CALINE
v.
MAEDE ET AL, STATE INDUSTRIAL ACCIDENT COMMISSION

Adelbert G. Clostermann, Portland, argued the cause and filed a brief for appellant.

George S. Woodworth, Assistant Attorney General, Portland, argued the cause for respondent. On the brief were Robert Y. Thornton, Attorney General, and Ray H. Lafky, Assistant Attorney General, Salem.

Before McALLISTER, Chief Justice, and PERRY, *240 SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.

AFFIRMED.

DENECKE, J.

Plaintiff brought this action for damages for personal injuries against his employer. The only question is whether the employer's continued failure to rectify conditions which twice previously injured plaintiff constitutes "the deliberate intention * * * to produce such injury." ORS 656.156(2). If it does, plaintiff can maintain this action; if not, plaintiff's only remedy is Workmen's Compensation benefits.

Upon the authority of Jenkins v. Carman Mfg. Co., 79 Or 448, 155 P. 703 (1916), and Heikkila v. Ewen Transfer Co., 135 Or 631, 297 P. 373 (1931), the trial court's ruling that this does not constitute "deliberate intention" is affirmed.