment; and, fourth, the work being done must be such as to require payment of industrial insurance premiums or assessments. *Page 680 [2] Referring to the first condition, it should be said that the common-law rules, except as modified by statute, apply in determining whether the relationship of employer and employee exist. Hubbard v. Department of Labor Industries, 198 Wash. 354,88 P.2d 423; Clausen v. Department of Labor Industries, 15 Wash. 2d 62, 129 P.2d 777.
[3] This court has repeatedly held that the test of the relationship of employer and employee is the right of control on the part of the employer over the employee. Engler v. Seattle,40 Wash. 72, 82 P. 136; Cary v. Sparkman McLean Co.,62 Wash. 363, 113 P. 1093; Glover v. Richardson Elmer Co.,64 Wash. 403, 116 P. 861; North Bend Lbr. Co. v. Chicago M. P.S.R. Co., 76 Wash. 232, 135 P. 1017; Machenheimer v.Department of Labor Industries, 124 Wash. 259, 214 P. 17;Burchett v. Department of Labor Industries, 146 Wash. 85,261 P. 802, 263 P. 746; Hinds v. Department of Labor Industries, 150 Wash. 230, 272 P. 734, 62 A.L.R. 225; SeattleAerie No. 1 of the Fraternal Order of Eagles v. Commissioner ofUnemployment Compensation, 23 Wash. 2d 167, 160 P.2d 614.
This rule is easily applied to any case of this nature. There is a definite line which can be drawn between working for an employer and the use of time by an employee for his own purposes.
[4] Counsel for the respective parties in this case have called to our attention many cases wherein the general question of whether at the time a claimant was injured he was in the course of his employment was discussed. However, we have one case where the injury to a claimant occurred during the noon hour rest period. That case is Young v. Department of Labor Industries,200 Wash. 138, 93 P.2d 337, 123 A.L.R. 1171, and is determinative of the question presented here. In that case, the appellant, Young, was employed as a common laborer on the Grand Coulee dam project. During the first four months of his employment, he assisted in the hauling of materials to various parts of the construction, and, during the last four weeks of his work, he was a member of a clean-up crew whose duties were to collect and remove all leftover material, debris, *Page 681 and rubbish from various parts of the dam, as directed by the foreman. Young's hours of labor were from eight a.m. to twelve noon, and from one p.m. to four p.m. He was paid at the rate of sixty cents per hour. During the noon period, for which the men received no pay, they were not under supervision unless called upon by their foreman to do some special or extra work. The workmen customarily brought their lunches, which they ate on the premises at whatever places they desired. On account of the distances to their homes, it would have been impracticable to do otherwise. On the day he was injured, the appellant, after eating his lunch, descended from the outside of the dam through an opening in its face, proceeded along a gallery, until suddenly he fell down a shaft and was severely injured. It is stated in the opinion that it was not contended appellant went into the interior of the dam for any purpose other than to inspect the premises and to familiarize himself with the character of the construction. The opinion, after quoting Rem. Rev. Stat., § 7675, states:
"The statute does not define the phrase `in the course of his employment,' and we therefore look to the cases for the meaning ascribed to it."
We then quoted from 71 C.J. 658, § 404, as follows:
"`An injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.'" (Italics ours.)
The opinion continues:
"Numerous cases adopting that definition, or others closely similar thereto, are cited in the footnotes to the text.
"The test adopted by this court for determining whether an employee is, at a given time, in the course of his employment, is whether the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer; or, as sometimes stated, whether he was engaged at the time in the furtherance of theemployer's interest. McGrail v. Department of Labor Industries, 190 Wash. 272, 67 P.2d 851, and cases therein cited." (Italics ours.) *Page 682
In deciding that the claimant was not entitled to compensation, this court stated:
"In this case, it is manifest that appellant's venture had no connection whatever with his meal. He was not seeking a place where he might eat, nor was he returning to work from a place where he had eaten. He had finished his lunch without any mishap and had entered upon a wholly separate and distinct undertaking. When he began his exploration of the interior of the dam, he was not under the supervision or control of his employer, but was on his own time. He was not then engaged in the performance of any of his obligatory duties or anything incident to them. He was not performing a task in furtherance of his employer's work or interest, but was engaged in a voluntary exploration of his own conception. We are satisfied that appellant was not in the course of his employment, within the meaning of the workmen's compensation act.
"The situation was nowise altered by the fact that the alleged purpose of appellant's venture was to acquaint himself with the intricacies of the project and, by thus increasing his value to his employer, ultimately to obtain an increase of wages for himself. The course of his employment required him only to do certain things, at certain times, at specified places, under the supervision of his foreman. It did not require him, nor was he expected, to abandon his routine of work, visit places unfamiliar to him, and expose himself to possible dangers, merely that he might thereby fit himself for a different course of employment. What information he may have expected to gain was solely for his own benefit and in no way contributed to the value of the work which he was engaged to perform. He was not fulfilling any duty required of him by his contract, nor was he furthering the interest of his employer. He was engaged in an independent act having no connection with his work."
It is impossible to visualize cases more alike, in so far as the facts are concerned, than this and the above-cited case. The only difference is that Young was farther away from his place of work when he fell into the shaft than D'Amico was at the time he was injured, and Young could give his reasons for his visit to the dam, while D'Amico's voice was stilled by death, and there were no witnesses to testify for him on this point. There can be no difference in the reasoning in the above-cited case and the one at bar. At the time *Page 683 of his injury, D'Amico had finished his lunch and was using his own time to gratify a curiosity or maybe learn something about the compressor. As he walked to and stood on the street corner near the compressor, he was not engaged in any duty imposed by his employer, nor was he subject to any supervision by his employer. He was not engaged in any task which had for its purpose the advancement of his employer's work. He was not being paid by his employer, nor was the company further being enriched by his connection with an extrahazardous occupation. In simple words, D'Amico at the time of his injury, and in fact during the whole noon hour, was not in the employ of the Malaspino Company.
Other decisions of this court supporting this conclusion are:Hoffman v. Hansen, 118 Wash. 73, 203 P. 53; Hama HamaLogging Co. v. Department of Labor Industries, 157 Wash. 96,288 P. 655; Haaga v. Saginaw Logging Co., 165 Wash. 367,5 P.2d 505; Hill v. Department of Labor Industries, 173 Wash. 575,24 P.2d 95; Blankenship v. Department of Labor Industries, 180 Wash. 108, 39 P.2d 981; McGrail v.Department of Labor Industries, 190 Wash. 272, 67 P.2d 851;Wood v. Chambers Packing Co., 190 Wash. 411, 68 P.2d 221;Maeda v. Department of Labor Industries, 192 Wash. 87,72 P.2d 1034; and Waddams v. Wright, 21 Wash. 2d 603,152 P.2d 611.
Our attention has been called to the fact that, in some of our cases, we have made statements which would indicate our adherence to a rule that an employee was in the course of his employment when he was eating lunch. Those statements, however, were made in the course of our reasoning and did not, and could not, announce our adherence to such a rule because the question was not present in any of those cases.
[5] Appellants ask for a liberal construction of the workmen's compensation act in order to allow respondent its benefits. We cannot agree with this suggestion. Workmen's compensation acts are liberally construed to those who come within its provisions. However, individuals who make applications for benefits are held to strict proof of *Page 684 their right to receive those benefits. Kirk v. Department ofLabor Industries, 192 Wash. 671, 74 P.2d 227; Clausen v.Department of Labor Industries, 15 Wash. 2d 62,129 P.2d 777; DeHaas v. Cascade Frozen Foods, Inc., 23 Wash. 2d 754,162 P.2d 284.
[6] It is our conclusion that, at the time D'Amico was injured, he was not engaged in extrahazardous work, and that therefore his widow, acting as administratrix of his estate, was entitled to maintain this action. A reading of the statement of facts convinces us that there was sufficient evidence on the part of appellants' representative to take the case to the jury, and that the verdict should not be disturbed.
Instructions Nos. 7 and 11 read as follows:
"No. 7. You are instructed that when a thing which causes an injury to another is shown to be under the management and control of a person charged with negligence in the operation of such thing or the failure to keep it in a reasonably safe condition, and if it is shown that an accident happened which in the ordinary course of things does not happen, if those in charge of its management and control exercise reasonable care, then the happening of said accidents afford reasonable evidence, in the absence of explanation by the person charged with negligence, that the accident arose from the want of reasonable care on the part of such person."
"No. 11. If you find from the evidence that the fact that the wheels of defendants' truck came off was such a thing that would not, in the ordinary course of events, happen if those who had the control, supervision and operation thereof had used proper and reasonable care, then I instruct you that you may infer from the fact that such wheels did so come off that such coming off was due to the negligence of the driver of the truck or of the defendants, and a prima facie case is thereby established in favor of the plaintiff.
"The burden then devolves upon the defendants to furnish an explanation or rebuttal of such prima facie case by producing evidence of due care and precaution under the circumstances and conditions necessarily within defendants' exclusive control. If, then, after considering such explanations of the whole case, and of all the issues as to negligence, injury and damages, the evidence still preponderates *Page 685 in favor of the plaintiff, then plaintiff is entitled to recover; otherwise not."
[7, 8] It is argued by appellants that the question or doctrine of res ipsa loquitur was improperly given. It is their contention that this doctrine is merely a legal presentation to be used when there has been no evidence introduced explaining the cause of a happening; further, that it is a substitute for evidence, and not the evidence itself. That the instructions were properly given is demonstrated by the following quotations:
"The rule, under such circumstances, is:
"`When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.' 1 Shearman Redfield on Negligence (6th ed.), § 59; Wodnik v. Luna Park Amusement Co., 69 Wash. 638,125 P. 941, 42 L.R.A. (N.S.) 1070.
"Proof of regular inspection of the machine still leaves the question of negligence one for the jury. Lane v. Spokane Falls Northern Railway Co., 21 Wash. 119, 57 P. 367, 75 Am. St. 821, 46 L.R.A. 153. The presumption is overcome as a matter of law only when the explanation shows, without dispute, the happening was due to a cause not chargeable to defendant's negligence.Scarpelli v. Washington Water Power Co., 63 Wash. 18,114 P. 870.
"Nor does the allegation and proof of specific negligence deprive a plaintiff of the benefit of the rule. Walters v.Seattle, Renton Southern R. Co., 48 Wash. 233, 93 P. 419, 24 L.R.A. (N.S.) 788; Kluska v. Yeomans, 54 Wash. 465,103 P. 819, 132 Am. St. 1121. There is nothing said in the case ofAnderson v. Northern Pacific R. Co., 88 Wash. 139,152 P. 1001, L.R.A. 1917F, 1020, which conflicts with the foregoing statement of the rule. It is true, language was used in Osbornev. Charbneau, 148 Wash. 359, 268 P. 884, 64 A.L.R. 251, which might be construed in conflict with the above statement, but it was unnecessary to the decision and is clearly obiter." Highlandv. Wilsonian Inv. Co., 171 Wash. 34, 17 P.2d 631.
"This court has adopted the rule that, even though a plaintiff should base his action upon the doctrine of res ipsa *Page 686 loquitur, he may plead and prove specific acts of negligence on the part of the defendant and rely upon the presumption of negligence and, also, upon his proof of specific acts of negligence in support of his right to recover. Walters v.Seattle, Renton Southern R. Co., 48 Wash. 233, 93 P. 419, 24 L.R.A. (N.S.) 788; Kluska v. Yeomans, 54 Wash. 465,103 P. 819, 132 Am. St. 1121; Highland v. Wilsonian Inv. Co.,171 Wash. 34, 17 P.2d 631." Case v. Peterson, 17 Wash. 2d 523,136 P.2d 192.
[9] In instruction No. 13, the court explained to the jury the facts relative to the existence of the workmen's compensation act, and its provisions for compensating injured workmen and their families. The court then defined the meaning of the word "workman" as implied in the act. He told the jury that D'Amico's employer and appellants were engaged in extrahazardous occupations, and ended the instruction in the following language:
"`An injury to an employee arises "in the course of his employment" when it occurs within the period of his employment at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.'
"The test for determining whether an employee is, at a given time, `in the course of his employment,' is whether the employee was, at the time engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer; or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer's interest.
"If, therefore, you find from a fair preponderance of the evidence that deceased Joseph D'Amico, at the time of his injury, was doing something incidental to his employment and in furtherance of the interests of his employer, then his widow and his minor children must have recourse to the provisions of the Workmen's Compensation Act which accord relief to them, and your verdict must be for the defendants in this case.
"If, however, you find from a fair preponderance of the evidence that the deceased Joseph D'Amico, at the time of his injury was not engaged in the performance of the duties required of him by his contract of employment or by specific direction of his employer, then and in that event the plaintiff's *Page 687 right of action would not be barred by the Workmen's Compensation Act."
The instruction was entirely proper in that it clearly stated the law and defined the rights of the parties under that law.
[10] Proposed instruction No. 2 related to the questions included in instruction No. 13. We have examined the proposed instruction and find that its essence was included within the instructions given by the court.
Finding no error in the record, we affirm the judgment.
DRIVER, C.J., BEALS, MILLARD, BLAKE, and MALLERY, JJ., concur.