*1
Jаnuary
reargued
Argued
5, 1960,
reversed
October
January 25, 1961
remanded
THOMAS v. FOGLIO
James Goodwin, O. the cause respondent. On the brief were Jack, Groodwin Oregon City, Philip Santos, A. Portland. Levin, Before McAllister, Justice, Chief and Rossman, Justices. Perry, O’Connell Warner, Sloan, Lusk, O’CONNELL, J. brought damages
Plaintiff this action to recover resulting alleged Employers’ from the violation of the Liability jury *3 654.305. Law, ORS The returned a plaintiff, judgment in favor of a verdict but notwith- standing appeals. the verdict was entered. Plaintiff employee Logging an of Elk the
Plaintiff, injured logs loading Company, was while on defend- Logging log Company Elk Creek truck. was ant’s Compensation the Act; covered under Workmen’s de- compensation not. Plaintiff recovered was fendant Industrial Accident Commission and the State from party prоvided by brought as action this third then 656.154. ORS plaintiff employed accident was time
theAt
Company
job
Logging
aas
loader. His
by Elk Creek
tongs
logs
removing
from
the
the
after
consisted
they
required
truck.
the
This
loaded onto
had been
plaintiff
top
the load. When
Trim
was
the
on
to be
just
log
tongs
a
which had
from
been
removing the
log started to roll.
the
Plaintiff,
truck,
hoisted
being
jumped
top of a water
onto the
struck,
to avoid
immediately
truck cab. His
behind the
tank located
of the tank and
on the metal surface
calked boots slid
ground injuring
knee.
his
he fell
allegations
complaint
suf-
contained
Plaintiff’s
charge
a violation of
defendant with
ficient to
Liability
specifically
Employers’
defendant’s
Law,
top
platform
provide
on the
a safe
failure
danger
refuge
plaintiff dur-
for
from
water tank as
loading operation.
ing
answer raised
Defendant’s
employer,
negligence,
his status as
the issues of his
assumption
of risk
contribu-
defenses of
tory negligence.
moved for a directed
The defendant
following grounds:
(1) that defendant
verdict on the
meaning
employer
Em-
not an
within
was
Liability
(2)
ployers’
did
that defendant
Law;
contem-
instrument
involved as
control over the
have
Liability
(3)
Employers’
plated
Law,
under the
negligence
insufficient evidence
that there was
jury.
submitting
charged
the matter to the
to warrant
ease was submitted to
denied and the
motion was
plaintiff
jury.
returned for
in the
A
was
verdict
judgment
entered.
for which
was
of $18,452.75,
amount
notwithstanding
judgment
for a
then moved
Defendant
granted.
appeal
was
This
which motion
verdict,
judgment.
the latter
from
is taken
judgment
for the
attacks the
n.o.v.
first
Plaintiff
judgment
although
motion for the
reason
ground
general
that the court
on the
made
n.o.v.
granted
motion for
directed
defendant’s
have
should
plaintiff
the motion
contends
verdict, still,
*4
grounds
specific
granted
on
judgment n.o.v. was
relying
verdict,
directed
for the
motion
in the
forth
set
(1943);
P2d 614
Ingalls
170
Isensee,
Or 393, 133
v.
(1942)
and ORS 18.140. It is that onr (cid:127)which were stated in the for a di defendant’s motion essentially grounds rected verdict are the same judgment those recited in the motion for a n.o.v. assignment of error Therefore, is without merit. principal question appeal The on this is whether deciding the trial court was correct in as a matter of employer law that defendant was not an under OES commonly generally” referred to as the “and 654.305, Employers’ Liability clause of the Law. OES 654.305 provides part “Generally, all contrac- owners, persons having charge and other tors or subcontractors any involving responsible work for, or risk or of, every danger employes public, or the shall use precaution practicable care device, * * use being held “There that, trial court no evidence charge had either of or was re- the defendant loading hauling logs, sponsible work holding undеr the Act for him is no basis re- there sponsible.” person that to
It
now well established
entitle
prove
section he must
under this
that he
to recover
Byers Hardy,
employee.
v.
216 Or
337 P2d
42,
is an
(1959);
Holman
et
v.
Co.
130
al.,
806
Transfer
Drefs
Saylor
(1929);
Enterprise
v.
Electric
545
(1929);
P 302
Rorvik v. North Pac. Lumber
99
Co.,
Although
(1920).
P190
It would who sell's equipmеnt by which is intended for use and is used after the is not who, sale, workmen involved in equipment put, to which is not an the use em Clayton Enterprise In ployer the Act. under Electric (1916), P 411 the Act was 149, 161 82 Or extended electricity supplier injury where an include by employee of defendant’s customer incurred who came in contact with a defective switch owned subject customer but which was to some “control” the defendant. We need not now decide whether the treating court was correct in within the defendant meaning person “having charge of the Act as a of, responsible performed by plaintiff for” the work employee. point simply At this we to note that wish merely supplies equipment one who which is to be *6 plaintiff’s employment in the course of used is not an employer Employers’ Liability the under Law. This equipment is also true where the is leased rather than apply in sold. The Act cannot unless some sеnse the “charge “responsible of” or defendant has is for” the injury of which the arose. The defendant work out way. enterprise participate in in some must problem is to determine what is meant difficult problem presented “participation.” A in similar application 656.154. of ORS Under an section, employer employee an who is covered the Work- (ORS may 656) Compensation ch recover men’s Act person person against unless that third a third causing subject and he or his workman the Act injury, premises of the on injury at the time over “was, joint supervision had control with the he which * * injured employer workman of the 656.154 and ORS 654.305 are cast Both ORS control the defendant’s over the work out of terms pass injury do arises. We which required the control question of whether under each is the but both statutes have same, statutes these liberally to cover situations in construed which been not have actual contrоl did over the defendant activity immediate which cause of specific injury. participation Defendant’s plaintiff’s has it where amounted to sufficient co considered been
547 accomplishing in which operative a task conduct employer plaintiff’s were the defendant both Lininger, P2d 224 356 Pruett v. Or interested. interworkings (considering of OBS (1960) 547 656.154); v. Rudie Wilhelm Fisher 654.305 OES (ORS (1960) 656- 242 355 P2d Co., Whse. Or 26, Bldg. supra 154); McKay Co., Materials v. Pacific 654.305). (ORS prior that in decisions indicate Our participation construing must be OES 656.154 in an a common interest economic benefit more than accomplishment might of the accrue from Lininger, supra; Fisher v. Rudie Wil Pruett task, supra; Structures, v. Timber Johnson helm Whse. (1955); P2d the defendant or Inc., actively plaintiff’s employer employee and must his way carrying join particular physical on the in a injury. produces the Johnson v. Timber work which supra. expressed in As Pruett v. Structures, Inc., “operational supra, Lininger, must there be com employers. employees mingling” of the two Similarly, application of 654.305, in the ORS has subject held defendant cannot be been held that *7 Liability Employers’ unless it is shown that Law there intermingling responsibility” duties and “an of was enterprise. Myers employers in the involved v. the of Byers supra. expressed Hardy, as in Or, Staub, only employment supra, whose “It is those duties machinery employer require to be about them may require own or whose duties such than his other expose in himself or about hazardous condi person to employer of such other which are or structures tions by the Act.” prohibited or circumscribed Or at at 809. P2d foregoing observations it would the basis On had leased his trucks and if defendant that follow loaned Beckgren, Ms servant F/lk the truck to driver, Logging Company he would not have been QRS (and within 654.305. Furthermore, still assum- ing that truck) defendant had though leased the even Beckgren had employee, remained defendant’s the Act aрplicable would not be because there was no evidence prove through Beckgren to that partici- defendant was pating activity in the injury. which caused the question presented
A more difficult if it is found that defendant was not a lessor of the trucks position retaining but was in the of a contract hauler operation control of the own his trucks. In such a question case there would be no as to the fact that participate job loading defendant did in the injury; obviously, truck at the time of the without the logs truck the could not be loaded. But it would still necessary participation be determine whether that bring statutory was sufficient within the defendant “persons having description charge of, or re sponsible clearly for” the work. The record shows Beckgren, actually driver, the truck did not take specific getting logs part act of in the on the truck, removing tongs, doing any or in or in other act relating loading operation. directly As the trial judge opinion, memorandum his stated “the driver bystander nothing than a more insofar as the giving rise to accident was condition concerned.” Beckgren’s shown had been conduct, If it such as helping moving loading truck or with operation, injury, cause had contributed clearly bringing a basis for be would defendant there Borrowing analysis from the Act. in within joint interpreting 656.154, ORS is clear that cases imply control “does not supervision that each right to dictate have employer 'shall the other
549
discharge
particular
the manner in which he shall
his
phase
joint operation.”
of the
217
Brown,
McGuire
(1959).
applies
342 P2d
Act
though only
may
employers
“even
one of the covered
be
said to be
actual control of the site where the
way.”
Lininger, supra,
work is under
Pruett v.
relying
Bartley,
P2d at 551,
Nelson v.
The narrower to us in the (assuming case at bar that defendant was anot lessor (is employer of the trucks regarded whether an can be “having charge component part of” work where the general undertaking responsible for which he is any risk-creating activity does not involve part on the employee of his equipment but does call for the use of he has over which control and if which, not main proper safeguards, necessarily exposes tained with employees employer of the other to an unreasonable carrying risk in the course of on the common enter prise. In a narrow it could be said sense, that in such employer charge a case the defendant does not have charge only equipment. of work but has But the means word “work” ORS 654.305 more than the physical employees movement of the actual hired to job; enterprise perform it means the entire with all necessary parts component completion *9 550 enterprise employers joined
of the in which have both accomplish. in Thus the instant case the defendant “charge “responsible part had of” and was for” that job furnishing of the or “work” which of consisted equipment loading operation. safe to be used in a And loading operation defendant’s interest the extended beyond furnishing adequate equipment; the mere fully develop shall liable later, he as we more was, overloading consequently the fines, for all manner quite him the truck was loaded could affect substantially. mean that a said here does not we have
What including supplier, or a similar vendor, manufacturer, equipment Act. The defend is within the lessor activity participate which tire in the out of ant must Synnes injury et 230 al., 451, arose. Warner by (1925), ALR 904 relied P P proposition. latter In that for this stands dissent Oregon West defendant, shown that was ease employed a contractor to construct had Lumber plaintiff, premises. The on defendant’s a dock injured employee a de contractor, was when of the scaffolding was rope broke. It attached to fective rope was furnished the defendant alleged that the pointed company there as the court but, out, lumber testimony indicate that the com whatever “no was employees rope any that the was knew its pany plaintiff in the work.” оr was used used to be also showed that the evidence Since at 457. 114 Or way any participate in other did not the defendant carrying that held defendant the court work, out Act. under come did judge from the evidence that concluded trial the trucks used in Elk lessor was a defendant operation Company’s and that defend- Logging loading hauling ant retained no control over the or the logs. Upon basis this conclusion the trial judgment court entered n.o.v. We must determine from an examination of the record whether there was jury from sufficient evidence which the could conclude was not a defendant lessor but that he rather, independent employed logs was an contractor to haul Logging Company. for Elk Creek Foglio The record shows was owner of fifteen trucks. Two of them were used in Elk Creek’s operation. Foglio paid per for such use on a *10 Beckgren, thousand foot basis. Both the truck driver, Foglio pay driving and received their for truck from Foglio Elk Creek. testified that he had no control loading operation, over the either as to when or where the trucks were loaded. He admitted that he was re- sponsible repair for the of the and for the trucks, any furnishing equipment necessary of to their use, including safety platform top of construction a on Foglio Beckgren of the truck cab. Both were car- employees ried on Elk Creek’s books as its and Elk wages payroll withheld from Creek their the usual compensation, unemploy- deductions workmen’s compensation, security personal ment social in- charged come tax. These deductions were not back against Foglio. Briggs, employee produced
Mr. of Elk Creek a a§ witness behalf of defendant, described the trans- Ell? action between Creek and defendant as “two- system,” check lease under which “all of the drivers employees Company, they are whether are the just and the trucks driver, owner are maintained, by including Ap- the owner PTJC’s of them.” licensed, arrangement, parently not uncommon in the lum- payment industry, to avoid of was used the federal ber transportation imposed by I.R.C. tax, 4271(a) repeal §§ and 4272 That tax until its 1958. cargo payable where the owner of the uses his by Briggs own trucks or held him under a those lease. recog- the Internal Revenue had testified that Service system” company’s nized so-called “two-check lease purpose excusing a valid of it from lease for transportation tax. Foglio arrange- Elk denominated their for the use of a “lease.” However, ment trucks arrangement a lease or whether constitutes some- thing less not to be determined the name the given determining parties have to it, whether, but legal relationship of lessor-lessee was fact, only relationship legal if That was established created. passed possession the truck to Elk Creek as lessee. pass Foglio possession from to Elk This Did Creek? meaning posses- question. presents a The difficult conceptual of most troublesome areas is one sion challenge defining brought the term has the law. essays legal Pollock and other eminent Holmes, from Importance Bingham, The Nature and scholars. (1915); Legal Mich L Holmes, Rev Possession, (1881); pp Pollock and 206-246 Law, The Common *11 (1888); Jurisprudence, Wright, Salmond, Possession analysis 1930). (8th §§93-107 Ed The best seems to “possession” the conclusion that has with leave us only usefully meanings many “can be and that it de- purpose hand.” in Shartel, reference fined with (1932). L Meanings 16 Minn Rev 611 Possession, of necessary approach ques to the it is However, way. practical determining In and direct in a more tion relationship is created the a lessor-lessee whether looked to the the courts have a chattel transfer arrangement parties to the have the in which manner Generally, right dealt with it. it is said that the control the over chattel determinative. Where, as exclusive control in fact does not reside the here, question transferee the alone, must be resolved ascertaining party has that measure of control equipment regards of the significant. which the law as the more ordinarily jury,
This is the function of the guided by duty the court’s instructions. It is our to setting up guides. aid the trial court these Some of the factors to be considered in the case before us (1) employment relationship are the of the driver of (2) right the truck to Elk Creek and defendant; (3) obligation to direct the movement of the truck; pay repairs the costs of maintenance and and to necessary equipment; right (4) furnish to with- obligation (5) pay draw the truck from service; imposed overload and other fines reason of the imposed upon condition of the truck and load, fines operation (6) obligation the driver’s truck; pay (7) payment costs; fuel method for the (8) responsibility garaging truck; use of the (9) payment truck; of insurance and license (10) hauling arrangement. the duration of the fees, employment Beckgren status of was not clear. He was carried on the books Elk Creek as its em- ployee; wages he received his from Elk Creek; payroll Elk withheld all of the usual deductions, directly charged Poglio. none of which were back to Beckgren received his directions from Elk Creek as comply and where to haul. To to when with Elle Beckgren required union, with the contract was Creek’s On a union member. the other to become hand, regarded Poglio’s Beckgren employee clear employment originated respects. His all other with Poglio’s employеe Poglio to serve as he continued *12 operating. whenever Elk In other Creek was employee, if he was Elk he was a loaned words, Creek’s Beckgren’s appears employee. It relation- doable up by-product ship of Elk to set was Creek’s effort arrangement transportation an avoid Apparently effort was successful. We have tax. point simply Beckgren’s at this examined status inquiry possession part who had of the as to standpoint said that each it must be truck. From this arrangement parties had some control, Beekgren’s specific activities work Elk Creek over hauling logs, Foglio Beckgren in all other over Beckgren including employment respects purposes. other important Elk however,
It to note here, only represents Beckgren control over Creek’s right it is the truck, of control over incidental controlling possession con- is the of the truck which arrangement determining whether a lease sideration the matter from we examine When was consummated. clearly standpoint, Foglio’s control is dominant. He testified as follows: equipment it whatever isn’t true that “Q Well, you put there, on and whatever was on that truck lacking lacking equipment because from it was was you put no one else words, other on; hadn’t go any that truck was on control over what
had they? did put needed to be I whatever was on “A Well, serviceable.' put to make it the truck on your my point. wasn’t It truck, That’s “Q it?
“A Yes. you control sole one who had And were the
“Q (pause) that true? isn’t of it, you mean? do extent “A To what *13 every I to If the mean that extent. “Q Well, they your tires old on were tires. it, were Yes. “A replaced, you If to the tires were be were
“Q they the man who made the decision when were to you replaced bought be were man who tires. Eight.
“A Isn’t
“Q that true?
“A Yes. something wrong If “Q went with the motor you new or something decided whether was to fixed with it something it bе whether was to fixed with it used or whether wasn’t to be fixed at all; isn’t
that correct? right.
“A That’s platform put And “Q if there was to be a on you top you the cab, made decision and put put the one or were who it on to have it on. hired right. “A That’s platform And “Q if there wasn’t there there, platform you was no there because hadn’t decided put one on, wouldn’t that be true? Yes. “A respect “Q That would be the same with
anything that was with the water tank done, anything else, with relation the truck, it? wouldn’t (pause) “A Yes. # [*] # # servicing repairs What “Q about the and the you complete
of the truck? Did have control of that?
“A Yes. any And no “Q one else had control of it, did they? No.” “A
Foglio paid for tbe truck licenses obtained imposed paid permits. for overload- He fines PUC ing. important his control was his indicia of The most right another. He testified: to substitute one truck for you fact take the “Q isn’t it a could And any you put or that on at time,
truck off or it back you if ? could sell the truck wanted to give “A I have to Elk Well, notice, would my plans. tell them “Q How much notice? gentlemen’s agreement
“A like had Well, we things, probably a lot have been of other would couple depends It the time of of weeks. also on year that was. *14 you just “Q in mean that Well, words, other good standpoint being guy a a it, from of about just go you and decide to out sell wouldn’t something there—to haul with truck and have knowing it? them about without right. “A That’s you any obligation legal “Q But didn’t have any period for of time?
haul gentlemen’s agreement, “A we had a is all.” No, by present adjudi inquiry are aided in our We where the of the hirer of motor cases status cated controlling question on of is a issue vehicles liability. question of whether rental a motor simply a haul a lease or contract for creates vehicle presented ing cases numerous under has been are Act. of these cases reviewed Some Carriers Motor (PUC) 215 8, v. K. Or 330 Co., O. in State Transfer (1958) v. Bonesteele, and in Brown 218 Or P2d 510 (PUC) (1959). In v. K. State O. P2d 928 312, drawing problem supra, the line Transfer hauling contract was stated and a a lease between quoting from U.S. Service, LaTuff Transfer Supp F as follows: *“* * question ‘The decisive be determined any,
is how
vehicle
if
service,
much
addition
may
shipper-lessee
be rendered to the
alone,
by the owner-lessor before the borderline between
renting
leasing
private carriage
and
a truck for
is crossed and
the broad
all-inclusive field
”
transportation occupied.’
incidental to mon and carrier both com- plainly do contract, not constitute such control drivers as to direction over the trucks and ” operation make the their own.’ at 326. again: And *15 “ * * practices are natural Such concomitants any operation speci-
of motor-carrier under which equipment exclusively fied units of the are devoted to particular shipper a needs do not neces- ” sarily imply shipper.’ direction and control at 218 326. Edward Hines Lumber v.Co. United also,
See States, (7th 1957); 488 Cir Interstate F2d Commerce Com- 239 (D.C.E.D. Supp 106 F Ill v. Werner, mission right 1951). of Elk to In the instant case, designate in not, itself, etc. would load, destination, in the truck. create a interest leasehold he suffiсient applicability involving the Another line cases 4272(a)) impos (I.R.C. 4271(a), statutes of federal upon ing transportation property contract tax a inquiry. present helpful to our common carriers, equipment is sub not a lessee of those statutes Under ject called The courts have been to the tax. arrange various to determine whether these cases absolving the user ments constitute bona fide leases, have used the from the tax. In eases the courts these applied in carrier cases. as those the motor same tests Renting leading Bridge Corporation Auto The case 1949). (2nd have al We Pedrick, 174 F2d 733 Cir involving applica motor carrier luded the case operations above; Inc. the same tion of John J. Casale, subject inquiry statute in under the tax were Supp States, v. United 86 F Casale, 167, John J. Inc. (1949), 70 S Cl 599 cert. 338 US Ct den., Ct (1950). L held that lease was 94 Ed It was fide. court bona stated: taxing is not сoncerned with the “The statute arrangements if the substance of the form of the parties, agreements arrangements between the up add trans- whole, considered as when portation by person property one another plain- and we think hire, that, case, with of its customers tiff’s relations those to whom both trucks and serv- drivers, it furnished by plaintiff customers, ices to such for the com- upon, agreed substantially pensation were those engaged contract-carrier the business of * * property transporting for hire F86 Supp at 168. *16 expressed well in consideration is
The fundamental supra, Werner, v. Interstate Commerce Commission another tax case: * * * carrier status “The issue of whether * * * * * * by determined is to be how exists ordinary goes which with contract
much service * * * carriage being furnished defendant was * * in vehicles; * addition to the leased also transportation a whether on the whole being furnishing service * * * simply rendered him rather than private operation [les for the vehicles to normally in the manner see], same as would obtain equipment.” [lessee] if F were the owner of the Supp at 500. payment The manner for the use of the motor significant determining vehicle has been deemed in relationship parties. pay fact The that such payments are in ments made the same manner as for hauling favoring contract is deemed a factor a find ing a lease was not created. v. U. S. LaTuff supra. Service, On the other a “rental” hand, Transfer charge finding based a time is factor favor Bridge Renting Corporation a Auto lease. v. Pedrick, supra; Ohio River Sand Co. v. States, United 60 F (W. Ky 1945). Supp D. But see, Coast Tow Gulf ing (5th 1952). v. States, Co. United 196 F2d 944 Cir payments In the case at bar the were made on the basis of the board feet hauled, common measure payment compensating independent used truckers transporting logs for in this state. Beсkgren fact that Elk Creek carried
Foglio employees paid on its books as their sal- favoring a aries is factor construction the ar- rangement as a lease. It must be borne in how- mind, obligation pay wages that the ever, the drivers’ could simply bookkeeping adjustment be device with an paid hauling setting price to be
made logs. recognized may be It has that such a device been subterfuge hide true mere character Interstate Commerce Commission transaction. *17 supra. Werner, repair obligation to and maintain the
The owner’s regarded equipment hirer has been as evi- used Bridge of a haul rather than a lease. dence contract to Corporation Renting supra; Pedrick, Auto v. Gulf Towing supra; Casale, J. States, Co. v. United John supra; Hines States, Inc. v. Edward Lumber United supra. so States, Co. v. And with owner’s United obligation pay the fuel used in the to for vehicles Renting Bridge Corporation Pedrick, Auto v. rented, supra; v. Werner, Interstate Commerсe Commission Towing supra, supra; States, Co. v. United Coast Gulf auxiliary equipment specially or furnish to out- to (PUC) fit K. for “lessee’s” v. O. Trans- needs, State Bridge (1958); P2d Auto Co., 215 8,Or fer Renting Corporation supra, provide or to Pedrick, v. garage v. Interstate Commerce Commission facilities, Renting Corporation Bridge supra; Auto v. Werner, supra; States, Casale, John J. Inc. v. United Pedrick, garage supra, has no fact that “lessee” Interstate Commerce Commission facilities, service purchases supra. insur- Werner, that “lessor” Also Bridge Renting Corpora- Auto license fees, ance or supra; Commerce Commis- tion v. Interstate Pedrick, special hauling per- supra, or obtains Werner, sion v. (PUC) v. O. K. as needed, mits State Transfer supra. pay obligation
Foglio’s fines is a overload factor significance. It should be clear that of considerable log he trucks is assume risk, if the owner of right concomitantly to control reserve will weight right of the loads to be hauled. Such to control compatible Foglio with the idea that is more was an independent furnishing hauling a contractor service equipment. than with the idea that he was a lessor Finally, point again Foglio’s understanding we that he could substitute other trucks for those which operation. parties were used in the Elk If agree, square arrangement did so is difficult to concept possession with the aof the lessee’s lease; temporary a truck would at use a and tran- be, best, sitory possession characterizing control unlike the relationship. the usual lease or bailment judgment At the time defendant moved for notwithstanding the verdict he made an alternative mo procedure provided tion for new trial under the (8). grounds 18.140 ORS As one of for a new trial defendant recited the failure the court to in *18 jury struct the in accordance with defendant’s re quested plaintiff instructiоn that before could recover prove employer. he must that defendant anwas The jury Foglio should have been instructed that could be only held liable if it found that he were was an em ployer meaning Employers’ Liability within the of the Law, as we have described status above. Foglio
Whether was a of the lessor trucks used by employer Elk Creek not an and, under therefore, subject or ORS a contract hauler and 654.305, explained question Act as we have is a which above, by jury. judgment must be resolved The must, be reversed and therefore, the cause remanded a for new trial. dissenting.
PERRY, J., majority opinion The in this it seems case, to me, Employers’ Liability misconstrues the Law and thus by upon contemplated places duty a defendant this enactment.
The facts this case disclose that the defendant any charge loading was not in manner in of the loading of trucks man- and that the and the trucks, entirely ner in it was done under the con- Logging Company. of the Elk Creek trol Whether they were to be loaded in the manner in which trucks were or some other manner and devices loaded require plaintiff that did not to be the truck were within the Elk matters rested discretion majority Logging Company. But the read would Liability duty upon Employers’ a Law into operator provide place owner and of the truck to a safe plaintiff Logging jump in for the case Com- loading pany’s developed method the truck trouble. Liability language Employers’ no in the I can find any prior interpretation nor of the Act, which Law, justify such a conclusion. would my compensation opinion, the use of workmen’s In having “persons charge responsi- of, cases define any Em- words are used work,” ble as those for, any way Liability ployers’ used cannot in be Law, Liability Employers’ gov- analogy. Law duty implies if not which, erned tort law liability. rights performed, Whereаs, creates a injured employe Compensa- under the Workmen’s v. Kozer, et al. contract, tion Act arises out of West under the an in- 206 P contract against employe right jured of action denied commingling party em- if is a third there covered *19 employers premises ployes said to be of different employers’ joint supervision and control. under interpreting Certainly, between the in contract employe injured employer as created and the
563 Compensation quite Act it becomes clear Workmen’s applies employer that the contract whether one has authority to direct the actions of another covered em ployer Brown, or v. not, 300, 310, McGuire 217 Or 342 “only P2d or whether one the covered em 774, may ployers be said to in actual control of be the site way.” Lininger, where the work is under Pruett v. 224 Or 356 P2d 551. 614, 547, Constructive control is all “* * * required, that is All i.e., that is essential they occupy premises perform is that component parts the same general undertaking.”
aof Inwall v. Transpacific Lumber 108 P2d 560, 571, Or approved City in Hensler 522, Portland, Or P2d 28, 34, 318 313.
In the before case are however, we concerned us, specific employer with the duties an owes to the em- ploye Employers’ of another within the terms of the Liability majority Law. The state “The Act cannot apply ‘charge unless some sense the defendant has ‘responsible of’ or is for’ the work out of which the injury participate arose. The defendant must in the enterprise way. problem in some The difficult is to ” by ‘participation.’ determine what is meant “participa-
It seems me the use of the word general meaning, tion,” which is in its is, as used majority, plain, spe- a misnomer and tortures the language participation cific the statute. The duty liability pointed creates the and thus the out specifically being “chargе therein and that of” “responsible being for” the work carried on. employer duty
It is hornbook law that has a employes provide working place with a safe and safe appliances duty tools and cannot be delegated. avoided or Celorie v. Bros., Roberts Inc., Synnes P2d 416; Warner v. et al., *20 564
114
P
P
Under duty employe providing not owes to his own only duty provide place also the to a safe but work, protective measures. him with safe tools and other Again duty to see 654.310. 654.305, ORS ORS upon “having charge of falls those this is done particular work.” OES 654.315. “persons again refers to of the Act 654.305
ORS responsible any having charge work involv for, orof * * (Italics supplied) danger ing or This risk generally referred as the “and which is statute plaintiff generally” which must clause, recovery, right ground to seek a reads as follows: his “Generally, contractors or subcon- all owners, persons charge having or of, and other tractors danger any responsible involving or work risk for, every public, employes or the shall use device, practicable precaution it is which use care and safety protection of life and limb, for necessity preserving only for ef- limited ficiency appa- machine structure, or other regard or without to the addi- device, ratus safety appliance material or of suitable tional cost and devices.” “having charge responsible
The statement of, meaning. certainly It does is restrictive for,” go far include one who an owner or con- so as to only end is in the result of work tractor interested responsible. clearly This is which another Synnes pointed al., ont in thе et case of Warner opinion. supra, majority in the not mentioned employe independent an In that case contractor injured by using rope defective furnished sought, owner. He therefore, to hold the owner Liability Employers’ under the terms of the liable *21 complaint alleged: Law. The negli- “That defendants and each of them were gent place furnishing plaintiff in herein the safe requiring allowing in to work and and the improper rope
use of an
and unsuitable
in the con-
failing
struction of said
and
scaffold,
to use
every
precaution
protection
device and
for the
of
* *
plaintiff
114 Or
455.
451,
equal
is
While “owner” mentioned with
force with
persons
denying recovery
other
in the Act in
under
the court
Act,
said:
* *
“®
making
The reason for
the contractor
responsible
exonerating
alone
and
the owner with
whom he contracts is that
the owner is not the
*' * *”
person
charge
(Italics
the work.
supрlied)
411, P 331, Lumber Rorvik v. North Pac. and stated: instrumentality of the “In all eases the those injury company caused the
defendant
active
directly
plaintiff
operation
affected
* *
114 Or
463.
in that case
сourt stated
Prom all this
following
the rule
that for
cited,
in the
cases
is
shown
independent
under the
an
contractor
be held liable
authority to direct
Act
terms
he must have
being
carried out,
the manner in which the work is
only
employe
when
of another
becomes liable
instrumentality
using
he
in motion factors
some
is
sets
injury
person.
which result in
that third
speaking
Employers’
on
Mr.
Justice
McBride,
Liability
plain
of the law to
intent
said: “The
Act,
remedy
give
injured employee
against his
em
Boyce,
*22
ployer.”
Morgan,
66
Lawton v.
Fliedner &
Or
is the
This was and
131 P
“The makes party action to vision for a so-called third similar Compensation Act. that found the Workmen’s danger only risk to ‘the It is of reference (ORS permits public’ 654.305) action which such an consistently brought to be at all. This cоurt has every public held that is not of the member protected. only employ- is those is thus ment or duties It whose machinery require to about them be employer his of other than own or whose duties
567
may
person
expose
require such
in or
himself
hazardous conditions or structures
such
about
other
scribed
prohibited
employer
which are
or circum-
by
Act. It
a
or
must be
hazard
risk
employer
permits
has
which the
created
to exist
employer
and which within the control
sought to be held. There must
a com-
likewise be
mingling
duty
injured person
of function or
of the
employes
employer.
and the
the acts or
of the
In other words,
employer
give
omission of
which
rise
injured
a cause
of action in behalf of an
member
public requires
participa-
of the
active and direct
part
employer. Turnidge
tion on
of the
v.
Thompson,
637,
89
P
Or
Rorvik v.
281;
North
Pac. Lumber Co., 99 Or
190 P
58,
P
331,
163;
v. Holman
Co., 130
Or
P280
Drefs
Transfer
Myers
505;
v.
Staub,
Or
part operation Logging over-all of the Elk Company. necessary plaintiff Therefore, it for the go duty further and show violation toward plaintiff required by performed the act to be independent duty contractor. This has been spelled Turnidge out Thompson, this court in supra, opinion analyzed in Rorvik v. North supra, Pac. Lumber Co., 58, 70, stated as *23 follows:
“* * * interpretation Prom the lucid in that Thompson] [Turnidge in other cases v.
case the deduce the rule that mentioned, we hereafter Liability Employers’ to extend Act does not public general protection but of the such, employees protection of the to it particular machinery its does extend dangerous person owning operating or employments, engaged or in hazardous corpora- persons employees other to other or of require be or whose duties them to tions lawful machinery, expose or themselves to work about such machinery appliances or use the hazards of (Italics supplied) the owner thereof.” involving against in- All of the cases an action an language dependent or contractor contain this same language import. analysis In of our cases, of similar interpreted grant a to cause where the act has been always employe of action has to another, machinery held defendant was bеen was the active cause defective, defective because and, following injury. This is disclosed in the cases grant interpreted of ac- the act was to cause where employe tion which arises reason another danger of the reference in the act risk public. Clayton Enterprise Co., Electric
In 82 Or party held liable to the em- 161 P the third instrumentality operated ploye of another because not so and under the control the defendant was employe guarded that when the came contact with instrumentality instrumentality (electricity) injury. caused his supra, Rorvik v. North Pac. Lumber
In equipped operating on were not rails, defendant’s cars, they so could be held under control with brakes getting of control the death another’s on out caused workman. *24 McKay Bldg. Co., In Materials Pacific delivering 68 P2d the who were 127, defendants, safety a a
cement to used defective chain contractor, holding on the tank the concrete so when the that de- attempted empty tipping fendant to the tank the upon plaintiff. chain and the tank broke fell the Supple In Coomer v. Investment Or 224, protruding P274 the defendant left nails they caught injury structure so that a chain and caused employe to the of another. requires
It, therefore, seems to me that act prosecuting conjunc- who one, is work at or near or in safeguard equipment tion with to another, his so as injury employes not cause to the of the other con- safeguarded equip- tractor. But when another has his equipment activating that ment, so itself is injury employe cause of an he has another, requirements met the of the act. required way,
Stated in another one is not to use every precaution safety care and device, for the employes respect of another unless the failure in this permits machinery equipment under his control to actively passively injury. and not cause
To hold it seems to otherwise, me, would extend beyond any proper interpretation. far the act For in- if we assume a stance, state of facts which show that independent in this case the defendant anis contractor furnishing loading logs, trucks for the and an em- ploye Logging Company required of the Elk is guiding logs to stand the truck to assist in so they proper position will be that lowered in during operation employe truck; compelled jump log toward the truck, because a has slipped, and his head strikes side of the truck in- juring practical that it is further shown it him; along protective
place truck, the side of the material interfering operation, the truck’s with without interpreta- injury. prevent Under the such would by majority, placed in- such act thereon tion of the pro- jured of another would be within workman tection of the act. judgment the trial court. affirm
I would in this dis- and Warner concur Justices Kossman *25 sent.