Dewey v. A. F. Klaveness & Co., A/S

• Decision Date: 13 March 1963
• Citation: 379 P.2d 560,233 Or. 515
• Parties: John DEWEY, Respondent, v. A. F. KLAVENESS & CO., A/S, Appellant.
• Court: Oregon Supreme Court

Page 560

379 P.2d 560

233 Or. 515

John DEWEY, Respondent, v. A. F. KLAVENESS & CO., A/S, Appellant.

Supreme Court of Oregon, In Banc.

Argued before Department 2 and Submitted Feb. 9, 1962.

Reargued July 2, 1962 and Feb. 6, 1963.

Decided March 13, 1963.

John G. Holden and Erskine B. Wood, Portland, argued and reargued the cause for appellant. With them on the briefs were Wood, Wood, Tatum, Mosser & Brooke, Portland.

Donald Atchison, Portland, argued the cause for respondent, and reargued on July 2, 1962; Philip A. Levin, Portland, reargued the cause on February 6, 1963. With Levin on the briefs were Pozzi, Levin & Wilson, Portland.

James H. Clarke and William M. Dale, Jr., Portland, each filed a brief as amicus curiae.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

SLOAN, Justice.

Plaintiff, a longshoreman, was injured while working aboard the vessel Bougainville. He brought this action against the owner of the vessel. The case was tried to a jury. However, both parties moved for a directed verdict. The court dismissed the jury and entered findings and judgment in favor of plaintiff. Defendant appeals.

The appeal has been argued three times. The last argument was based on the questions discussed in the concurring opinion filed herewith. As there indicated, the court has also had the advantage of well prepared briefs of amici curiae. It requires no ultra-sensory preception to know that this case has been the subject of more than a considerable amount of discussion within this court.

We have taken the statement of facts as they were tersely stated in appellant's brief:

'Plaintiff is a longshoreman. Defendant is the owner and operator of the motor vessel BOUGAINVILLE. On January 17, 1960, the ship was docked in Portland taking on cargo. Brady-Hamilton Stevedore Company was acting as an independent contracting master stevedore and was the employer of plaintiff and all of his co-workers, and was in exclusive control of the loading.

'Plaintiff and his co-workers were storing heavy rolls of paper in one of the vessel's holds. The rolls weighed about 1800 pounds, and were moved into position by means of a three-wheeled hand truck.

'The paper was being stowed over a cargo of bagged flour. A flooring of dunnage had been placed over the flour by the longshoremen. On top of the dunnage the longshoremen placed 'walking boards' (sheets of plywood 4-feet square) so as to form a flooring or runway over which to roll the hand truck.

'As plaintiff and three of his co-workers were rolling a loaded hand truck over this flooring, the left front wheel of the hand truck broke through the walking boards and the dunnage underneath. No one was hurt by this.

'Plaintiff and his fellow longshoremen surveyed the situation and discussed possible means of getting the hand truck out of the hole. Five to ten minutes later they decided to manually lift the hand truck and its load of paper out of the hole.

'While lifting on the handle of the hand truck plaintiff strained the muscles in his rib cage.

'There were a total of eight longshoremen working in the area. After plaintiff was injured the hand truck and its load was removed from the hole by using more of the longshoremen to lift on the truck together with longshoremen pulling on a rope which was tied to the handle of the hand truck.

'The court below found that the flooring was insufficient (unseaworthy) and that defendant was negligent in this respect, and concluded that this was a proximate cause of plaintiff's injury.'

Defendant concedes that the vessel was unseaworthy. The only assignment brought here was that the court erred in finding that '* * * the insufficient flooring was a proximate cause of plaintiff's injury.'

The problem that has divided the court is whether this, and similar cases, should be decided within the more traditional concepts of proximate cause or should the court adopt the ideas expressed in the concurring opinion. Some of the majority believe that the doctrine of proximate cause, as it has become established in this state, is preferable to the theories expressed in the concurring opinion. Others of the majority believe that such a transition, if it is wise to be made at all and if it has enduring merit, should be woven into the trial practice by the evolutionary process that has historically prevented atrophy in the common law. But regardless of reason, the majority prefer to decide this case upon the issues presented to the trial court and in the original arguments here.

Defendant primarily rests its case on Zickrick v. Cooke et al., 1953, 197 Or. 87, 252 P.2d 185. Defendant claims that Zickrick and this case are undistinguishable. We do not agree. In the Zickrick case the defendant's negligence consisted of the failure to use sufficient binder chains to hold a load of logs on a trailer. After the load had been hauled a short distance from the loading area the logs broke loose from the bindings and caused the trailer to be upset. The plaintiff, Zickrick, came upon the scene and, as a volunteer, endeavored to help relieve the situation. In the process he was injured. Defendant, in the instant case, relies on that part of the Zickrick opinion that holds that the negligence of the defendant Cooke, in that case, had come to rest before Zickrick became an actor. What this defendant overlooks is that Zickrick was a volunteer. Zickrick was in no different situation than any other person who may have chanced along the road and participated in the clean up. The effect of the opinion in that case was to hold that defendant, when he negligently loaded the trailer, was not obliged to anticipate that the natural and probable result of his negligence would be to injure a stranger who might aid in a removal of the debris caused by the negligent loading.

In the instant case the relationship between the parties is distinctly different. A reasonable man could have anticipated that the 'walking boards' provided by defendant would not support the loads that were intended to be used upon them. And it would follow as a natural and probable result that when a load did break through that those, including plaintiff, charged with the duty of putting the loads in place would use the available means at hand to remedy the fault. Accordingly defendant could or should have anticipated that one of the workmen could be injured as a result of its negligence. Further, and in contrast to the facts in the Zickrick case, the relationship between plaintiff and defendant was one in which defendant owed a duty '* * * to the plaintiff to conform to a standard of conduct.' Prosser, Law of Torts, (1955 2nd Ed.), Chapter 9, § 47, 252. The evidence here supports the trial court's findings and the judgment is affirmed.

O'CONNELL (specially concurring).

The long delay in handing down the opinion in this case was occasioned by the court's interest in re-examining the proximate cause formula for the purpose of determining whether that formula should be abandoned. The case was orally argued three times. The last argument concerned only the question of whether the proximate cause 'doctrine' should be used in deciding the case at bar. The court was aided in pursuing its study of the matter by very helpful briefs prepared by amici curiae. ¹ These briefs were prepared in response to an invitation by the court in which it delineated the area of inquiry by the following statement:

'The case was presented in the briefs and in oral argument along conventional lines with respect to the question of proximate cause; but the Court has been considering whether the doctrine of proximate cause, as it has been understood and applied in the past, should be abandoned in favor of views expressed by some of the recognized scholars in this field, or perhaps be supplemented by such views. Of these views, that expressed by Leon Green in various essays, some of which are noted below, appears to be the most significant. It is his position, as we understand it, that the term causation should be limited to physical causation and that the inquiry as to the defendant's liability for acts actually caused by him can be fully considered and answered by the jury in terms of the defendant's negligence.

'Applying this theory to the present case, it would be held (if it were decided that the case was one proper to be submitted to a jury) that two questions should be submitted to the jury:

'1. Was defendant's conduct in furnishing defective dunnage a substantial factor in physically producing the injury, and if so,

'2. Was defendant negligent? (This would embrace the question of whether plaintiff's conduct in attempting to extricate the cart was a forseeable event.)

'On the other hand, under the conventional view of proximate cause, the questions to be submitted to the jury would be:

'1. Was the defendant negligent, and

'2. Was defendant's negligence the proximate cause of the injury or was the plaintiff's conduct an intervening and superseding cause?

'Under this latter view the instruction would be along the lines of that given in Hatch v. Smail, 249 Wis. 183, 23 N.W.2d 460, 166 A.L.R. 746. ²

'The Court desires briefs directed solely to the question whether it is desirable to change the law of causation in the manner above indicated. It does not desire argument on the merits of the particular case now before the Court.'

The majority of the court has decided to continue with the conventional proximate cause formula. I would abandon it and adopt, in essence, the approach suggested by Leon Green as explained by him in the references previously noted. The reasons for my position are developed below.

As was noted above, the case was presented along conventional lines. Defendant argues that his tortious conduct was not a proximate cause of the plaintiff's injuries as a matter of law. It is argued that defendant's tortious conduct 'spent itself' and 'came to rest' when the hand truck...