*1 argued April 13, appeal October denied Motion to dismiss 23, 1960 affirmed November BARTLEY v. DOHERTY 2d 71 2d 521
351 P. 357P. John H. Kottkamp Fabre, Collins & Kottkamp, for the motion. Pendleton,
Charles S. and Vergeer Crookham & Port- Samuels, contra. land,
Before Justice, Chief McAllister, Rossman, Warner, Perry, Sloan, O’Connell G-oodwin, Justices. J.
SLOAN, has moved to dismiss this Plaintiff-respondent ap- Plaintiff peal. challenges sufficiency service notice of appeal plaintiff. determination of the motion requires the statutes interpretation the manner specifying which the notice shall be served. The is one of importance the pro- fession.
It is of known, the course, as legislative sembly made material in the changes statutes regulat ing Prior to appeals. the January 1, 1960, effective date of the amendment to the statute in question, statute which governed service of the notice of appeal OES 19.030. It that the notice provided should be on appeal “served suсh adverse or party parties as have in the appeared action or or suit, upon # # his or their attorney amended statute, which is now designated OES 19.023 provides:
“19.023. How taken. An appeal to (1) appeal the Supreme Court shall be taken in the manner in prescribed 19.023 to OES 19.190. A to a
“(2) party judgment desiring appeal or therefrom, some specified part thereof, shall cause a nоtice, signed by himself or his attorney, to be served on such adverse or party as parties have in appeared suit action, or proceeding and file the with original, proof service indorsed thereon or affixed thereto, with the clerk.” The omission from the new section of the words “or his or their upon attorney” provides basis for the motion to dismiss the in appeal this case. The notiсe was served appeal only plaintiff’s attorney. Plaintiff contends that the statute now requires the notice be served on the actual party.
Plaintiff acknowledges existence of OES 16.770 and 16.800. Section 16.770 that: provides
“16.770. Notices to be in writing; service of notices and Notices be in papers. shall writing, notices and other shall be papers served on the party attorney in the manner in prеscribed ORS 16.800, where not otherwise provided by 16.780 statute.”
Section 16.800 makes for service provision upon party from the absent state and also provides: “* * * aWhen whether absent or not party, from has an in state, attorney the action or suit, of notice or other service shall be papers made upon if attorney the address of his office is known. Plaintiff argues, however, neither ORS 16.770 or 16.800 apply by reason of the limitations contained 19.104. ORS That section reads:
“19.104. Service of papers. Except otherwise provided ORS to 19.190, 19.023 where ORS 19.023 and 19.190 require any to be paper served and filed, shall paper be served in the manner provided in ORS 16.780 to 16.800 on all other who parties *3 have in appeared suit or action, proceeding who are not represented by same counsel as thе party paper, shall be filed, with serving_ of service proof indorsed thereon, with the trial court clerk. c. [1959 § 27]” It is plaintiff’s theory that the language as “Except otherwise provided in ORS 19.023 to 19.190, where ORS 19.023 to 19.190 require any paper to be served and shall filed, paper be served in the manner provided in 16.780 to on ORS 16.800 all other parties who have * * in the appeared action, ORS 19.104 requires or notice аny to be served in paper the manner specified 19.023 to 19.190 and ORS not otherwise. In other we words, plaintiff says may not look to ORS 16.770 or 16.800 as manner or establishing method of service but are notices to be required permit served as only by the provided appeal sections, ORS 19.023 to 19.190. Plaintiff reads the word to the “Except” applying manner of service rather than who must he served.
Plaintiff misconstrues the intent оf 19.104 ORS above That section with concerned quoted. manner of but as to who must be Notice service, served. ORS 19.023 notice be requires appeal on the adverse or and not only party served parties may who have The every party appeared case. same is true of the on 19.038. undertaking appeal. ORS is served on the adverse undertaking, also, only The other be re- may party parties. papers are 19.104 to required by ORS appeal quired all other adverse or ex- parties, otherwise, served on the same counsel. those cept represented It is our conclusion ORS 16.770 16.800 to be served the at- upon notice of appeal permit denied. of a Motion torney party.
ON THE MERITS *4 Duane Vergeer, Portland, argued the cause for On the appellant. briefs were & Yergeer Samuels and Charles S. Crookham, Portland.
John E. KoUkamp, Pendleton, argued the cause for respondent. On brief were Pabre, Collins Kott- & Pendleton. kamp, *5 Chief Justice,
Before Eossman, and McAllister, and King, Justices. Perry, O’Connell, Goodwin Sloan, (Pro Tempore) J. KING, personal injuries by is an action for suffered This working plaintiff for the defendant and while Liability Oregon. brought of under the Act year plaintiff working During the started 1957, ranch Pilot the defendant’s near Umatilla Rock, on Oregon. county, genеral employed perform ranch and
He was including heavy power-driven the use of farm duties, monthly salary machinery, of of which $245, and at a and room. deducted for board $45 plaintiff for the almost had defendant The worked by years. April he was instructed 20, 1959, two On type of the defendant’s D-6 Cater- to use defendant heavy pillar 10-foot disc to break tractor and draw consisting approximately up plowed 80 acres field ranch. from the some five miles home and located many tractor times had used- the D-6 operation quite and familiar with its and was before general was familiar The defendant also condition. particularly with the condition, tractor’s with the steering clutches. brakes type a main hand lever that tractor has This power general the tractor. It also has controls opеrates one that on hand levers, additional two power partially on the crawler- controls the at least By pulling type side of the machine. track on each the left for in- side, that controls the lever back on power on that side and causes down it cuts stance, By swing stepping on the to the left. tractor swung the tractor could be time, the same brake at sharply quickly. steered tо the left more and more ,process apply right The same would to the side operating right power lever and brake. The could entirely disengaged by using cut off or the main lever. April that date of
On 20, for some time prior the seals on the thereto, transmission damaged drip tractor were and allowed oil to onto the particularly on brakes, the left side. When considerable *6 got they braking oil on the brake bands, lost their power, necessary and it was that it be washed off with gasoline properly before the brakes would function again. plug a There was in the bottom of each of the through gasoline brake wells which the could let out after it was used to cut the oil off the brakes. If plugs open, those were left the oil could not accumulate enough seriously, affect brakes but with the plugs dirt and dust were out, allowed in, which would damage cause serious to the brake bands. p.m. April plaintiff
About 5 was 20, 1959, driving per around the field at about 5 miles hour, dragging partially the disc behind the tractor. He was operation turned to watch the of the as was disc, customary. glanced just He claims that he forward the left track of the tractor was about to strike a rock height. stepped a foot or more in He on his brake and pulled attempt pass in left lever an to center and over the but he rock; discovered that he had no brake, respond. and the tractor failed to The left tread struck plaintiff the rock with considerable and the force, was injured. thrown in around the seat and his back place shortly He returned to the home thereafter, reported injured to the defendant that he was and was n go advised to and did to a doctor Pendleton the day. next jury case tried in.the circuit court
The before county. The defendant moved for di- Umatilla which was denied. The returned rected verdict, general damages a verdict for the for $25,000 damages. special The and defendant then $4,624.94 judgment notwithstanding for moved verdict a new of which were this denied; for both trial, hence, apрeal. principal question to be determined is whether provisions
the case comes under the Liability Oregon. Act of assignment
The first of error is: failing the de- “The trial court erred allow judg- fendant’s motion for a directed verdict ment properly ground on the that the case was n.o.v., Employer’s Lia- maintainable under bility Law.” theory plaintiff’s work that the
It is the defendant’s danger and that the trial court involve risk and did not have so determined as a matter law should motion for directed verdict. the case on the dismissed deciding with the *7 are faced first We determining question proper this of risk and method of applied general farming danger. the it be Should applied occupation plaintiff, it or should be actually work and labor on the basis of the and decided by being performed the at the time of the accident? Oregon
Many passed cases have of the recent upon question, and and we hold that it should be this question*of risk that the whether in this state the rule by specific danger determined the are involved is and by employee being thing at the time of done or work general general injury of or name rather than
23 type employee originally of work the hired to do. Barker v. Portland Traction 180 Co., Or 173 P2d 586, 706; 178 P2d v. 288, Prod., Williams Clemens’ Forest 188 Or 216 P2d 217 P2d Inc., 572, 241, 252; Wells v. Nibler, 221 593, 189 Or P2d McLean v. 583; Golden Hop Snyder Ranch, 244 Inc., Gate 195 Or P2d 26, 611; Logging v. Prairie Co., Inc., P2d 207 Or 180. 572, engaged Some of the above cases hold that the work danger, in did not risk involve that some hold they authority principle it bnt are all did; for the specific engaged injured it is the work in when determining danger, controls in of risk and general rather than the name or character of the original employment. еmployee working
It would seem anomalous that an driving drawing on a farm and a D-6 tractor a farm log or disc even for domestic wood who was use, injured by reason of some defect would tractor, governed by employee a different rule than the same employed by logging would be if he were a commercial operator injured driving and was while the same trac- exactly drawing with tor, the samе while defect, purpose improving logging same disc for the road, drawing log purposes, the same for commercial say rather than for use as wood. domestic We cannot simply because the work was incidental to farm- ing, danger. it did not involve risk and
The defendant also that the contends facts show being performed that the actual work in this case did danger not involve inherent risk and and should be so declared the court as a matter of law coming case dismissed as not under Liability Act. The defendant cites v. Broad- Hoffman way Hazelwood, Or 10 P2d 11 P2d 349, 814. plaintiff-employee slipped That awas case where the *8 24 bakery department.
on the floor of
The restaurant
by
shop”
“a
was held not work
this
and under
court,
question
there
no
be
facts
was
submitted to the
as;
jury,
danger.
did not
risk
the work
involve
In
say:
that same case thе court did
*“*
*
upon
If it were a matter
which reasona
might
question
ble
it would be a
minds
differ,
(p 524)
fact for the
to determine.”
Defendant next cites Ferretti v. Southern Pa-
154
Williams Clemens’ Forest
supra;
Barker v. Portland Traction
v.
Co.,
Wells
supra,
general
all hold to the same
rule that
Nibler,
ordinarily
question
of whether there
risk and
danger
jury question, except
is a
where the court can
say from the
a matter of
facts, that risk and
law,
danger
question
are not involved. Then it is a
of law
question
danger
for the court. The
of risk and
is deter
only
court
mined
those cases where the facts
way
all
are
one
reasonable minds could not dis
agree. Ordinarily
jury.
it is a
of fact for the
p
Application
L Vol No
J,
1,
1, 95,
Willamette
generally”
Involving
“and
Clause: “Work
a Risk or
Danger”; Poullos v.
84
164 P
Grove,
106,
Or
Mc
562;
Cauley
Steamship “Willamette,”
v.
109 Or
131,
Foundry
P
Hale v. Electric
892;
Co.,
Steel
The trial court submitted the case to theory Oregon jury Employers’ on the of the Lia- bility properly Act left of to danger. risk and whether the work involved assigns The defendant error No. as 2: denying “The Trial Court erred in the motion judgment a for directed verdict and on the n.o.v. ground that the was barred in Ms action by the Foreman Defense Bule, OBS 654.315.” provides OBS 654.315 as follows: “The оwners, contractors, subcontractors, fore- persons having charge areMtects or other men, the of particular reqMrements work, shall see that the complied of OBS 654.305to are 654.335 with.” vice-principal This Foreman’s Defense Bule and passed upon, thorougMy fully rule has been ex by many plained and discussed court tMs times; there complete unnecessary. a rediscussion fore, here is Sеe Opr. v. Schmidt Multnomah 155 Co., Or 61 P2d 53, 95; v. Foster Howard & Kleiser 217 Co., Or 516, 332 P2d Weyerhaeuser P2d 780; 342 Caler v. 621, Timber Co. et 344 P2d al., 152, Or 544. supra,
In Howard v. Foster v. Kleiser Co., Mr. Justice who was the author of all of three Bossman, says: the above-mentioned cases, “* * * possible assign It not to indiscrimi-
nately imposed by Employers’ Liability duties thereby gain Law to mere laborers and relief for employers responsibility. from the other hand, On persons may requisite authority be invested with thereupon may charged duty be with the inspection performing or of other functions de- by possible it Thus, manded the act. is not for an employer statutory duty to relieve of the himself by merely designating perform a workman to it, duty if the workman assume the does, even fact, * * * performs
and at times it. Liability clearly “The Law contem- authority delegation plates, as we have seen, provision persons, for that certain it makes foremen, including ‘person having charge particular compliance responsible for with the work,’ shall be employer discretion an have some act. Since must up he and vice- how will set his foremen imposed upon particular principals, the duties exclusively may may statutory employee but by responsibilities assigned to him be affected Accordingly, employer. in an instance such as supra [127 271 P Aitken, 730], Or Moen v. employee in ‘the scale lowest which *10 employment,’ it not have been consistent with would Liability purposes to Law the charged supervisory that he was inspection. with have held lowly employee powers rank An of that of sought type act of workman whom the the was protect.” to pleaded in his
In at bar the defendant the case separate and as answer defense follows: further, complained of the accident of, “That at the time plaintiff charge prior was in of and thereto, and maintaining employed purposes the trac- for the of working operating in a condi- he was reasonable tor perform duty, plaintiff failed to said That tion. proximate plaintiff’s failure therein was a and that injury.” plaintiff’s of cause pleading properly Assuming the above the Defense burden of Rule, Foreman’s the raises prove proof, the defendant to is with nevertheless, proof plain- the showed that defense. affirmative receiving wage regular of a the farm hand. tiff was any supervisory proof of duties a fore- is no There any given not others. He Was direc- man in control any authority repair to the tractor in or manner. tions
37 Fields, See Fields v. P2d 326 528, 539, Or the P2d true lie was told how to wash brakes 451. It is with but was not to the authorized leave gasoline, plugs out to the of oil. It must re- accumulation prevent or a membered that the plaintiff, person, reasonable would not be to wash brakes until such ac- expected tion words necessary, they was other until lost not their were and the evidence losing power; gripping no way demonstrates the condition ex- determining cept by efficiency. brakes their applying testing are We satisfied that submitted is evidence not to sufficient that the foreman prove or a and that deter- vice-principal jury properly mined that matter their It is a verdict. close question whether there was evidence sufficient on that matter even to submit to the certainly jury, enough to overrule their verdict.
The one is raised remaining question by assignment of error No. as3 follows:
“The erred in to failing Court remove from the consideration allegation that plain- tiff had been forced accept money from the Ore- gon State Welfare Commission in order sustain himself.”
Such an allegation was placed complaint theory welfare accepting money being *11 return it to was a required proper part special damages. matter have
This should not been in the pleaded it was in the complaint. However, pleaded original The defendant to interposed motion strike complaint. and make more definite and certain that against origi- nal but did not include the complaint, above matter motion therein. The to strike was allowed and an amended the complaint filed, same welfare containing motion was filed the defendant
matter. No further regard. in that testimony,
During plaintiff’s direct after three questions regarding pay- had been answered welfare objected the ment, defendant follows: think this entire matter im- Honor, “Your I is proper; anything he from the receives State "Wel- nothing fare matter is the to do with this case. whole has improper, and I move it be stricken, disregard Jury to it. instructed I is whether “THE think thе COURT: accident; of this lost his income as result he Jury objection is and the sustained, will be the disregard to it.” instructed testimony until all the matter rested There made and denied for directed verdict and motion taken by the court. moving in addition to to withdraw time,
At that jury, consideration matters from several follows: defendant moved as pleading, reference tbe there has been “Also, allega- at I this time ask to withdraw but will stаrting Paragraph at line which VIII, tion reads as follows: That has been forced Oregon money accept from the State Wel- certain which himself, in order to sustain fare Commission obligated money plaintiff said to return to Com- recovery any herein;’ for the made out mission grounds allegation on the reason and pleadings no and there was not be in should anyway, proof time that it and I ask at this it, pleаdings in- from withdrawn disregard it. structed ÉÉS& “THE COURT: sfc =& [*] * * * I think some of the other and should have have been waived been motions plaintiff’s motions to at the time taken *12 thing ruled. made and Court were strike provides orderly procedure, the statute an coming you parties have the so don’t for motions changes complaint making in the at the drastic purpose is the I think of trial. time law waiving providing motions at this for time. denied.” will he
“The rest again rested until the motion for matter Here the trial after verdict. new
As the welfare matter should not mentioned before, complaint; in the set forth however, been have attempt it made no to have stricken or the defendant proper regu- complaint time and in amended at the 16.410. 16.100, lar manner. See ORS disregard did order the the is- The court necessary repeat that it admonition. and was sue, objectionable If wished the material the defendant complaint, physically from the he should have removed proper strike it at the time while the issues moved to up being could made and the have filed were complaint. an amended that the defendant was accorded fair believe
We judgment notwithstanding for the motion trial properly and for a new trial was denied. the verdict Affirmed.