Ballou v. State Indus. Acc. Commission

• Decision Date: 16 July 1958
• Citation: 214 Or. 123,328 P.2d 137
• Parties: Marguerite BALLOU, for herself and for Hofton L. Ballou, a minor, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Respondent.
• Court: Oregon Supreme Court

Page 137

328 P.2d 137

214 Or. 123

Marguerite BALLOU, for herself and for Hofton L. Ballou, a minor, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon,

Respondent.

Supreme Court of Oregon.

Argued and Submitted June 12, 1958.

Decided July 16, 1958.

Philip A. Levin and Emerson U. Sims, Portland, for appellant. With them on the brief was A. L. Casciato, Portland.

T. Walter Gillard, Asst. Atty. Gen., for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

Before PERRY, C. J., and ROSSMAN, LUSK, WARNER, McALLISTER and SLOAN, JJ.

LUSK, Justice.

This is an appeal by the plaintiff from a judgment n. o. v. for the defendant, State Industrial Accident Commission, in an action brought for the purpose of reversing the decision of the commission rejecting plaintiff's claim for compensation for the accidental death of her husband, Billy D. Ballou.

At the time of his fatal injury on January 4, 1954, and for approximately a year prior thereto the deceased earned his living hauling lumber in trucks which he was buying on conditional sales contract from Bern O. Bliss, who was engaged in business under the name of Bliss Log & Lumber Co. of Tillamook, Oregon. On January 4, 1954, the deceased went to the yard of Buehner Lumber Co., hereinafter called Buehner, in Tillamook, to pick up a load of lumber. He was accidentally killed in the course of the loading operation. His widow's claim for compensation for herself and minor child was, as stated, rejected by the commission.

The complaint alleged that Ballou, on the day that he met his death, was employed by Bliss and was also in the employ of Buehner 'as a loaned servant.' The court submitted to the jury two interrogatories, the answers to which were returned as a special verdict, as follows:

'Interrogatory No. 1: Was the decedent, Billy D. Ballou, an employee or an independent contractor at the time of his fatal accident on January 4, 1954?

'Answer: Employee

(If your answer is 'Independent contractor' you will not answer the following question:)

'Interrogatory No. 2: By whom was Billy D. Ballou employed at the time of his fatal accident?

'Answer: Bliss Log & Lumber Co.

(Buehner Lumber Company or Bliss Log & Lumber Company.)'

Both Bliss and Buehner were under the Workmen's Compensation Law.

It is a close question whether there is any evidence that the deceased was an employee of Bliss, and there is no evidence that he was an employee of Buehner. The 'loaned servant' theory has been abandoned in this court, and properly so as it has no support whatever in the evidence. In order for the plaintiff to recover she has the burden of showing not only that the deceased was an employee of Bliss but that his death was the result of an accidental injury 'arising out of and in the course of his employment.' ORS 656.152. As to the latter essential element of plaintiff's case, it is stated in her brief that 'plaintiff frankly admits that she must rely upon one piece of evidence, to wit, Exhibit 1.' This exhibit is 'A Report of Accident by Employer' (the accident involved in this case) executed and filed with the commission under date of January 6, 1954, by Bern O. Bliss as owner of Bliss Log & Lumber Co. on a form provided by the commission. The report states that Ballou was in the employ...