Foster v. University Lumber & Shingle Co.

• Decision Date: 22 April 1913
• Citation: 65 Or. 46,131 P. 736
• Parties: FOSTER v. UNIVERSITY LUMBER & SHINGLE CO.
• Court: Oregon Supreme Court

131 P. 736

65 Or. 46

FOSTER v. UNIVERSITY LUMBER & SHINGLE CO.

Supreme Court of Oregon

April 22, 1913

Appeal from Circuit Court, Multnomah County; J.P. Kavanaugh, Judge.

Action by Charles L. Foster against the University Lumber & Shingle Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Burnett J., dissenting.

This is an action for personal injuries sustained by plaintiff. The complaint alleges, in substance: That plaintiff was employed by defendant as a sawyer in its shingle mill. That defendant had placed in its mill a jointer saw, and had constructed and placed over and above the saw a guard for the purpose of preventing injury to the employés in and about the mill, and to prevent injury to the person by reason of coming in contact with the saw. That on November 12, 1910, while plaintiff was working at said machine, by reason of the crowded condition of the place where he was so working, he stumbled and reached for and placed his hand upon said guard to prevent himself from falling. That said guard was loose and moved and sprung over so that plaintiff's left hand went down upon the jointer saw, which was revolving at a rapid rate of speed, and thereby all the fingers and part of the thumb of his left hand were cut and severed from his hand, inflicting permanent injury. That the defendant carelessly and negligently failed and neglected to furnish a safe place and machinery for the plaintiff to work in and with upon the occasion referred to in this: That the defendant carelessly and negligently failed to have the said guard properly fastened and secure at the time the said accident occurred, and carelessly and negligently suffered and allowed said guard to become loose and insecure and unsafe, and permitted the same to remain unsafe and insecure. That the defendant at and before the time of the said accident, by the exercise of reasonable diligence, ought to have known of the dangerous condition of the said saw and guard, and of the looseness of the said guard, and of its insecurity and unsafeness, and that the defendant did have notice and knowledge of the same, and that defendant carelessly and negligently failed and neglected to notify or warn or instruct or inform this plaintiff of the dangerous condition of the said saw and guard or of any condition of the said guard or saw. That the plaintiff had no notice or knowledge of the existence of the dangerous condition of the said guard or that the same was loose or insecure, but believed that the same was safe, permanent, and strong, and properly fastened. Defendant answered, denying negligence on its part and pleading contributory negligence and assumption of risk by plaintiff, and also pleaded a written release by plaintiff of all damages by reason of the accident. By way of reply plaintiff denied the execution of the release and further alleged as follows: "The plaintiff, further replying to the said second and separate defense herein alleges that on or about the 19th day of November, 1910, the employés in and about the mill of the said defendant, by and on account of the injury to the plaintiff, subscribed a sum of money for the plaintiff and placed the same in the hands of J. Kroenert, who is and was at said time the president and general manager of the defendant. That the said Kroenert promised and agreed that he would assist this plaintiff personally to the same extent as did the employés, and that while this plaintiff was suffering from the injuries to his left hand as set out in the complaint herein, and while he was suffering from the effects of the anaesthetic administered to him at the time of the amputation of the fingers from his left hand, this plaintiff was ordered and directed to go to the said J. Kroenert to receive the money so subscribed. That plaintiff went to the office of said Kroenert. That thereupon the said Kroenert requested him to sign a paper, and falsely and fraudulently and unlawfully and with intent to deceive and defraud this plaintiff represented that the said paper was a receipt for the money so subscribed by the employés and by himself, and that the same was not intended and would not release the company from the damages sustained by this plaintiff, and that the defendant would continually employ the plaintiff in and about the mill and premises and pay to him the sum of $75 each and every month as long as the mill continued to stand. That relying upon the representation so made, and being sick and ill as aforesaid, this plaintiff signed the pretended release."

After the evidence had been introduced defendant asked the following instructions, which were refused: "I instruct you that it is a general rule that the plaintiff cannot be heard to say that he did not know the contents of the release or the paper signed by him when he had an opportunity to read it. *** I instruct you to bring in your verdict in favor of the defendant." In instructing the jury, the court used the following language, which was excepted to by defendant "The degree of care which the law requires of a master with reference to a reasonably safe place and to reasonably safe machinery and appliances is greater comparatively than that required of the servant, and the master may be chargeable in certain circumstances with negligence in this respect in failing to ascertain the danger where a servant would not." The court also gave the following direction to the jury: "It is agreed that, in case you return a verdict after I have left the courthouse, you may return a sealed verdict, and in that case all members of the jury agreeing must sign the verdict, and then you will hand it to the bailiff and then be discharged, and you may disperse to your homes, and, this being the last jury upon which you will sit, you will not be obliged to return." No objection was made to this direction. The jury found a majority verdict against defendant for $6,000, which they sealed and delivered to the bailiff, as directed, and dispersed. The verdict so sealed was handed to the court the next morning, and, though opened and read in the presence of counsel for both parties, no objection was made to the absence of the jury nor to any irregularity in the reception of the verdict. Counsel for defendant asked and were granted 40 days in which to move for a new trial, and in said motion for the first time raised the objection, among others, that the verdict was not delivered in open court in the presence of the jury. The court rendered judgment upon the verdict in favor of plaintiff, and defendant appeals.

S.C. Spencer, of Portland (Wilbur, Spencer & Dibble, of Portland, on the brief), for appellant.

John Ditchburn and F.S. Wilhelm, both of Portland, for respondent.

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

The first question arises upon the validity of the release executed by plaintiff. By the provisions of section 3, art. 7, of the Constitution, as amended November 8, 1910 (see Laws 1911, p. 7), if there is any evidence to support the verdict, we are bound by the finding of the jury, and therefore we are to a great extent bound by the testimony of plaintiff upon this point.

This testimony is substantially that one Porteous, the night foreman of the mill, visited him shortly after the accident identified himself as a brother in the same secret order, and advised him not to sue the company, telling him that he had not a witness in the world, and intimating that the company would do well by him. To this he made no reply. Upon the day the release was signed, Porteous came again, and the witness gives the following account of what occurred: "A. He came down to my house and wanted to know how I was, and I told him. He says, 'The old man wants to know why you don't come down to the office.' I told him I had no business down to the office that I knew of. He says, 'Well, the boys made up quite a purse for you.' I says, 'Is that so?' He says, 'Yes, they made up $192. I have got it here in my pocket, but i have it with some other papers so I won't give it to you; I will wait and you will have to come down to the office this afternoon, because the old man wants to see you anyway.' I went down to the office that afternoon. Q. Now, state to the jury what occurred there at that time? A. I went into the office and bid Mr. Kroenert the time of day. He wanted to know how I was feeling. I told him. Q. What did you tell him? A. I told him I was sick and suffering more pain than I really ought to under the conditions. Q. Were you under the care of a doctor at that time? A. Yes, sir; Dr. Moore had dressed it. I think it was the day before this that he dressed my hand. Q. In what shape were you in regard to the effects of the anaesthetic? A. I was sick like an anaesthetic makes any one; sick at my stomach and vomited considerable. Q. Were you sick up to the time of this date that you went there? A. For a month after. I went to see Dr. Moore something like a month after. Q. When you went in there this afternoon what occurred; what did Mr. Kroenert say to you? A. He bid me the time of day; wanted to know how I was feeling, and I told him; I told him I was sick and I was suffering more pain than I really ought to. He says, 'I have a check here that the boys made up for you for $192.' He says, 'Now, I am going to give you an allowance myself on that;' and he says, 'It will make you a nice little purse.' He says, 'That will carry you through until you are well;' and he wanted to know how I was hurt, and I told him. Q. What did you tell him? A. I told him I tripped up and put my hand on this guard, and apparently the guard was loose for it bent over when I put my hand on it and let me come down on the saw and cut my hand off. And he asked me if I would stay there for two or three minutes...