Downey v. Traveler's Inn

• Citation: 243 Or. 206,412 P.2d 359
• Parties: Freida DOWNEY, Appellant, v. TRAVELER'S INN, an Oregon corporation, Respondent.
• Decision Date: 23 March 1966
• Court: Supreme Court of Oregon

Page 359

412 P.2d 359

243 Or. 206

Freida DOWNEY, Appellant, v. TRAVELER'S INN, an Oregon corporation, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 3, 1966.

Decided March 23, 1966.

Steve Anderson, Salem, argued the cause for appellant. With him on the brief was F. P. Stager, Salem.

Myron L. Enfield, Salem, argued the cause for respondent. With him on the brief were George A. Rhoten and Rhoten, Rhoten & Speerstra, Salem.

Before McALLISTER, C.J., and SLOAN, GOODWIN, HOLMAN, and SCHWAB, JJ.

HOLMAN, Justice.

Plaintiff brought this action for damages for personal injuries. She claims that the skin of her hands and arms became blistered, cracked, broken out and infected and that such injuries were caused by a cleaning material furnished for her use while employed by defendant. She has appealed from a directed verdict for defendant at the completion of all testimony.

Defendant operated a motel. Plaintiff was employed by defendant for about three months as a cleaning maid. During this time she continuously used a liquid cleaning material furnished by defendant. About a week prior to the termination of her employment the skin of her hands and arms commenced blistering and cracking and became infected. Her physician testified she had contact dermatitis caused, in his opinion, by the use of the cleaning fluid. There was testimony from which it could be found that no gloves were furnished by defendant for plaintiff's use.

Plaintiff pleaded the following sections of the Basic Safety Code for the State of Oregon, which were promulgated under authority of ORS 654.035 by the State Industrial Accident Commission:

6.3 'Special protective * * * apparel required for safe employment * * * shall be furnished by the employer * * *.'

6.20 'Employees handling * * * irritating compounds * * * shall wear rubber gloves or other effective hand protection.'

Plaintiff pleaded, among others, the following act of negligence by defendant: 'In failing to provide plaintiff with personal protective equipment, in that said defendant could have provided rubber gloves * * * or any other hand protection for employee's use.' No doubt the allegation of negligence is not a pleading masterpiece, because it alleges only that defendant 'coulc have provided' instead of 'failed to provide.' Nevertheless, we believe it adequately informed defendant that plaintiff was claiming defendant was negligent in not furnishing plaintiff with rubber gloves for use in handling an irritating compound, i.e., the cleaning material provided by defendant for plaintiff's use as a cleaning maid.

Plaintiff contends that the trial court erred in refusing to permit plaintiff to introduce evidence that other persons employed by defendant at the same time and under similar circumstances suffered from skin irritations. When objections to questions seeking to bring out this information were sustained, plaintiff made an offer of proof as follows:

'* * * Had we been allowed to offer testimony by Mrs. Downey (the plaintiff) and Mrs. Thomas * * * we could have offered testimony that they say that other employees of the Traveler's Inn who worked at the same time they did, had the same type of work, used the same type of solution in the same capacity, had irritations on their hands.'

The defendant contends that the offer of proof was not adequate because it stated conclusions and was too general rather than being distinct and specific. It cites as authority for this proposition Prestbye v. Kliphardt, 113 Or. 59, 231 P. 187 (1924), which, in turn, rests its opinion on Columbia Realty Investment Co. v. Alameda Land Co., 87 Or. 277, 168 P. 64 (1917) reh. den. 168 P. 440 (1918), and Booth-Kelly Lumber Co. v. Williams, 95 Or. 476, 188 P. 213 (1920). In Columbia Realty the court said:

'* * * In the case at bar no witness was named and the offer of proof was couched in the most general terms. We think that plaintiff should have named its witnesses and specified the acts of interference (with performance of the contract) relied on. * * *' 87 Or. at 290, 168 P. at 68.

An excellent statement of the purpose of an offer of proof and the necessity for specificity is set forth in Booth-Kelly. The case held that it was not sufficient to read into the record the language of a pleading as an offer of proof. The court said:

'* * * In making an offer of proof it is requisite that counsel should be distinct and clear. The tender should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled upon in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling, if adverse. * * *' 95 Or. at 483, 188 P. at 215.

If the offer of proof involved in this case is examined in light of this purpose, it appears adequate. It called to the court's attention that plaintiff intended to prove by two specific witnesses that other employees of defendant engaged in the same type of work as plaintiff and at the same time, who used the same type of solution in the same capacity, had irritations on their hands. We believe the offer of proof to be sufficiently specific so that the trial judge could, and this court can, rule on whether the proposed evidence was relevant and admissible. We realize there have been decisions of this court which have imposed highly technical requirements on offers of proof, but if the offer is sufficient to permit the courts to rule intelligently on the propriety of the offered evidence, we believe the offer is sufficient.

Was the evidence relevant and admissible? The obvious purpose of the evidence was to prove that the cleaning compound was irritating so that defendant came within the provisions of the Safety Code and therefore was obligated to furnish plaintiff with protective equipment. Apparently, the trial court kept the evidence out on the basis that the proposed witnesses were not medical witnesses and were, therefore, not competent to determine whether the irritations on the other employees' hands were similar to plaintiff's and were caused by the cleaning fluid.

Even if the skin irritations of the other employees were not similar to those of plaintiff, this would not make the offered testimony inadmissible. The Safety Code requires rubber gloves where workers are using irritating substances. There is no requirement by the Code that the irritations generated by the compound be the same on all persons.

In order to make the testimony admissible there was no necessity that an expert medical witness be used to prove that the irritations on the other employees' hands were caused by the cleaning solution. This was a matter that could have been inferred by the jury, without medical testimony, from the evidence that other employees, as well as plaintiff, suffered skin irritations while using the solution in performing the same type of labor at the same time.

In the case of Reed v. Rosenthal, 129 Or. 203, 276 [243 Or. 212] P. 684, 63 A.L.R. 1071 (1929), plaintiff requested damages because of a diseased condition on her face which she claimed resulted from the use of unsterile equipment in removing blackheads from skin pores during a beauty treatment. The court held that the jury could find, without expert medical testimony, that the infection of plaintiff's face was caused by the use of unsterilized equipment as described by plaintiff. At page 208, 276 P. at page 685 the court said:

'We know of no authority to the effect that the manner or place of the contraction of such a diseased condition, or blood poisoning, such as complained of by plaintiff...