Gray v. Hammond Lumber Co.
| Decision Date | 20 January 1925 |
| Citation | 113 Or. 570,232 P. 637 |
| Parties | GRAY v. HAMMOND LUMBER CO. ET AL. [*] |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.
Action by Jessie M. Gray, under the Employers' Liability Act for death of her minor son, against the Hammond Lumber Company and W. S. Lukins. Judgment for plaintiff, and defendants appeal, and plaintiff cross-appeals. Affirmed as to the defendant first named, and reversed as to the other.
This is an appeal from a judgment in the sum of $6,500, together with costs and disbursements, obtained by Jessie M. Gray against Hammond Lumber Company, a corporation, and W. S. Lukins, its superintendent, on account of the death of Harold Gray plaintiff's 17 year old son, on July 13, 1923, while in the employ of defendant corporation. Defendants, appealing assign error of the court in overruling their separate motions for an order to strike the amended complaint, in overruling their demurrers, and in entering judgment for plaintiff. Plaintiff, appealing, invokes the provisions of section 3c, art. 7, of our Constitution, as amended in 1910 and, in her brief, asserts "that the trial court erred in not applying the true rule of damages to the facts in the case."
Herbert S. Murphy, of Marshfield (Goss & Murphy, of Marshfield, and Arthur K. McMahan, of Albany, on the brief), for appellants.
John W. Kaste, of Portland (Kaste & Rand, of Portland, on the brief), for respondent.
Plaintiff, by her amended complaint, alleges, among other things, that the defendant Hammond Lumber Company is a corporation, and that defendant Lukins is its foreman, and in charge of the work in which Harold Gray and the defendant corporation were engaged at the time of the accident; that on the day of the accident the corporation was operating a sawmill at Mill City, Linn county, Or., in the manufacture of lumber from saw logs supplied by the corporation from its logging camp in that county, and that Gray was employed by the corporation in that logging camp; that while thus employed he was under the immediate supervision, control, and direction of Lukins, as superintendent in charge of the work of the camp; that on the above-mentioned day, while the corporation was engaged in moving a donkey engine up a steep mountain side by its own power, using for that purpose a wire rope or choker with which to anchor a block or pulley to a stump, and, while Harold Gray was in the performance of his duties, through the negligence of the defendants herein, the wire rope broke, permitting the engine "to crash or fall or tumble down the slope or side of said mountain," crushing and killing Harold Gray.
Plaintiff alleged that at the time of the accident the corporation, its foreman, and its employees, including Gray, were engaged in a hazardous occupation, within the purview of the Workmen's Compensation Law of Oregon, to wit, Or. L. §§ 6605-6659, and that prior to that time the corporation had, by its affirmative action, rejected the provisions, protections, and benefits of that act; further, that at the time of his death, Gray was 17 years of age, in good health, and in the enjoyment of all his physical and mental faculties; that he was capable of, and was, earning $4.40 per day, and had an expectancy of 50 years.
The motions were overruled, as were the demurrers. Defendants, answering, denied that Gray was killed through the negligence of defendants, or either of them, and filed further and separate answers and defenses, in which, among other things, they averred that Gray was negligent in failing to occupy a safe position while the donkey engine and sled were being moved, and that the "accident and injuries to said Gray were wholly unavoidable, accidental, and unforeseen, and could not have been prevented by the exercise of that degree of care required by law." Plaintiff replied, and, on the trial of the case, was awarded a judgment against the defendants for the sum of $6,500, together with her costs and disbursements.
Defendants complain that the complaint alleges two causes of action not separately stated, and that several causes of action have been improperly united therein. Plaintiff's complaint contains the usual and necessary allegations to bring the case within the embrace of the Employers' Liability Act (Or. L. §§ 6785-6791), and this action is maintained under the provisions thereof.
When statutes are enacted which undertake to declare rights and establish a standard of conduct for their protection, any acts or omissions in violation of such statute, which destroy the enjoyment of such rights, may be treated as legal wrongs or torts. 38 Cyc. 415.
According to the complaint, the defendant corporation, while acting through its superintendent, violated a statutory duty owing to its employee, Harold Gray. Under its averments, they are jointly charged with the omission of a duty to the boy, imposed by law. The theory of the plaintiff is that the Employer's Liability Law confers a right of action against the superintendent, as well as against the employer. If this were so, this action could rightfully have been maintained against either, or both, of the alleged joint tort-feasors, and the joinder of the superintendent with the corporation in a single cause of action would have been proper. Harvey v. Corbett, 77 Or. 51, 61, 62, 150 P. 263; Cauldwell v. Bingham & Shelley Co., 84 Or. 257, 155 P. 190, 163 P. 827; 38 Cyc. 490; 1 Kerr's Pleading and Practice in the Western States, 674; Fallon v. United Railroads, 28 Cal.App. 60, 151 P. 290; Whalen v. Pa. R. Co., 73 N. J. Law, 192, 63 A. 993; 1 Kerr's Pleading and Practice in the Western States, 701, and authorities cited in notes.
The plaintiff avers one "good cause" of action. She does not attempt to assert a cause of action in a representative capacity. Further on in this opinion we shall refer to the complaint with reference to the action against the superintendent. The complaint is also challenged on the ground that the plaintiff has no capacity to sue.
Under our Code, a demurrer for want of capacity to sue must be directed to some disability of plaintiff appearing upon the face of the complaint. Or. L. § 68; Pomeroy Code Remedies, § 208; Bliss, Code Pleading, § 407; Miller v. Luco, 80 Cal. 257, 22 P. 195; Swamp & Overflowed Land Dist. No. 110 v. Feck, 60 Cal. 405; Campbell v. Campbell, 121 Ind. 178, 23 N.E. 81. The want of capacity to sue does not affirmatively appear in this complaint, and it is not enough that the complaint fails to aver facts showing capacity. 31 Cyc. 296, 297.
"So a demurrer on the ground that plaintiff has no legal capacity to sue cannot be sustained, unless it affirmatively appears on the face of the complaint that he has not such capacity." 31 Cyc. 324, 325.
The demurrer likewise challenges the sufficiency of the complaint, for the reason that it fails to state facts sufficient to constitute a cause of action. The statute gives the right of action and provides the remedy, and this action can be maintained under that statute, subject to the conditions and limitations imposed thereby.
"And where the statute, in designating the beneficiaries, indicates a preference according to the degree of relationship to the deceased, the action must be brought by or in behalf of the beneficiaries in the order preferred, and where there exists a preferred beneficiary no other beneficiary not thus preferred is entitled to maintain the action." L. R. A. 1916E, 160.
And again:
"If the act gives a right of action first to a designated class of beneficiaries, and if there be none of that class then to another class, in an action on behalf of beneficiaries of the latter class, the nonexistence of beneficiaries of the first class must be averred." Death by Wrongful Act, Tiffany (2d Ed.) § 182.
In this court the defendants for the first time attack the complaint upon the specific ground that it fails to aver that the plaintiff is the particular survivor, to whom the right of action is given by section 6788, Oregon Laws. The objection that a complaint fails to state facts sufficient to constitute a cause of suit is never waived. Duby et al. v. Hicks, 105 Or. 27, 209 P. 156, and local citations there collected. True, the complaint fails to negative the fact that the deceased 17 year old boy left surviving him widow, children, or other lineal heirs. The action, as we have seen, was prosecuted by the mother in accordance with a right and remedy provided by statute. She alleged that her son was 17 years old at the time of the accident, and, upon proof of this allegation, the court drew the inference, and found, as a fact, that the lad was unmarried.
Reasonable inferences drawn from affirmative facts proved are evidence and not presumptions built upon other presumptions. Hardwick v. Wabash R. Co., 181 Mo.App. 156, 168 S.W. 328. The defendants filed a general demurrer to the sufficiency of the complaint, but failed to suggest, by argument or otherwise, their contention that the mother is not shown by that pleading to be the...
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Gray v. Hammond Lumber Co.
...2. Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge. On petition for rehearing. Petition denied. For former opinion, see 232 P. 637. Kaste Rand, of Portland, opposed. BROWN, J. This action is maintained under the provisions of the Employers' Liability Law (Or. L. §§ 6785-......