Bigby v. Pelican Bay Lbr. Co.
| Decision Date | 21 March 1944 |
| Citation | 173 Or. 682,147 P.2d 199 |
| Parties | BIGBY <I>v.</I> PELICAN BAY LUMBER CO. |
| Court | Oregon Supreme Court |
Application of provisions of workmen's compensation acts that
compensation for specific injury or injuries under the act shall
be exclusive of all other compensation, note, 129 A.L.R. 663
See, also, 28 R.C.L. 829
71 C.J., Workmen's Compensation, § 1488
Before BAILEY, Chief Justice, and BELT, ROSSMAN, LUSK and HAY, Associate Justices.
Appeal from Circuit Court, Klamath County.
Action by Lettie L. Bigby against Pelican Bay Lumber Company for damages for the death of plaintiff's son. From a judgment for defendant, plaintiff appeals.
AFFIRMED.
Fred O. Small, of Klamath Falls, for appellant.
Richard B. Maxwell, of Klamath Falls, and C.L. Marsters, Assistant Attorney General (George Neuner, Attorney General, and C.S. Emmons, Assistant Attorney General, on the brief), for respondent.
This action was brought by the plaintiff, a resident of Klamath county, Oregon, to recover damages from the defendant for the death of her son, George S. Bigby, which resulted from injuries suffered by him while employed by the defendant.
The complaint is in the ordinary form customarily employed in personal injury actions. In it the plaintiff alleges that on December 12, 1942, her son, while employed by the defendant in its sawmill in Klamath county, Oregon, was severely injured, due to the carelessness and negligence of the defendant corporation in failing to comply with the provisions of the employers' liability act of the state of Oregon in the operation of its sawmill; that as the result of such injuries he died on December 25, 1942; and that at the time of his death George S. Bigby was twenty-three years of age, was unmarried and left no children or lineal heirs surviving him. The plaintiff asked for judgment against the defendant in the sum of $25,000.
When the complaint was filed against the defendant employer, the state industrial accident commission requested the attorney general, in pursuance of § 102-1780, O.C.L.A., to appear in the case and defend the employer. The attorney general so did, in conjunction with the defendant's private attorney.
The defendant filed an answer in which it denied all the allegations of the complaint "except as admitted, explained or qualified" in its further and separate answer and defense. In its further answer the defendant avers that at all times therein mentioned it was "engaged in the lumbering business in Klamath Falls, Oregon, an occupation defined as hazardous under the provisions of the workmen's compensation law of Oregon"; that the defendant has at all times complied with the requirements of that law; and that at the time the accident occurred the defendant and the decedent were subject to its provisions. The defendant further alleges that after suffering injuries and prior to his death, George S. Bigby had filed with the state industrial accident commission a claim for compensation on account of such injuries; and that thereafter, on January 20, 1943, the commission made and entered "an order allowing the said George S. Bigby compensation for temporary total disability from the date of his accident to the date of his death".
To that affirmative answer the plaintiff filed a general demurrer, on the ground that the answer did not state facts sufficient to constitute a defense to the plaintiff's complaint. The demurrer was over-ruled by the circuit court, and upon the failure of the plaintiff to plead further, judgment was entered on the pleadings, in favor of the defendant. From this judgment the plaintiff appeals.
The question here presented is whether or not an employer who is subject to the workmen's compensation act of the state of Oregon (§§ 102-1701 to and including 102-1785, O.C.L.A.) and has fully complied with its provisions, is relieved from all personal liability on account of the death or injury of an employee subject to the act, arising out of and in the course of the latter's employment.
Section 102-1752, O.C.L.A., provides in part as follows:
"Every workman subject to this act while employed by an employer subject to this act who, while so employed, sustains personal injury by accident arising out of and in the course of his employment and resulting in his disability, or the beneficiaries, as hereinafter defined, of such workman, in case the injury results in death, shall be entitled to receive from the industrial accident fund thereby created the sum or sums hereinafter specified and the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury or death, except as hereinafter specifically provided."
The word "beneficiary" is defined in § 102-1702, O.C.L.A., to mean: "an injured workman, and the husband, wife, child or dependent of a workman, who shall be entitled to receive payments under this act." By the same section, "dependent" is defined as "any of the following-named relatives of a workman whose death results from any injury and who leaves surviving no widow, widower or child under the age of 18 years, viz.: Invalid child over the age of 18 years, father, mother, grandfather, grandmother, stepfather, stepmother, grandson, granddaughter, brother, sister, half sister, half brother, niece or nephew, who at the time of the accident are dependent in whole or in part for their support upon the earnings of the workman."
The plaintiff contends that her deceased son left surviving him no beneficiary within the meaning of the workmen's compensation act, and that consequently there was no one entitled to compensation on account of his death, out of the industrial accident fund. She asserts that because she was not dependent for her support in whole or in part upon the earnings of her son she is not a beneficiary within the meaning of the workmen's compensation law and is not precluded from maintaining this action against his employer under the employers' liability act. Her argument is that only those entitled to the compensation provided by the workmen's compensation law are precluded from making claims against the employer on account of the death or injury of a workman. She attempts to fortify her position by directing attention to the employers' liability act of this state (§§ 102-1601 to and including 102-1606, O.C.L.A.), and especially § 102-1604, O.C.L.A., which reads as follows:
"If there shall be any loss of life by reason of the neglects or failures or violations of the provisions of this act by any owner, contractor or sub-contractor or any person liable under the provisions of this act, the surviving widow or husband and children and adopted children of the person so killed and, if none, then his or her lineal heirs and, if none, then the mother or father, as the case may be, shall have a right of action without any limit as to the amount of damages which may be awarded; provided, that if none of the persons entitled to maintain such action reside within the state of Oregon, then the executor or administrator of such deceased person shall have the right to maintain such action for their respective benefits and in the order above named."
The employers' liability act was proposed by initiative petition and was approved by a majority of the votes cast thereon at the general election of November 8, 1910. The workmen's compensation act did not become a law until it was referred to the voters of this state and...
To continue reading
Request your trial
-
Smothers v. Gresham Transfer, Inc.
... ... See Bigby v. Pelican Bay Lbr. Co., 173 Or. 682, 692, 147 P.2d 199 (1944) (so stating). The Workmen's ... ...
-
Holden v. Pioneer Broadcasting Co.
...State Industrial Acc.Comm., 78 Or. 503, 154 P. 106; Atkinson v. Fairview Dairy Farms, 190 Or. 1, 222 P.2d 732; and Bigby v. Pelican Bay Lumber Co., 173 Or. 682, 147 P.2d 199 (workmen's compensation); Magierowski v. Buckley, 39 N.J.Super 534, 121 A.2d 749 (New Jersey heart-balm But here the ......
-
Bakker v. Baza'r, Inc.
...law was to protect both employees and employers against 'the expense and delay incident to litigation.' Bibby v. Pelican Bay Lbr. Co., 173 Or. 682, 692, 147 P.2d 199, 203 (1944), citing ORS 656.004. Indeed, an equally important purpose of this Act is to minimize the cost to the public of ma......
-
Errand v. Cascade Steel Rolling Mills, Inc.
...exclusive remedy except in the enumerated situations mentioned in the statute." (Emphasis added.) 2 See also Bigby v. Pelican Bay Lbr. Co., 173 Or. 682, 689, 147 P.2d 199 (1944) ("When a workman has become subject to the act he can not recover from his employer for injuries sustained by him......