Bibby v. Hillstrom
| Decision Date | 05 November 1971 |
| Citation | 260 Or. 367,490 P.2d 161 |
| Parties | Harriet BIBBY, Appellant, v. Rudolph HILLSTROM, Respondent. |
| Court | Oregon Supreme Court |
Raymond J. Conboy, Portland, argued the cause for appellant. With him on the brief were Pozzi, Wilson & Atchison, and Brian L. Welch, Portland.
Cameron C. Thom, Coos Bay, argued the cause for respondent. With him on the brief were McInturff, Thom, Collver & Rossi, Coos Bay.
Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.
This is an action for damages for injuries allegedly resulting from an assault and battery. Plaintiff appeals from a judgment entered on a jury verdict for defendant.
Plaintiff and her husband were employed by defendant to manage an apartment house. An altercation between plaitniff and defendant concerning the affairs of the apartment house resulted in physical conflict. The extent of such conflict is in dispute.
Plaintiff was awarded workmen's compensation benefits for her claimed injuries. Defendant pleaded as an affirmative defense to the present action that plaintiff was entitled to receive such benefits and the she had filed a claim with the State Accident Insurance Fund, which had accepted the claim and paid all medical expenses incurred as well as $669.94 in compensation. In addition, defendant pleaded that plaintiff's sole remedy was the receipt of the benefits to which she was entitled under the Workmen's Compensation Act.
Plaitniff filed both a motion to strike and a demurrer to this affirmative defense. The trial court ruled as follows:
'That the Defendant is entitled to plead the coverage of the Workmen's Compensation Act as part of its defense to Plaintiff's cause, but that the Defendant may not plead as set off payments received by the Plaintiff from SAIF * * *.'
In conformance with such ruling, defendant filed an amended affirmative defense identical to the one against which the motion and demurrer had been filed, except that the allegations concerning the payment of the medical expenses and compensation were deleted. The allegations remained which concerned plaintiff's filing of the claim, its acceptance by SAIF, and her sole remedy being the receipt of the benefits under the Act.
In its preliminary statement to the jury at the commencement of the trial, the court told the jurors of defendant's defense of plaintiff's coverage under the Act and then, during the trial, permitted defendant to cross-examine plaintiff minutely concerning her application for benefits under the Act and their allowance by the Fund. All of this was done over plaintiff's objection.
The sole question on appeal is the propriety of allowing defendant to bring before the jury plaintiff's claim for workmen's compensation. Plaintiff contends the jury's decision concerning defendant's liability was unnecessarily prejudiced by the use of such procedure and the trial court erred thereby. A resolution of this question requires an interpretation of ORS 656.156(2) and a determination of the proper procedure to be followed in carrying out its provisions. The statute provides:
'(2) If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the workman, the widow, widower, child or dependent of the workman may take under ORS 656.001 to 656.794, and also have cause for action against the employer, as if such statutes had not been passed, For damages over the amount payable under those statutes.' (Emphasis added.)
The statute reduces the employer's responsibility for his intentional tort by the amount of the benefits paid to the workman under the Act. Hence, it is necessary to determine whether the workman is entitled to recover and, if he is, to determine the total amount of his damages, and then to deduct from them the benefits he receives under the Act.
No procedure for securing the offset is established by the Act. The only case which demonstrates how the matter has been handled previously is Weis v. Allen, 147 Or. 670, 35 P.2d 478 (1934)...
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...to bring a civil action against a third party for work-connected injuries. 6 It is also in accord with our decision in Bibby v. Hillstrom, 260 Or. 367, 490 P.2d 161 (1971). In Bibby we held that, in order to avoid prejudice to the plaintiff's case in a civil action for assault and battery, ......
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Mooney v. Eastern Associated Coal Corp.
...jury's verdict. This approach has been taken by the only jurisdiction that appears to have decided the question. In Bibby v. Hillstrom, 260 Or. 367, 490 P.2d 161 (1971), the Supreme Court of Oregon concluded that a provision of that state's workmen's compensation law virtually identical to ......
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Walsh v. Spalding & Son, Inc.
...the jury could not be informed that United Grocers had paid workers' compensation benefits to plaintiff, see, e.g., Bibby v. Hillstrom, 260 Or. 367, 490 P.2d 161 (1971), the necessarily unadorned reference to United Grocers' "immunity" was especially 8. Lyons v. Walsh & Sons Trucking Co., L......
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...issues raised by the supplemental answer.” Cornelison v. Seabold, 254 Or. 401, 404, 460 P.2d 1009 (1969) ; see also Bibby v. Hillstrom, 260 Or. 367, 372, 490 P.2d 161 (1971) (any claim of offset for workers' compensation benefits paid to plaintiff must be determined by the trial court with ......