Claussen v. Ireland

• Decision Date: 29 April 1959
• Citation: 338 P.2d 676,216 Or. 289
• Parties: Marvin R. CLAUSSEN, Appellant, v. Thomas Henry IRELAND, Respondent.
• Court: Oregon Supreme Court

Page 676

338 P.2d 676

216 Or. 289

Marvin R. CLAUSSEN, Appellant, v. Thomas Henry IRELAND, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted April 8, 1959.

Decided April 29, 1959.

Sidney I. Lezak, Portland, for appellant. With him on the brief were Bailey, Lezak, Swink & Gates, Portland.

Eldon F. Caley, Roseburg, for respondent. With him on the brief were Long, Neuner & Davis and Donald A. Dole, Roseburg.

Donald S. Richardson, Frank H. Pozzi, Wesley A. Franklin, W. M. Dale, Jr., Nels Peterson, Burl L. Green and Thomas H. Tongue, III, Portland, amici curiae.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL, and CRAWFORD, JJ.

CRAWFORD, Justice pro tem.

This is a third-party action involving application of ORS 656.154. Plaintiff was an employee of Upco Logging Company. Upco had a contract with Umpqua Plywood Company for falling, bucking, yarding, loading and transporting logs to certain of Umpqua's mills. Defendant subcontracted with Upco to haul logs from Umpqua's lands to Umpqua's mills. Haskins was employed by Ireland as a log truck driver. In the course of the loading operation defendant's truck, driven by his employee Haskins, was moved against and over plaintiff. Plaintiff sued and a supplemental answer brought in the Workmen's Compensation Act which concededly covered all interested parties. The trial court, by virtue of ORS 656.324(3) determined as a matter of law:

'That at the time of the accident and injuries, the premises where the accident occurred were under the joint supervision and control of Upco Logging Co., and the defendant; and the plaintiff and his employer and the defendant and his employees were, at the time of said accident and injuries, engaged in the furtherance of a common enterprise or related purposes in operation, that is, the loading and securing of logs upon trucks for transportation to mills in the area of Myrtle Creek, Oregon; * * *.' (Conclusion of Law No. 1.)

From a judgment dismissing the complaint plaintiff appeals.

ORS 656.154 reads:

'(1) If the injury to a workman is due to the negligence or wrong of a third person not in the same employ, the injured workman, or if death results from the injury, his widow, children or other dependents, as the case may be, may elect to seek a remedy against such third person. However, no action shall be brought against any such third person if he or his workman causing the injury was, at the time of the injury, on premises over which he had joint supervision and control with the employer of the injured workman and was an employer subject to ORS 656.002 to 656.590.

'(2) As used in this section, 'premises' means the place where the employer, or his workman causing the injury, and the employer of the injured workman, are engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in operation.'

The trial court entered 25 comprehensive findings, the only exception taken being to No. 25 which is identical with conclusion of law No. 1, quoted above. These findings are accepted as the facts of the case, the only questions presented being raised by two assignments of error. First, the court erred in concluding that defendant exercised joint supervision and control with plaintiff's employer over the premises on which the accident occurred at the time of the injury. Second, the court erred in concluding that the plaintiff and his employer and the defendant and his employee were engaged in the furtherance of common enterprise or the accomplishment of the same or related purposes in operation.

From the findings we extract the following: Umpqua was engaged in the manufacture of lumber and plywood at mills and was the owner and in possession of land and timber thereon. Upco assigned the trucks used. Plaintiff, a second loader, assisted in loading logs upon the trucks for removal to the mills. Plaintiff was injured at the log landing while engaged in loading defendant's truck and trailer, driven by Haskins. At the time, Upco employed eight men in yarding the logs, six men in decking, one hook tender, one donkey puncher, one chaser, one second donkey puncher (loading engineer), one first loader and one second loader, the plaintiff, 'who worked upon the truck directing the placement of the logs thereon and the movement of the trucks, and who removed the tongs when the logs were properly stituated.' When the trailer cleared the truck on plaintiff's signal, Haskins drove the truck forward and the trailer was lowered to the ground by the loading engineer. Plaintiff signaled Haskins to move the truck until the trailer was directly under the loader to avoid damage to the truck. Plaintiff checked the automatic locking device. Haskins alighted from the truck, connected the brake air hose and water lines between truck and trailer, and adjusted the weight scales. Plaintiff and the first loader set the cheese blocks. Plaintiff signaled the driver forward or backward to adjust to the length of the logs. The first loader returned to the log deck, plaintiff remained on the ground, and Haskins returned to the cab. During the loading operation the logs were placed upon the truck as follows:

'The loading engineer swung the boom of the heel boom loader over the log deck where the first loader attached the tongs to the log he had selected for loading. Upon a signal from the first loader, the loading engineer lifted the log into the air and swung the same into position over the truck. Plaintiff signalled to Haskins by a pre-arranged set of signals directing him to move the truck forward and backward in order to receive the log. When the truck was maneuvered into proper position under the direction of plaintiff, he then signalled the loading engineer and the log was lowered onto the truck. Then the log came to rest. Plaintiff then removed the tongs and signalled to the loading engineer who swung the boom back to the log deck for another log. Plaintiff signalled to Haskins to move the truck forward so that it was out of the way of the next log to be loaded, and thus be out of danger.'

Plaintiff performed certain duties on the ground and certain duties from the truck, signaling truck movements. Plaintiff was injured when he climbed down from the truck in the loading operation, incident to placing a binder chain, commonly known as a 'gut wrapper', around the logs as a safety measure to protect the men working and the public on the highway. The truck moved forward and struck him.

Had the accident not occurred, the balance of the loading operation would have been as follows: Haskins would alight from the cab, and assisted by plaintiff, affix the gut wrapper. This required two men. Plaintiff would stand on top of the truck, the driver remaining on the ground. When binder chains were necessary, plaintiff would assist Haskins. Haskins corrected any unsafe or illegal loading. Plaintiff and Haskins cooperated to load safely and legally and expedite the logging operation.

Plaintiff relies strongly on Johnson v. Timber Structures, Inc., 203 Or. 670, 281 P.2d 723, 725, and argues that the instant case is controlled by it. Since the Johnson case looms so large in this controversy, we shall consider it first. The essential facts, as stipulated, are these:

Summarizing plaintiff's duties:

1. To meet the trucks.

2. To inspect the sawdust.

3. Accept same if requirements of Volney Felt Mills met.

4. Direct drivers where to dump.

5. Sign receipt for same.

6. Remove sawdust with a sawdust fork.

His duties required him to be upon the premises and about the trucks.

Defendant sold and delivered sawdust to the premises; remained inactive while plaintiff inspected and accepted or rejected; driver received receipt; dumped where told; departed.

Latourette, J., held there is 'not one iota of evidence' indicating defendant or its driver had any control and supervision of the premises. (Italics ours.) He distinguishes Brown v. Underwood Lumber Co., 172 Or. 261, 141 P.2d 527; Atkinson v. Fairview Dairy Farms, 190 Or. 1, 222 P.2d 732; Inwall v. Transpacific Lumber Co., 165 Or. 560, 108 P.2d 522. Tooze, J., (Warner, C. J., Lusk and Perry, Justices, concurring) wrote a specially concurring opinion which is the basis for plaintiff's position and to which a large part of his argument is addressed. A quotation from the Johnson case aids in understanding the distinction we draw between that case and the present one. It reads as follows:

'Plaintiff's employer was engaged in the manufacture of roofing felt. The defendant produced sawdust, a material used in the production of roofing felt. Defendant's only connection with the business of plaintiff's employer was to sell and deliver this raw material. In a remote way defendant participated in the business conducted by plaintiff's employer; that is, it furnished for a price the sawdust necessary for the manufacture of the roofing felt. However, plaintiff's employer and defendant were not engaged in the furtherance of an enterprise...