Rorvik v. North Pac. Lumber Co.

190 P. 331 | Or. | 1920

Lead Opinion

McBRIDE, C. J.

This case presents many intricate propositions, and for that reason we have given a more than usually extended statement of the contentions of the parties as they appear from the pleadings.

1. It is first contended that plaintiff cannot recover under the employers’ liability law of this state, because neither the complaint nor the evidence show that the deceased was an employee of defendant, or that he sustained to it any such relation as brings him within the terms of such act. The complaint and the uneontradicted testimony disclose the following facts:

The evidence indicates that at the time the accident occurred the deceased was captain of the steamship “Klamath,” and an employee of the Klamath Steamship Company, a California company, and that the ship, at the time of the accident, was taking on a load of timber being shipped by defendants; the lumber was being delivered entirely by the employees of the receiver. Neither the decedent nor any employee of the steamship “Klamath” had any part therein. But the employees of the Klamath Steamship Company were obliged to be about the work carried on by the receivers in order to receive the lumber as it was delivered by the receivers. The two sets of employees in their work intermingled. The contract of sale provided that the lumber should be placed on the wharf within reach of the ship’s tackle by the seller. When the lumber was delivered and placed in reach of the ship’s tackle by the receivers, the duties of the employees of the steamship began, namely, to load the lumber on the ship.. The employees of the steamship took up the work where the receivers stopped. In fact, as the cars loaded with lumber were placed on the wharf in reach of the ship’s tackle, the servants of the steamship would, by means of the slings and tackle, remove the lumber from the cars into the hold of the ship. The employees of the receivers and the employees of the steamship, including the steamship’s employee, the decedent, thus met on common ground, and both, by the necessities of their duties, were obliged to work on the wharf, on and about the tracks, and around the machinery where the operations were being carried on.

The only evidence introduced tended to show that deceased was standing on the edge of the wharf in a place where the convenient and proper execution of his duties required him to be, and there is nothing to indicate that he was negligent in any particular, or that any other place would have been safer, consistently with the performance of those duties. In other words, as the employee of the Klamath Steamship Company he was in the place where his duties required him, engaged in the labor of receiving and stowing away or superintending the receiving and stowing away, of the lumber brought to the edge of defendants’ wharf, and in reach of the tackle of the steamship company.

In view of the able and exhaustive analysis of our Employers’ Liability Act by Mr. Justice Harris, in Turnidge v. Thompson, 89 Or. 637 (175 Pac. 281), which covers every phase of the question as to the persons who are within or without the act, we deem any attempt at further analysis or distinction unnecessary. Prom the lucid interpretation in that case and in other cases hereafter mentioned, we deduce the rule that the Employers’ Liability Act does not extend to the protection of the general public as such, but that it does extend its protection to employees of the particular person owning or operating dangerous machinery or engaged in hazardous employments, and to other persons or employees of other corporations whose lawful duties require them to be or work about such machinery, or expose themselves to the hazards of the machinery or appliances in use by the owner thereof.

Such, when considered with reference to the case then in hand, was the holding in Clayton v. Enterprise Electric Co., 82 Or. 149 (161 Pac. 411), which, with the limitation given above, is approved in Turnidge v. Thompson, 89 Or. 637 (175 Pac. 281). See, also, Morgan v. Bross, 64 Or. 63 (129 Pac. 118); Cauldwell v. Bingham & Shelly Co., 84 Or. 257 (155 Pac. 190, 163 Pac. 827).

Prom these authorities we conclude that if the other elements authorizing recovery are present, the deceased was a member of that class on behalf of which a recovery is authorized by the act.

2,3. It is urged that “plaintiff does not allege or prove that the work decedent was engaged in at the time he was injured involved a risk or danger, and therefore she cannot maintain this action.” While the complaint is not so definite in this respect as the rules of good pleading would seem to require, yet, taken as a whole, we think it is sufficient. After stating in detail the business the receivers were engaged in, including the operation of railway tracks and machines for transporting the lumber from the mill to the wharf, and stating that such transportation was by mpans of cars placed upon said tracks and drawn by horses, one paragraph of the complaint states that “such business was a work involving risk and danger to the public.”

The paragraphs quoted in the statement give in great detail the manner in which the work of loading was carried on; point out its defects and omissions, and how they might have been remedied or avoided; and the abstract shows no demurrer or objection to the pleading before trial, and the case was tried apparently upon the theory that it was sufficient. Under the circumstances we think the pleading was sufficient. This being the case, the question as to whether the work was hazardous or in fact involved risk or danger, became a question for the jury: Wolsiffer v. Bechill, 76 Or. 516 (146 Pac. 513, 149 Pac. 533); Yovovich v. Falls City Lbr. Co., 76 Or. 585 (149 Pac. 941). There was evidence from which the jury had a right to infer that the work was hazardous, especially in the manner and with the appliances with which it was prosecuted.

4, 5. The next assignment of error is based upon the failure of the court to grant plaintiff’s motion for a nonsuit and directed verdict, and for judgment on the pleadings based upon the assumption that by presenting a claim against the Klamath Steamship Company for indemnity for her husband’s death, under what is known as the Workmen’s Compensation, Insurance & Safety Act, plaintiff divested herself of any right to bring an action against the defendants under our employers’ liability law.

Those sections of the California act which are supposed to bear upon this contention are found in Chapter 176 of the statutes of California for 1913, as amended by Chapters 541, 607 and 662, Laws of 1915, and are as follows:

“Sec. 12. (a) Liability for the compensation provided by this act, in lieu of any other liability whatsoever to any person, shall, without regard to negligence, exist against an employer for any personal injury sustained by his employees arising out of and in the course of the employment and for the death of any such employee if the injury shall proximately cause death in those cases where the following conditions of compensation concur: * *

“Sec. 73. (a) All proceedings for the recovery of compensation, or concerning any right or liability arising out of or incidental thereto, or for the enforcement against the employer or an insurance carrier of any liability for compensation imposed upon him by this act in favor of the injured employee, his dependents or any third person, or for the determination of any question as to the distribution of compensation among dependents or other persons or for the determination of any question as to who are dependents of .any deceased employee, or what persons are entitled to any benefit under the compensation provisions of this act, or for obtaining any order which by this act the commission is authorized to make, shall be instituted before the commission, and not elsewhere, except as otherwise in this act provided, and the commission is hereby vested with full power, authority and jurisdiction to try and finally determine all such matters, subject only to the review by the courts in this act specified and in the manner and within the time in this act provided.

“75a. The commission shall have jurisdiction over all controversies arising out of injuries suffered without the territorial limits of this state in those cases where the injured employee is a resident of this state at the time of the injury and the contract of hire was made in this state, and any such employee or his dependents shall be entitled to the compensation or death benefits provided by this act.

“Sec. 31. The making of a lawful claim against an employer for compensation under this act for the injury or death of his employee, shall operate as an assignment to the employer of any right to recover damages which the injured employee, or his personal representative, or other person, may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce in his own name the legal liability of such other party. The amount of compensation paid by the employer or the amount of compensation to which the injured employee or his dependents is entitled shah not be admissible in evidence in any action brought to recover damages, but any amount collected by the employer, under the provisions of this section, in excess of the amount paid by the employer, or for which he is liable, shall be held by him for the benefit of the injured employee or other person entitled.”

Whether or not the legislative authority of the State of California extends to providing for compensation for an injury inflicted by one citizen of that state upon another citizen, even when the injury occurs outside the territorial limits of the state, need not be discussed or questioned. Neither, is it necessary to discuss the effect of such an assignment or subrogation by operation of law, as is provided for in the section last quoted, where the cause of action to which the subrogation is intended to apply arose or is suable in the state.

But in this case a different question arises. The accident and death occurred in this state, and the defendants are receivers of a corporation located in this state. As a corporation resident in this state is suable here only, they are in fact sued here. In this state a right of action for tort is not assignable. Plaintiff, who was a resident of California, could not have gone to California and made an assignment of an interest in her claim for damages against defendants to a resident of that state, or to the Klamath Steamship Company, which could have authorized it to bring an action in our courts to recover damages for the death of Captain Borvik. Such an action would be contrary to the policy of our laws and against the decisions of our courts. While courts, as a matter of comity, will usually enforce a right arising out of a statute of another state, they will .not do so where the statute infringes upon the law of the forum: 5 B. C. L., § 8, and cases there cited.

It is conceived that the statute of California can give the Klamath Steamship Company no higher or greater right than it could have obtained by private contract with plaintiff, and that could never have gone to the extent of authorizing it to sue in its own name in our courts on account of a tort committed to the damage of plaintiff. It may also be noticed that plaintiff is not divested by the California statute of all interest in her claim, hnt the employer is only allowed to retain an amount sufficient to reimburse itself for the amount which it has paid, or is liable to pay, as compensation, and is required to pay the overplus, if any, to plaintiff.

6. The California act does not profess to make full compensation for the injury, but limits the amount to be allowed to the sum of $5,000. Between the employer and employee this sum is the limit of the recovery, but this fact does not bar a recovery against the actual wrongdoer to the full extent of the injury suffered. With such an interest in the case we are of the opinion that plaintiff would, in any event, be entitled to sue in her own name in our courts in case the Klamath Steamship Company should fail to do so, even if we gave, which we do not, full effect to the subrogation provided for by the California statute.

The views above expressed render unnecessary any discussion as to the sufficiency of the supplemental complaint filed by plaintiff, or the validity of the evidence offered in support of it. Neither is it necessary to discuss the validity of plaintiff’s claim against the Klamath Steamship Company beyond saying that, in view of the decision of the Supreme Court of the United States in the case of Southern Pac. Co. v. Jensen, 244 U. S. 205 (61 L. Ed. 1086, Ann. Cas. 1917E, 900, L. R. A. 1918C, 451, 37 Sup. Ct. Rep. 524, see, also, Rose’s U. S. Notes), it seems clear that the Industrial Accident Commission of California had no jurisdiction to entertain plaintiff’s claim against the steamship company, and that if that company has failed to prosecute an appeal to the Supreme Court of the United States, or has lost that privilege by sleeping upon its rights, it has been guilty of such laches as would probably preclude it from recovering from these defendants.

Since the original draft of this opinion was prepared, we have received the advance sheets containing the opinion of the United States Supreme Court in the case of Knickerbocker Ice Co., Plaintiff in Error, v. Lillian E. Stewart, Defendant, 253 U. S. 149 (64 L. Ed. 834, 40 Sup. Ct. Rep. 438), decided May 17, 1920, in which it is held that even Congress cannot constitutionally authorize a state Industrial Accident Commission to take cognizance of marine torts; thus settling the question in accordance with the views above expressed.

7. It may be added that there is no evidence that there has ever been any remittitur from the Supreme Court of California to the lower court in the matter, or any proceeding taken which establishes the decision of the California Supreme Court as a final judgment so as to bring it within the “full faith and credit” clause of the Constitution.

In any case .these defendants are not liable ta be harrassed by another action after the present suit is disposed of. Beyond that contingency it is a matter of no consequence to defendants whether the action is brought by plaintiff or by the steamship company.

It will be noticed that the alleged award by the California Industrial Accident Commission is not pleaded by way of mitigation or reduction of damages ; but as a bar to this action. As such it is ineffective. Defendant’s motions for abatement, non-suit, and directed verdict were, therefore, properly overruled.

8. Defendants except to the giving of the following instruction:

“If yon find from a preponderance of the evidence that the work that the receiver was doing was one involving a risk or danger to the public and that the decedent was a member of the public and rightfully upon the premises where and when he was injured, and that the receiver failed to use any one or more of snch devices, care and precaution which it was practicable to use for the protection and safety of life and limb, and that such failure was in one or more of the particulars as alleged by the plaintiff, and that by the use thereof the efficiency of the structure, machine, or other apparatus or device said receiver was using would have been preserved, and that by reason of such failure, the same being the proximate cause of the accident, that the decedent received the injuries which caused his death, in that event the plaintiff would he entitled to recover.”

The argument in support of appellants’ contention is stated as follows:

“Whatever duty the defendants owed Captain Rorvik was not a duty they owed to him as a member of the public. Captain Rorvik docked the steamship ‘Klamath’ at our dock for the purpose of loading it with lumber we had sold to he loaded on that steamship, and thereby there arose certain legal duties that the defendant owed to the deceased, hut all those legal duties were and are well defined by laws other than the duties laid down by our Employers ’ Liability Act. The act did not add to or take away any of these duties.

“By this instruction the jury were told that the plaintiff could recover if decedent was a member of the public as such, and if the work the receiver was doing was one involving a risk or danger to the public as such, if the decedent was rightfully upon the premises, etc. The vice of this instruction lies in the fact that the Employers’ Liability Act does not embrace the public as such, and the instruction states that it does.”

The argument proceeds upon the theory that this action is based upon the proposition that deceased was a mere member of the public without any duties which required his presence at the place where he was injured, and in contiguity to the machinery and apparatus employed in loading the vessel, whereas the complaint, taken as a whole, and the uncontradicted testimony, show that deceased was necessarily in the position he occupied and engaged with defendants’ employees in loading the vessel. It is true that the duties of the deceased and the employees of the steamship company began where the actual physical labor of defendants’ employees left off, but no link in the chain was broken; the loading was a continuous work, and could not be otherwise; the lumber was put upon the slings extending from the vessel by defendants’ employees, and from that position moved aboard by machinery operated by the employees of the steamship company. The vessel could not be loaded in any other manner, and while deceased was in one sense a “member of the public,” in another he was an employee engaged in working about or in the vicinity of machinery, found by the jury to be dangerous, which brings the case squarely within the rule announced in Clayton v. Enterprise Electric Co., 82 Or. 149 (161 Pac. 411).

If there existed a controversy as to the surroundings or the reason for the decedent’s presence on the wharf, or his relation to the subject matter, the instruction objected to might have had a tendency to mislead the jury; but, in view of the evidence actually given, it tended to narrow, rather than extend, the limit of defendants’ liability.

In a subsequent instruction Judge Tucker explained what he meant by the term, “a member of the public,” in the following language:

“In this connection, I instruct you that if you find the decedent, at the time he received the alleged injuries, was upon the wharf of the North Pacific Lumber Company, defendant, and was in charge of the loading of the steamship ‘Klamath,' either upon the express or implied invitation of the receiver, and that as captain of the said steamship his duties in respect thereto required that he be upon” the wharf, that in that event he was a member of the public, and as such was entitled to whatever protection the law provides for the public. Or if you find that the decedent was in charge of the loading of the vessel, and that the vessel was being loaded at the said wharf at the express or implied invitation of the receiver, that by reason thereof the decedent was entitled to go upon the wharf if it was reasonably necessary for him so to do in order to superintend the loading of the vessel, and while upon the wharf under such conditions, he was a member of the public, he was, as a matter of law, rightfully upon the wharf.

“The defendants in their answer claim, in effect, that it was not necessary for the decedent, the captain of the ship, in the discharge of any of his duties at the time he was hurt, to stand in front of the pile of lumber which was piled close to the edge of this dock, and that he received the injuries that resulted in his death from his own carelessness and negligence in standing in this narrow place. And if you believe, gentlemen of the jury, from a preponderance of the evidence in this case, that the duties of the captain did not require him to stand in this narrow place, and you further find that it was carelessness and negligence on his part to stand in this place when there were other places upon the dock that he could have stood with safety, and you believe from a preponderance of the evidence that he sustained his injury, which resulted in his death, because of his own carelessness and negligence, and that there was not any negligence on the part of the defendants contributing to the injury, then your verdict should be in favor of the defendants."

In view of this explanation the instruction objected to was not misleading, any tendency in that direction being obviated by the clear explanation given in the succeeding part of the charge last above quoted, which is fairly within the rule announced in Clayton v. Enterprise Electric Co., 82 Or. 149 (161 Pac. 411).

Several other objections to instructions are specified, but they all find their basis in the theory of the nonapplicability of the workmen’s compensation law to the circumstances of the case at bar, or to the ruling of the court as to the effect of the claim and award under the provisions of the California Compensation Act. If the writer is wrong in his views as to the force and effect of either of these, then the court below was wrong, and this opinion is not the law. As we view the law, the objections are not well taken.

9. The last objection is to an instruction upon the measure of damages, which is as follows:

“If you find from a preponderance of the evidence that the plaintiff is entitled to recover in this case, it will then become your duty to consider and assess her damages. In determining the amount of the damages, you are instructed that if she is entitled to recover she is entitled to damages equal to the pecuniary loss resulting to her from the death of her husband. The value of the decedent’s life is the net amount which the decedent would have saved from his earnings by his skill and bodily labor in his calling during the residue of his life, had he survived, taking into consideration, from the evidence submitted, his age, health, ability, habits of industry and sobriety, and mental and physical skill, so far as they affect his capacity for earning money by rendering service to others or accumulating property. All this must depend upon the evidence that has been produced before you on that subject. The amount of damages, however, shall not exceed that asked for in the complaint.”

We see nothing wrong in this instruction. The plaintiff was decedent’s wife and only heir. Her damages would be an amount equal to the pecuniary loss resulting to her from the death of her husband, and that amount would be such a sum as he probably would have accumulated if he had been permitted to live to the limit of his life expectancy. There is no absolute method of computing the damages in a case of this kind. It would be within the bounds of speculation to imagine that in spite of health conditions and habits, both shown to have been good, there was a possibility that he might die sooner than the life expectancy tables indicated, by some accident on land or sea and incident to his profession, or that his accumulations might be swept away by bad investments, leaving him to die a pauper, or that plaintiff might have died before him, or any one of many possible contingencies. The rule adopted by the court was one more likely to work out justly in practice than any other that can be formulated, and is sanctioned by authority: McClaugherty v. Rogue River Electric Co., 73 Or. 135 (140 Pac. 64, 144 Pac. 569).

This has been an exceedingly interesting and difficult case. The facts are scarcely contested, but the questions of law involved are intricate, and their examination has consumed much time and labor; but, after a thorough consideration of them, we feel assured that no mistake has been made to the prejudice of defendants, and the judgment of the lower court will therefore be affirmed. Affirmed.

Johns, J., concurs. Bean and Bennett, JJ., concur in result. (195 Pac. 163.)

This appeal was originally presented to one department, but upon the petitiqn of the defendants, receivers, a rehearing was granted,, and the appeal was heard by the court sitting en banc. The first hearing resulted in an affirmance of the judgment. The reader is referred to the original opinion, reported in 190 Pac. 331, for á statement of the facts.

The defendants contended in their petition for a rehearing, and they especially urged at the second oral argument that:

(1) “It was error to uphold the trial court in instructing the jury that the plaintiff could recover if the work in which defendants were engaged at the time of the injury to and the death of C. P. Eorvik involved a risk or danger to the public.

(2) “It was error to hold that A. Maude Eorvik could recover $5,000 from the Industrial Accident Commission of California and $12,500, from the defendants in this action.

(3) “It was error to hold that the injury and death of Captain C. P. Eorvik was a maritime tort.”

Former Opinion Sustained on Rehearing. On rehearing there was a brief filed over the names of Messrs. Emmons & Webster and Messrs. Wilbur, Spencer, Beckett & Howell, for appellants, with an oral argument by Mr. S. C. Spencer. For respondent there was a brief filed by Mr. Ira S. Eillick and Messrs. Angeli & Fisher, with an oral argument by Mr. Homer D. Angelí.

---

Rehearing

former opinion sustained January 25, 1921.

HARRIS, J.

In the original opinion we said:

“We deduce the rule that the Employers’ Liability Act does not extend to the protection of the general public as such, but that it does extend its protection to employees of the particular person owning or operating dangerous machinery or engaged in hazardous employments, and to other persons or employees of other corporations whose lawful duties require them to be or work about such machinery, or expose themselves to the hazards of the machinery or appliances in use by the owner thereof.”

“This,” the defendants concede in their petition for a rehearing, “is a clear, concise, and correct statement of the law as we understand it,” but the defendants insist, “This law was not followed in this case.” According to the contention of the defendants, “the complaint was drawn, and the case tried so far as plaintiff is concerned, and the jury was instructed upon the theory that the Employers’ Liability Act of the State of Oregon extended to the protection of the general public as such.”

10. We are unable to concur with the defendants. It,is true that the trial court did repeatedly say to the jury in effect that the receivers of the lumber company were within the embrace of the Employers’ Liability Act (Or. L., §§ 6605-6659) if the work carried on by them involved a risk or danger to the public; but it is also true that the court gave additional instructions which must be kept in mind, for, when testing the correctness of the instructions to the jury, we must view the charge as a whole. In substance, the court told the jury that the plaintiff was entitled to prevail if the defendants were engaged in a work involving a risk or danger to the public, and if the decedent was a member of the public rightfully upon the premises where he was injured; and then by a subsequent instruction, as pointed out in the original opinion, the trial judge explained to the jury what he meant by the words “a member of the public” in the following language:

“In this connection, I instruct you that, if you find the decedent, at the time he received the alleged injuries, was upon the wharf of the North Pacific Lumber Company, defendant, and was in charge of the loading of the steamship ‘Klamath,’ either upon the express or implied invitation of the receiver, and that as captain of the said steamship his duties in respect thereto required that he be upon the wharf, that in that event he was a member of the public and as such was entitled to whatever protection the law provides for the public. Or if you find that the decedent was in charge of the loading of the vessel, and that the vessel was being loaded at the said wharf at the express or implied invitation of the receiver, that by reason thereof the decedent was entitled to go upon the wharf if it was reasonably necessary for him so to do in order to superintend the loading of the vessel, and while upon the wharf under such conditions he was a member of the public, he was, as a matter of law, rightfully upon the wharf.”

The uncontradicted evidence shows that at the time of the accident the decedent was engaged in the work of superintending the loading of the ship. Captain Rorvik was not a loiterer, nor a trespasser, nor a mere idle member of the public; but he was engaged in work at the very moment of his hurt. He was in very truth a workingman at the time when and the place where he was hurt. The right of the plaintiff to recover was in the final analysis made to depend upon whether Captain Rorvik was rightfully upon the wharf, and his right to be on the wharf was in turn made to depend upon whether he was there performing work upon the express or implied invitation of the defendants. The charge, taken in its entirety, is sufficiently clear, and it is not likely that the jury was or could have been misled to the extent of believing that the plaintiff was entitled to recover if the decedent was a mere member of the general public, regardless of whether or not he was engaged in the performance of work while lawfully on the premises. The charge, considered as a whole, required the jury to find, among other things, that the decedent at the time of the injury was lawfully and properly upon the wharf and engaged in the work of superintending the loading of the ship, before a verdict could be returned for the plaintiff; and hence the law as it is stated in the original opinion was applied by the trial jury.

11,12. At this stage of the discussion we may for the moment pass over the defendants’ second point, and proceed with the investigation of the third point; and, after disposing of it, we shall return to the second point urged by the defendants. After further study of the record we are persuaded that we must conclude that it cannot be said as a matter of law that Captain Rorvik’s death resulted from a maritime tort. The theory has been advanced that the tort was a maritime tort, for the reason that Rorvik was engaged in a maritime contract. The test for determining whether a tort is a land or maritime tort is not the same as the test for determining whether a contract is a land or a maritime contract. The character of a tort is determined by the locality of the act; and consequently the fact that a person is injured while performing a maritime contract does not necessarily determine the character of the tort: Swayne & Hoyt v. Barsch, 226 Fed. 581, 590 (141 C. C. A. 337); Thomas v. Lane, Fed. Cas. No. 13,902 (2 Sumn. 1, 9); Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 59 (58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157, 34 Sup. Ct. Rep. 733); Philadelphia W. & B. R. Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. 215 (16 L. Ed. 433); The Plymouth, 3 Wall. 20, 25 (18 L. Ed. 125, see, also, Rose’s U. S. Notes). According to the complaint, a portion of the lumber piled upon the wharf was suddenly shoved forward, striking Borvik, “by reason of which he was knocked off the said wharf, receiving therefrom mortal injuries, from the effects of which he died.” The first, further and separate defense found in defendants’ answer is framed upon the theory that from some cause unknown to the defendants Borvik fell from the wharf “on and against the side of said steamship ‘Klamath,’ and from thence on to some logs and timbers in the Willamette River; that all of the injuries received by the said decedent were received either on the steamship ‘Klamath’ while the same was in the Willamette River or were received on logs and timber floating in said river; that the said Willamette River was a navigable river.” The allegations of this first further and separate defense are denied by the reply. The nncontradieted evidence is that some of the lumber in the pile, beside which Rorvik was standing, was suddenly shoved forward and struck him and knocked him off the wharf. The evidence further shows that Rorvik’s back was broken. There was no attempt by the defendants to show that the broken back was the immediate result of striking the logs in the river, and not the immediate result of being struck by the lumber on the wharf. Notwithstanding the allegations of the first further and separate defense the defendants apparently abandoned any attempt to sustain those allegations by any evidence offered at the trial; and, moreover, the defendants did not attempt in their original brief to urge the first further and separate defense as a reason for defeating the claim of plaintiff. Furthermore, in their petition for a rehearing the defendants say:

“It is not a maritime tort; the captain recéived his injury while on the land. * * The matter was not discussed in any of the briefs, nor in the oral arguments as to whether or not it was a maritime tort. ’ ’

Thus it appears not only that we cannot say as a matter of law that the tort was a maritime rather than a land tort, but it also appears that the defendants themselves concede, and, indeed, insistently contend, that it was a land tort; and consequently we must agree with the contention of the defendants that we cannot say that the tort was a maritime tort. Prom this conclusion it follows as a natural sequence that there was nothing in the character and nature of the tort to prevent the Workmen’s Compensation Act of California (Stats. 1913, p. 279) from operating. By the same token we must also conclude that there was nothing in the character or nature of the tort to prevent the plaintiff from invoking our Employers’ Liability Act or to deprive the trial court of authority to award damages, unless some reason, other than the character of the tort, can be pointed out: See The Albion (D. C.), 123 Fed. 189; The Straybo, 98 Fed. 998 (39 C. C. A. 375). In short, the character of the tort does not render the California Compensation Act inoperative, nor does it prevent the enforcement of our Employers’ Liability Act.

The second point urged by the defendants involves the contention that the award made under the provisions of the Workmen’s Compensation Insurance and Safety Act of California precludes the plaintiff from prosecuting or maintaining this action. It will be recalled that Captain Rorvik, the husband of the plaintiff, was injured on August 3, 1916, and died five days afterwards, on August 8th. The plaintiff, on October 27, 1916, presented to the Industrial Accident Commission of California her claim for compensation under the Workmen’s Compensation Act of that state. The Klamath Steamship Company, Rorvik’s employer, answered and denied the claim made by plaintiff. Subsequently, on December 19, 1916, the steamship company amended its answer. Afterwards, on January 19, 1917, a hearing was had and .an award of $5,000 was made to the plaintiff by the California Industrial Accident Commission. The steamship company was not satisfied with the award, and by a writ of certiorari carried the controversy to the Supreme Court of California, where on March 19, 1918, the award was affirmed; and on April 17, 1918, a petition for a rehearing was denied: A. F. Easterbrook Co. v. Industrial Acc. Com., 177 Cal. 767 (177 Pac. 848). There is nothing in the record informing us of the date when the instant action was commenced, although it does appear that the second amended complaint upon which the cause was tried was filed on January 7, 1918, and hence the California proceeding had not yet terminated when the Oregon action was begun. It does not appear from the record that there has ever been a remittitur from the Supreme Court of California. For aught that appears from the record, the litigation may be still pending; and, indeed, it is asserted by the plaintiff in her brief, in answer to the petition for a rehearing, that “the matter still pends in the appellate courts, a writ of certiorari to the Supreme Court of the United States having been applied for.” At any rate, it affirmatively appears from the uncontradicted testimony of the plaintiff that the California proceeding has been sufficiently stayed to prevent her from obtaining any money. No payments have been made to her, for thus far she has not been able to compel any payment; and, moreover, the defendants have made no attempt to show that the award made by the California Industrial Accident Commission is final so that it is even now enforcs able.

The defendants make two contentions in respect of the effect of the award. On the one hand, the defendants claim that they were entitled to an abatement of the Oregon action until the determination of the California proceeding; and, on the other hand, they argue that the California award at all times operated as an absolute bar to the subsequent Oregon action. The status of the California award, however, cannot affect the judgment rendered in the Oregon action, for in our view the result is the same whether we treat the record as a proceeding which is still pending or as an enforceable finality.

13,14. We may assume for the purposes of this discussion that the proceeding begun before the California Industrial Accident Commission was “an action” within the meaning of that term as used in the law of abatement; and, notwithstanding the fact that all of the elements usually required to constitute “a prior action pending” were not present, we may further assume that there was such an identity of parties, issues, causes of action, and relief sought and obtainable as fully come within the embrace of the rules governing the abatement of actions; and even then, after assuming the existence of all such required elements, it cannot be said that the trial court erred in refusing to suspend the domestic action until the final determination of the foreign proceeding. (The pend-ency of the prior action in another state does not entitle a party as a matter of right to an abatement of the second or domestic action, although the court may in its discretion postpone the second action until after a decision of the first action: Beneke v. Tucker, 90 Or. 230, 235 (176 Pac. 183). Even though we were called upon to determine whether the trial court ruled properly, instead of being required, as we are, only to decide whether there was an abuse of legal discretion, our view would be that the trial court was justified in its refusal to suspend the domestic action and properly permitted the trial to proceed. Obviously the record furnishes no facts whatever upon which, to base any claim that the trial judge abused his discretion in refusing to suspend the Oregon action. Although we have thus far assumed for the purposes of the discussion that all of the elements usually required to constitute an action pending were present, it is manifest that the relief sought and obtainable in the California proceeding is only partial, while the relief sought and obtainable in the domestic action is full and complete. In the California proceeding $5,000 is the limit of recovery, but in the Oregon action there is no arbitrary limit fixed by statute: 1 C. J. 72.

Section 31 of the California Compensation Act in substance declares that the making of a lawful claim against an employer for compensation shall operate as an assignment of any right of action the employee may have against a third person, and the employer is subrogated to the right of the employee and the employer may enforce in his own name the legal liability of the third person; but the statute also provides that any amount collected by the employer, in excess of the amount paid by the employer, or for which he is liable, shall be held by him for the benefit of the injured employee or other person entitled." The defendants argue that, by force of the California statute, any right of action that Mrs. Eorvik may have had against the lumber company was automatically assigned to the steamship company, the employer of the decedent, when she filed her claim against the steamship company. The plaintiff counters by arguing that the right of action conferred upon her by our Employers' Liability Act would not survive her death, and hence is not assignable under the laws of this state; and, that, since a foreign statute conflicting with the policy of our laws will not be enforced here, the California statute did not effect an assignment.

15-18. Survivorship is the test of assignability. Any claim which affects the estate of a party, although arising out of tort, may be assigned; but the rule is otherwise where it arises out of an injury to the person. An assignment of a mere litigious right is invalid ; but an assignment of property is valid, although that property may be incapable of being recovered without litigation. Stated broadly, nothing is assignable which does not directly or indirectly involve the right of property except where otherwise provided by statute. Eights given by statute for the redress of personal wrongs are generally not assignable: Dahms v. Sears, 13 Or. 47, 58 (11 Pac. 891); Mitchell v. Taylor, 27 Or. 377, 384 (41 Pac. 119); Sperry v. Stennick, 64 Or. 96 (129 Pac. 130); Cooper v. Hillsboro Garden Tracts, 78 Or. 74, 86 (152 Pac. 488, Ann. Cas. 1917E, 840); Mumford v. Wright, 12 Colo. App. 214 (55 Pac. 744); Dawson v. Great Northern etc. R. Co., 1 K. B. 260, 271; Weller v. Jersey City etc. St. R. Co., 68 N. J. Eq. 659 (61 Atl. 459, 6 Ann. Cas. 442); 5 C. J. 886; 4 Cyc. 26. It has already been determined in this jurisdiction that a right of action conferred upon a widow by our Employers’ Liability Act is a personal right which dies with her; and hence, under the general rule, such a right is not assignable: Wilcox v. Warren Construction Co., 95 Or. 125, 143 (186 Pac. 13). It has been held in other jurisdictions that a cause of action for injuries resulting in death, under a statute conferring such right upon a particular beneficiary, is not assignable: Marsh v. Western New York etc. R. Co., 204 Pa. 229 (53 Atl. 1001); Southern Pacific Co. v. Winton, 27 Tex. Civ. App. 503 (66 S. W. 477); Texas etc. R. Co. v. Showalter, 3 Wills. Civ. Cas. Ct. App., sec. 69.

19. If there were no factors to be considered except the language of the California statute and the general rule which in this state serves as the test of assign-ability, the plaintiff might well claim that the assignment declared by the California statute would not be enforced in this state, for the reason that it is contrary to the policy of our laws. However, there is another factor which must enter into the calculation. Our Workmen’s Compensation Act contains a section which provides that, where an employee, or, in case of death, his dependent, elects to take under the Compensation Act for an injury done by “another not in the same employ,” the cause of action “against such other shall be assigned to the state for the benefit of the accident fund”: Section 6616, Or. L. Although there are material differences between Section 6616 of our statute and Section 31 of the California act, we may nevertheless assume, without deciding, that they are substantially the same; and we may further assume, without deciding, that because of the assignment required by Section 6616 of our statute, it is the present policy of our law to enforce assignments made under foreign statutes similar to ours, and that therefore the assignment effected by the California statute will be enforced in this jurisdiction, even though it be further assumed that the right of action exists only by force of our statute, and that there would be no right of action at all in the absence of our Employers’ Liability Act. We have made the numerous assumptions previously mentioned in order that the contentions made by the defendants may be considered in a light most favorable to them. Although under the California act the employer is enabled to sue in his own name, nevertheless, assuming that the steamship company became an owner of the right of action against the lumber company, the steamship company became such owner only to the extent of $5,000; and the balance of such right, which has since been proved to be worth $7,500, in truth continued to be owned by Mrs. Rorvik. It will be remembered that Mrs. Rorvik obtained a judgment for $12,500 against the defendants. She either owns all of that judgment or a part of it, and if she only owns a part of it, her part amounts to $7,500. It is true that the California statute provides that the employer may sue in his own name, but it is also true that the statute does not declare that the employee or his dependent cannot become a party. The right of action was an entirety and could not be divided, without the consent of the lumber company, so as to enable the steamship company to sue for its portion in one action, and Mrs. Rorvik to sue for the balance in another action. Since the right of action is an entirety, but is in truth owned by two persons, and both persons are necessary parties, then under the rule which formerly prevailed in this jurisdiction both owners would be required to join as plaintiffs, with the result that, if one owner refused to appear as a party plaintiff, the other owner would be powerless to proceed in an action at law: Home Mutual Ins. Co. v. Oregon R. & N. Co., 20 Or. 569 (26 Pac. 857, 23 Am. St. Rep. 151); State Ins. Co. v. Oregon R. & N. Co., 20 Or. 563 (26 Pac. 838). See, also, Fireman’s Ins. Co. v. Oregon R. Co., 45 Or. 53 (76 Pac. 1075, 2 Ann. Cas. 360, 67 L. R. A. 161). The rule was subsequently changed, however, so that now in actions at law as well as in suits in equity one owner desiring to sue may, in case of the refusal of the other to join as a plaintiff, make the other owner a party defendant, and thus enforce the single right owned by the two persons: Williams v. Pacific Surety Co., 66 Or. 151, 156 (127 Pac. 145, 131 Pac. 1021, 132 Pac. 959, 133 Pac. 1186). See, also, Thomas v. Thruston, 87 Or. 650, 655 (171 Pac. 404); Northwest Door Co. v. Lewis Inv. Co., 92 Or. 186, 190, 193, 199 (180 Pac. 495).

20. In the instant case it is clear that the steamship company was not the sole owner of the right of action, although it may have been and may still be the owner of a part of it. It is likewise clear that Mrs. Rorvik owned either the whole of the claim or the remaining portion of it, and because of such ownership she had an enforceable interest: Overholt v. Dietz, 43 Or. 194, 199 (72 Pac. 695); Graham v. Light, 4 Cal. App. 400 (88 Pac. 373). There was a single claim owned by two persons. One of the owners brought this action on this single claim without making the other owner a party, although the defendants could, by proper objections, have compelled the plaintiff to make the steamship company a party to the litigation. The defendants did not object’to the omission, notwithstanding they had ample opportunity to do so; and because the defendants did not object they waived the defect: Thompson v. Hibbs, 45 Or. 141, 147 (76 Pac. 778); Burggraf v. Brocha, 74 Or. 381, 385 (145 Pac. 639); Schultz v. Selberg, 80 Or. 668, 677 (157 Pac. 1114); Overholt v. Dietz, 43 Or. 194, 196 (72 Pac. 695).

21. We may assume for the purposes of the discussion that the plaintiff cannot have two satisfactions, one in California and another in Oregon; and hence a satisfaction of the Oregon judgment would operate as a satisfaction of the California award. Thus far, however, neither the award nor the judgment has been satisfied. In effect, the steamship company has persistently denied that it owned any interest in the right of action against the lumber company, for the steamship company has from the very beginning contested the claim for compensation made by Mrs. Rorvik and thus denied that her claim was a lawful one. Moreover, the steamship company has by a formal written assignment at least attempted to transfer any interest it may have had to Mrs. Rorvik; and hence, even though it be assumed that this attempted assignment is without legal efficacy, it is plain that, in view of all the circumstances shown by the record, the steamship company cannot bring another action against the lumber company and prosecute it to a judgment for damages. Moreover, the plaintiff testified as follows:

“I signed a paper saying that from what I won in this suit I would reimburse them [the steamship company] for any amount they might be paid, or that I might win in the courts there, which I haven’t won so far."

We adhere to the conclusion reached in our original opinion, and it follows that the judgment from which the defendants have appealed must be affirmed.

Affirmed.

Former Opinion Sustained on Rehearing.