Drefs v. Holman Transfer Co.

• Citation: 130 Or. 452,280 P. 505
• Parties: DREFS v. HOLMAN TRANSFER CO. ET AL.
• Decision Date: 24 September 1929
• Court: Supreme Court of Oregon

280 P. 505

130 Or. 452

DREFS v. HOLMAN TRANSFER CO. ET AL.

Supreme Court of Oregon

September 24, 1929

In Bank.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by Caroline Drefs, an incompetent person, by T. J. Hewitt her guardian, against the Holman Transfer Company and another. From a judgment of dismissal, plaintiff appeals. Affirmed.

This is an action brought by the plaintiff to recover for the death of plaintiff's son, which it is alleged was brought about by the concurrent negligence of defendants' employees.

The action is brought by plaintiff through her guardian, assuming that the right of action accrues under the Employers' Liability Act (Laws 1911, p. 16, as amended), instead of accruing under the general statutes, which, in our Code follow generally what is known as "Lord Campbell's Act," and which action must be brought by the administrator for the benefit of the estate. So it may be observed that the contention here is not whether a cause of action exists against the defendants, but as to who is the proper person to bring it. This is important, not only with respect to the proper disposition of the amount recovered but because of the radical difference in procedure and practice in the two actions.

The complaint, in substance, alleges that Drefs, the deceased was, at the time of the injury, an employee of the Pacific Telephone & Telegraph Company, a corporation, and, as such was engaged in making a required excavation on the public streets of Portland; that in the prosecution of such labor he was required to expose himself to the danger incident to the operation of the trucks of defendant Holman Transfer Company and the operation of the ambulances of the defendant Arrow Ambulance Company; and that the work in which he was engaged was hazardous in the extreme and involved risk and danger to both himself and to the employees of each of the defendants. The complaint then goes on at length and with great detail to allege facts which, if true, would constitute extreme negligence on the part of the drivers of both vehicles, which, taken together, or singly, caused the death of the deceased. It is not practicable to recite in extenso the complaint, but it suffices to present this state of facts:

First, that deceased was engaged in the hazardous occupation of making an excavation in the street as the employee of the Pacific Telephone & Telegraph Company; second, that the drivers of the two vehicles were engaged in the occupation of propelling their vehicles over the streets of Portland, which occupation plaintiff alleges was a hazardous and dangerous employment and hazardous to drivers; and, third, that by their negligence and carelessness, the deceased was run against and killed.

No negligence is charged against the corporation employing plaintiff, and it was not made a party to the action.

The defendants appeared separately, and each demurred generally to the complaint, which demurrer being sustained and the plaintiff failing to appear further, a judgment was rendered dismissing the action, from which plaintiff appeals.

Arthur I. Moulton, of Portland (Lord & Moulton, of Portland, on the brief), for appellant.

E. K. Oppenheimer, of Portland (Wilbur, Beckett, Howell & Oppenheimer, of Portland, on the brief), for respondent Transfer Company.

E. L. McDougal, of Portland, for respondent Arrow Ambulance Company.

McBRIDE, J. (after stating the facts as above).

While it seems probable that a cause of action exists which could be properly urged by an administrator of the deceased under section 380, Or. L., we are of the opinion that no cause of action exists under the Employers' Liability Act. Soon after the statute was enacted, cases began coming to this court involving the construction of various phases of the statute, and from the decisions of these cases, the writer feels that we have deduced and worked out the following formula:

In order that an employee may recover under the Employers' Liability Act, the orbit or scope of his employment must require him to be about the machinery or work of the owner in the accomplishment of a common purpose in which the owner has an interest.

The foregoing is substantially the first proposition announced by the respondents in the case at bar, and with exceptions not relating to the present case, we accept it as a fair statement of the general rule.

From the tenor of the act, it is evident that the principal idea in the mind of the framers was to regulate the relations between employers and employees in relation to the use and safeguarding of dangerous machinery and appliances. It was a beneficent statute, and as construed by this court, which has gone to the extreme of liberality in construing it, has resulted in extending to employees in hazardous occupations a degree of protection theretofore unknown. One difficulty arose where there appeared to be interlocking interests between the different employers. This is illustrated in the case of Clayton v. Enterprise Electric Co., 82 Or. 149, 161 P. 411. In that case the Enterprise Electric Company generated the electricity and delivered it to one Roe, who was the employer of Clayton, the deceased. Defendant had connected its wires and transmission system, upon which a dangerous voltage of electricity was being carried, with the motor machinery of the pumping plant operated by Roe. Clayton was Roe's employee and, while engaged in turning off the power by opening the switch and disconnecting the wiring and transmission plant of the defendant with the same, he was killed by a shock of electricity from the wiring, switches, and apparatus of defendant. It was alleged that the injury and death was caused by imperfect and negligent insulation, or lack of insulation, of defendant's machinery and connections.

Here was a case where the employer of deceased was Roe, and the defendant electric company had no contractual relations with deceased, but only with his employer, but the death occurred through their negligence in regard to...