Garvin v. Western Cooperage Co.

• Citation: 94 Or. 487,184 P. 555
• Parties: GARVIN, ALIEN PROPERTY CUSTODIAN, v. WESTERN COOPERAGE CO.
• Decision Date: 07 October 1919
• Court: Supreme Court of Oregon

184 P. 555

94 Or. 487

GARVIN, ALIEN PROPERTY CUSTODIAN, v. WESTERN COOPERAGE CO.

Supreme Court of Oregon

October 7, 1919

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Marja Rjacich against the Western Cooperage Company, in which Francis P. Garvin, as alien property custodian, was substituted for the plaintiff. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is an action wherein it is sought to recover damages for the death of one Mjo Rjacich, of whom the plaintiff claims to be the mother. The substantial facts, as alleged in the complaint, are that Mjo Rjacich was a member of the section crew upon defendant's logging railroad; that at the time of the accident resulting in his death he was riding upon one of defendant's engines; that at the same time other employés were loading a logging car, and that after it was partially loaded a bolt in the hand brake attached to the car broke, thereby releasing the brake, whereupon the car "ran wild," colliding with the engine upon which Rjacich was riding, and thereby caused the injuries which resulted in his death. The alleged negligence upon which the right of recovery is based consisted in spotting the car upon a dangerous and steep grade without using the necessary methods of anchoring the car during the operation of loading it, as follows:

(1) The defendant failed to provide "snubbing lines," consisting of a steel cable, one end of which is attached to the car, and the other end to some stationary object, which would safely hold the car in place.

(2) It neglected to safeguard the car with "safety chains," with which the car might be chained to the track.

(3) It neglected to provide safety or derailing switches with which to derail a "run-away" car.

(4) That the defendant, at the time of the accident, had a derailing switch installed below the grade where the car was being loaded, but it was spiked to the main line so as to be useless as a safety device.

(5) That it neglected to provide sound and substantial brakes on the logging car, and failed to take measures to see that the brakes were in good working condition.

The answer, after denials, pleads affirmatively as follows:

That on or about the 13th day of September, 1915, defendant was, and for some time prior thereto had been, conducting a logging business in Clatsop county, Or.; that in connection with said logging business defendant operated a logging railroad; that on or about the said 13th day of September, 1915, Mjo Rjacich was in its employ as a section hand, and at the time of his accident aforesaid he was riding on a locomotive belonging to defendant; that some distance away from the point of the accident a set of logging trucks were being loaded with logs at a logging rollway; that said trucks were practically new and had been purchased from a reputable concern, and had been manufactured by a reputable manufacturer; that the said trucks were of standard make, such as are used commonly in work of that kind, and had been properly inspected by the defendant; that each truck had a standard brake, with a brake-staff which could be tightened from the side; that when tightened the said brake-staff was held in place by means of a pawl, which fitted into a ratchet; that the said ratchet was attached to said brake-staff by means of a metal pin which ran through the said ratchet and said brake-staff; that while the said trucks were being loaded with logs the pin holding the ratchet attached to the forward brake-staff broke in some manner, thereby allowing the brakes to loosen from the wheels, and the said trucks, loaded with two logs started down the track, colliding with the trucks loaded with logs attached to the locomotive aforesaid, on which locomotive the said Mjo Rjacich was riding; that by reason of said collision the said Mjo Rjacich received injuries from which he afterward died; that the pin which broke appeared amply sufficient, and was put in place by the manufacturers that an inspection would not disclose any defect in said pin, and so far as this defendant knew, or could have known by the exercise of ordinary care, said pin was in good, first-class condition; and so far as defendant is concerned said accident was wholly unavoidable, accidental, and unforeseen, and could not have been prevented by it through the exercise of ordinary care.

A reply having been filed, there was a trial, resulting in a verdict and judgment for plaintiff, and defendant appeals.

F. S. Senn, of Portland (Senn, Ekwall & Recken, of Portland, on the briefs), for appellant.

Chas. T. Haas and M. H. Clark, both of Portland (Woerndle & Haas, A. E. Clark, and John A. Collier, all of Portland, on the briefs), for respondent Western Cooperage Co.

A. P. Dobson, of Portland, for respondent Garvin.

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

The first assignment of error is that the complaint is insufficient because it fails to allege that defendant had elected not to come under the Workmen's Compensation Act (Laws 1913, c. 112). The contention thus presented has been settled adversely to defendant's theory in Olds v. Olds, 88 Or. 209, 171 P. 1046.

It is then urged that the court erred in permitting plaintiff's attorney to testify that he was authorized and requested to commence the action in behalf of plaintiff at the119 request of and under the direction of the Austrian consul general. The objection to this evidence was based upon the ground that under the statute no one but the mother is entitled to bring action, and that the consul cannot authorize the proceeding. This question also has been set at rest in the recent case of Ljubich v. Western Cooperage Co., 184 P. 551 (not yet officially reported), wherein it is held that, under the treaties of the United States with Austria-Hungary, the consuls of that country are, in effect, ex officio attorneys in fact, with ample authority in cases like the one at bar.

The next assignment is that the court erred in holding that the plaintiff can maintain this action, being a nonresident alien. Although this question has been frequently discussed and passed upon in many other states, this is the first time that it has been presented for our consideration. The leading case in the United States supporting defendant's theory of the law is that of Deni v. Pennsylvania R. Co., 181 Pa. 525, 37 A. 558, 59 Am. St. Rep. 676, which has been followed by a few of the other states, notably Wisconsin and Indiana, but a great majority of the states have held to the contrary. A leading case in support of plaintiff's right to maintain the action is that of Mulhall v. Fallon, 176 Mass. 266, 57 N.E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309, wherein the court, speaking by Mr. Chief Justice Holmes, says:

"In all cases the statute has the interest of the employés in mind. It is on their account that an action is given to the widow or next of kin. Whether the action is to be brought by them or by the administrator, the sum to be recovered is to be assessed with reference to the degree of culpability of the employer or negligent person. In other words, it is primarily a penalty for the protection of the life of a workman in this state. We cannot think that workmen were intended to be less protected if their mothers happen to live abroad, or less protected against sudden than against lingering death. In view of the very large amount of foreign labor employed in this state, we cannot believe that so large an exception was silently left to be read in."

In the comparatively recent case of Anustasakas v. International Contract Co., 51 Wash. 119, 98 P. 93, 21 L. R. A. (N. S.) 267, 130 Am. St. Rep. 1089, the Supreme Court of Washington in an interesting opinion, wherein are cited a large number of the cases supporting either contention, speaking by Mr. Justice Rudkin, says:

"The plea of alienage is not favored in law, and we are of opinion that the rule which permits nonresident aliens to maintain actions of this kind is supported by the weight of authority, and is more in harmony with the liberal cosmopolitan spirit of the age than the narrow provincial rule which would close our courts to widows and orphans solely because they happen to be nonresident aliens."

This case is also reported in 21 L. R. A. (N. S.) 267, where it is followed by an interesting note, citing practically all of the cases upon the subject.

At the conclusion of a brief and lucid discussion of the subject in 1 R. C. L. 825, is found this language:

"Since the statutes of the various states giving a right of action for negligent killing are copied from Lord Campbell's Act, the construction placed upon that act by a decision of the King's Bench in 1898 greatly influenced the courts which denied the right of action in the earlier cases; and, therefore, the disapproval of that decision in the later case before the same court, but by different judges, in 1901 would seem to weaken, to some extent at least, the weight of those earlier decisions of the state courts. It thus appears that the weight of authority, both in England and the United States, is that alienage is not a condition affecting a recovery for the death of a relative under the statutes allowing such an action."

We therefore adopt the doctrine that a nonresident alien is not precluded from maintaining the action.

Error is assigned upon the action of the court in refusing to strike from the record the testimony of the witness Mike Erstich. The substance of the testimony of this witness is to the effect that his father and decedent's father were first cousins; that decedent and himself were both born at Dinovo, Austria, a village containing about 300 houses; that their homes were separated by the...