Fisher v. Rudie Wilhelm Warehouse Co.

• Citation: 224 Or. 26,355 P.2d 242
• Parties: Raymond L. FISHER, Respondent, v. RUDIE WILHELM WAREHOUSE CO., Inc., a Corporation, Appellant.
• Decision Date: 14 September 1960
• Court: Supreme Court of Oregon

Page 242

355 P.2d 242

224 Or. 26

Raymond L. FISHER, Respondent, v. RUDIE WILHELM WAREHOUSE CO., Inc., a Corporation, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted July 14, 1960.

Decided Sept. 14, 1960.

Duane Vergeer, Portland, argued the cause for appellant. On the brief were Vergeer & Samuels and Charles S. Crookham, Portland.

Burl L. Green, Portland, argued the cause for respondent. On the brief were Donald S. Richardson, Philip A. Levin, and Green, Richardson, Green & Griswold, Portland.

Before McALLISTER, C. J., and WARNER, O'CONNELL, GOODWIN and MILLARD, JJ.

GOODWIN, Justice.

The defendant, Wilhelm, appeals from the circuit court's failure to invoke the 'joint supervision and control' exclusion which limits certain employees covered by the Workmen's Compensation Act, ORS ch. 656, to their benefits under the Act and deprives them of the right in certain cases to bring an action against a negligent third party who is also covered by the Act.

The circuit court ruled in a preliminary proceeding that Fisher, the plaintiff, was not barred by ORS 656.154 from seeking damages for injuries sustained December 2, 1954. The sole question is whether the judge who ruled initially that the action would lie correctly applied the statute as it was then written to the facts of this case.

The statute, before its 1959 amendment, provided as follows:

ORS 656.154. '(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.'

Each case to which the above-quoted statute is sought to be applied requires the trial court, on supplemental pleadings, to analyze the facts in order to decide whether the plaintiff is barred by the statute. In Nelson v. Bartley, Or., 352 P.2d 1083, Mr. Justice Rossman reviewed the numerous Oregon decisions which have construed the statute. The facts in the instant case, for the most part, are not disputed.

Fisher was employed as a structural steel worker and foreman by Portland Wire and Iron Company, a covered employer under the Workmen's Compensation Act. Wilhelm also was a covered employer under the same act.

Fisher's duties required him to supervise at least a part of the construction of the steel framework of a large shopping center being built by a general contractor who is not involved in this case. Fisher's duties included the receiving of structural steel from his employer's stockpiles, and the general direction of its unloading, sorting, and ultimate installation in the framework of the building.

Wilhelm, an independent contractor, had been engaged by Fisher's employer to store, and when called upon to do so, to deliver such items of structural steel as might be required on the job. Wilhelm furnished, in addition to the necessary trucks, a truck-mounted crane, and drivers and operators for such machines. Fisher's employer, on the day in question, gave no directions to Wilhelm other than to deliver to the job site such steel items as Fisher's employer needed for the work.

On December 2, 1954, Fisher had received general instructions to receive two loads of steel to be delivered by Wilhelm. He was accompanied by a helper who was also employed by Portland Wire and Iron. Fisher directed the crane and truck operators to the particular locations where steel was to be unloaded. At the site where Fisher was hurt, there were present in addition to himself and his own workman two Wilhelm truck drivers and a Wilhelm crane operator. The load being unloaded when the accident befell Fisher consisted of fabricated steel trusses, about 20 feet long.

It was to the benefit of Fisher's employer not to have the heavy steel units dumped helter skelter in a pile as they came off the Wilhelm trucks. No specific directions appear to have been given by either Wilhelm or Fisher's employer, but by common consent the workmen of both employers had followed the obvious course of unloading the steel in an orderly manner to expedite its future employment in the building.

At the time of the accident, Fisher and his helper were on the ground at the place where he wanted the steel unloaded. The Wilhelm truck drivers were on the bed of the truck which was being unloaded. One of the Wilhelm drivers acted as signalman for the crane operator, and by hand signals indicated to the crane operator when to raise the load being lifted off the truck. Fisher then took over the hand signals for the lowering operation. Fisher and his helper were using their hands to guide the steel as it was being slowly lowered into position where Fisher had indicated it was to lie.

The evidence showed that when a heavy load was being lowered by the crane, the sling around the load converged at the approximate center of gravity above the load, and the load was in relative balance. Thus only a slight amount of manual strength was required to move a free-swinging crane load from side to side in order to align the load as it came to rest. A man of ordinary strength, the evidence showed, could easily guide a load of steel weighing several thousand pounds.

As Fisher was guiding a load into place with one hand and signalling to the craneman with the other, something happened in the crane operation to cause the load to drop, crushing Fisher's foot.

There is a dispute in the evidence whether there was negligence on the part of Wilhelm's employee who operated the crane, but that question is not before this court. We are called upon to determine whether or not the action will lie, not whether Wilhelm might have been negligent.

The trial court found, and there is no evidence to the contrary, that Wilhelm had the exclusive control of the operation and upkeep of the crane. Fisher's employer had no right of control over the care and operation of the crane, and Wilhelm had no right of control over Fisher or his fellow workman.

The significant facts can thus be summarized. Five men were unloading the second of two trucks sent to Fisher's employer by Wilhelm, an independent employer who had no interest in the building Fisher was helping to construct. Three of the five men were employed by, and were under the general control of Wilhelm. Two of the five men were employed by and were under the general control of Portland Wire and Iron. Neither employer's workmen had express or implied authority to control the actions of the other employer's workmen. If a dispute had arisen concerning their authority, both groups of workmen undoubtedly would have reported back to their own employers for instructions.

All five of the men were engaged in unloading steel. Fisher was in charge of the work on the ground, and, if asked, the Wilhelm men would have said they were in charge of their own trucks and the crane. They were asked, and so stated, at the trial. By common consent, all five cooperated and unloaded the steel in the most expeditious and orderly way they could. The crane operator testified that the followed signals from both Fisher and the Wilhelm truck drivers, depending upon the man who, at a given time, was in the best position to give the needed signal. The crane operator testified that he had been told to report to Fisher, and that he considered Fisher to be in general charge of the unloading.

If any one of the men had not been sent to the job by his respective employer, some other man would have had to be supplied by the other employer, or the...