Galer v. Weyerhaeuser Timber Co.

• Decision Date: 23 September 1959
• Parties: Earl F. GALER, Appellant, v. WEYERHAEUSER TIMBER CO., a corporation, R. S. Bonn and J. H. Beaver, copartners, dba Mechanical Constructors Co., Herbert E. Hunter and Otto G. Benefiel, Respondents.
• Court: Oregon Supreme Court

Page 544

344 P.2d 544

218 Or. 152

Earl F. GALER, Appellant, v. WEYERHAEUSER TIMBER CO., a corporation, R. S. Bonn and J. H Beaver, copartners, dba Mechanical Constructors Co., Herbert E. Hunter and Otto G Benefiel, Respondents.

Supreme Court of Oregon, In Banc.

Argued and submitted Feb. 13, 1959.

Decided Sept. 23, 1959.

Nels Peterson, Portland, argued the cause for appellant. On the brief were Peterson & Pozzi, Berkeley Lent and Philip A. Levin, Portland.

Robert Mautz, Portland, argued the cause for respondent Weyerhaeuser Timber Co. On the brief were Mautz, Souther, Spaulding, Denecke & Kinsey, Portland.

Ray Mize, Portland, argued the cause and filed the brief for respondents Bonn and Beaver.

Richard E. Kriesien, Portland, argued the cause for respondent Hunter. On the brief were Meindl, Mize & Kriesien, Portland.

ROSSMAN, Justice.

This is an appeal by the plaintiff, Earl F. Galer, from a judgment which the circuit court entered in favor of the defendants, five in number, after the jury had returned its verdict in favor of four of the defendants and a directed verdict in favor of the fifth, Otto G. Benefiel. The defendants are (1) Weyerhaeuser Timber Co., (2) R. S. Bonn and J. H. Beaver, and (3) Herbert E. Hunter and Otto G. Benefiel. The defendant Weyerhaeuser Timber Co., to whom we will refer as Weyerhaeuser, was the plaintiff's employer. The defendants Bonn and Beaver constitute a partnership which engaged in the pipe fitting business. The defendants Hunter and Benefiel were journeymen pipefitters who worked for wages. Benefiel has made no appearance in this court. In his complaint the plaintiff sought damages on account of an injury which he incurred December 18, 1952, while working in the pulp mill of the Springfield plant of Weyerhaeuser. According to the complaint, the plaintiff had ascended a tubular scaffold, defectively constructed, and had fallen from it.

The plaintiff presents seven assignments of error. The first and second are based upon requested instructions that were not given. The third, fifth, sixth and seventh challenge instructions that were given. The fourth complains of a ruling which sustained the defendants' objections to a document which the plaintiff sought to introduce as evidence. The seven assignments of error present two main issues which the plaintiff's (appellant's) brief phrases in this manner:

'One of the issues submitted was whether a crew of pipefitters, carried on the payroll by Bonn and Beaver, were in reality Bonn and Beaver employees, or had been loaned to Weyerhaeuser for the purpose of doing work in connection with the installation of machines called foam eliminators in certain tanks of Weyerhaeuser's, known as footboxes. Another issue was whether the plaintiff was the foreman in charge of this crew, or merely had the duty of seeing to it on behalf of Weyerhaeuser that the work met Weyerhaeuser's specifications.'

The plaintiff contends that the pipefitters, who are mentioned in the quotation, were the employees of Bonn and Beaver. He denies that they had been loaned to Weyerhaeuser. His brief, for example, in referring to the defendants Hunter and Benefiel, who the plaintiff avers were two of the pipefitters who erected the scaffold, says, 'it is 'indisputable' that Hunter and Benefiel, who erected the scaffold, were not loaned employees.' The plaintiff concedes that he was the foreman of Weyerhaeuser's crew of maintenance pipefitters, but asserted that he was not the foreman of the crew of pipefitters who were engaged in the installation of the foam eliminators, some of whom erected the scaffold.

The complaint alleged that (a) the defendant Weyerhaeuser was the plaintiff's employer and the owner of the scaffold, (b) the defendants Bonn and Beaver were a partnership which, as 'contractors or subcontractors,' was engaged 'in the repairing and alteration of a certain building and equipment in the pulp mill of defendant' Weyerhaeuser, and (c) Bonn and Beaver 'employed' the defendants Hunter and Benefiel. The complaint alleged that the scaffold 'had been erected by said employees of Bonn and Beaver.'

The complaint made separate charges of negligence against (c) Weyerhaeuser, (b) Bonn and Beaver and (c) Hunter and Benefiel. It alleged that Weyerhaeuser was negligent in:

1. Furnishing planks for the scaffold that lacked cleats upon their lower side so as to prevent the planks from slipping off the upper horizontal bars of the scaffold 2. Failing to provide a reasonably safe place in which the plaintiff could perform his work inasmuch as a plank of the scaffold was not fitted with cleats and bore a substance that rendered it slippery,

3. Neglecting to inspect the scaffold during its erection, and

4. Neglecting to use every care, device and precaution to render the work safe in accordance with the demands of ORS 654.305.

The complaint charged that the defendants Bonn and Beaver were negligent in:

1. Placing on the scaffold a plank which was not fitted with cleats so as to prevent it from slipping off the horizontal bar,

2. Using a plank which lacked cleats and which bore a slippery substance, and

3. Neglecting to inspect the planks prior to the time that the plaintiff was required to walk upon them.

The complaint averred that Hunter and Benefiel were negligent in placing on the scaffold a plank that lacked cleats so as to prevent it from slipping off the scaffold's horizontal bar.

Weyerhaeuser's answer, after denying all charges of negligence, admitted that the (1) defendants Bonn and Beaver were partners, (2) defendants Bonn and Beaver 'employed defendants Hunter and Benefiel,' (3) Bonn and Beaver at the time of plaintiff's injury 'were engaged in a job' in Weyerhaeuser's plant, and (4) Bonn and Beaver's employees, including Hunter and Benefiel, erected the scaffold which the complaint mentions. Affirmatively, Weyerhaeuser's answer alleged that if there was any failure to have complied with the demands of due care or of any statute, 'the same was the responsibility of the plaintiff who was the foreman in charge of the particular work and operation for this defendant.'

The answer of the defendants Bonn and Beaver denied the complaint's averments of negligence. It admitted that Bonn and Beaver were 'sub-contractors in performing certain piping work in the pulp mill of the defendant Weyerhaeuser * * * and that Herbert E. Hunter and Otto G. Benefiel were employed by these answering defendants.' The answer charged the plaintiff with negligence.

The defendants Hunter and Benefiel joined in an answer which denied the charges of negligence and admitted that those two defendants were employed by Bonn and Beaver. It charged the plaintiff with contributory negligence.

The transcript of evidence covers 450 pages and is accompanied by numerous exhibits. The thorough manner in which the facts were developed apparently afforded the jury a good impression of the case. We will now mention pertinent evidence.

Weyerhaeuser's Springfield plant includes a large mill which produces pulp and paperboard. At the time of the plaintiff's injury the pulp mill was undergoing extensive alterations which were designed to increase its output. That work, however, is of only indirect importance in this case. In the early part of December 1952 the pulp mill closed for a few days so that annual maintenance work, which could not be performed while the mill was in operation, could be done. A part of the work which Weyerhaeuser desired to perform in the shut-down period was the installation of a foam eliminator in each of two large steel tanks known as footboxes which were a part of the pulp mill. The installation of the foam eliminators was not a part of the expansion program. The tanks were 22 feet in diameter and 28 feet high. In order to install the foam eliminators in the tanks the workmen were required, among other operations, to cut openings in the steel tanks. The services of pipefitters were essential to the project. It was planned to begin this work Monday, December 15, 1952. Weyerhaeuser maintained a crew of maintenance pipefitters, fourteen in number, throughout the year, but in the December shut-down period those men had sufficient other work awaiting them that they were not able to install the foam eliminators. The plaintiff was foreman of the crew of pipefitters just described. How to obtain the pipefitters who were needed to install the foam eliminators was a problem that had to be solved. Seemingly, due to union regulations, Weyerhaeuser was unable to obtain the needed pipefitters from the union upon its (Weyerhaeuser's) request to that body.

The expansion work in the pulp mill, which we have mentioned, was being executed by the Hoffman Construction Co. Pipe fitting was a part of that undertaking and a firm composed of the defendants R. S. Bonn and H. J. Beaver had a subcontract from Hoffman to perform it. Beaver and Bonn's foreman in charge of the pipe fitting work was Hugh B. Leedle.

The plaintiff swore that in the fall of 1952, some time before work was begun upon the installation of the foam eliminators, he, Bonn, Leedle, the mill manager, the mechanical inspector and the carpentry foreman held a meeting in which the work of installing the foam eliminators was planned. Weyerhaeuser had divided the operation of its Springfield plant into departments and had entrusted each department to a department head such as mill manager, plant manager and pipefitter foreman. The department heads met from time to time in business meetings in the course of which they sought to resolve their problems and inaugurate new undertakings. The plaintiff swore that he stated in the course of the meeting just mentioned that preceded the installation of the foam eliminators that his maintenance crew of pipefitters would not have time during the shut-down period to install the foam eliminators and that fifteen additional pipefitters would be necessary to perform the...