Hoffman v. Broadway Hazelwood

• Decision Date: 19 April 1932
• Citation: 10 P.2d 349,139 Or. 519
• Parties: HOFFMAN v. BROADWAY HAZELWOOD.
• Court: Oregon Supreme Court

10 P.2d 349

139 Or. 519

HOFFMAN v. BROADWAY HAZELWOOD.

Supreme Court of Oregon

April 19, 1932

Department 2.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by Betty Hoffman against Broadway Hazelwood. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

Arthur I. Moulton, of Portland (Lord & Moulton, of Portland, on the brief), for respondent.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for appellant.

BELT J.

This is a personal injury action. The defendant corporation owns and operates a large restaurant and confectionery business on Broadway in the city of Portland. Plaintiff, at time of injury, was an employee in the bakery department. It was her business to bake biscuits, graham gems, and potatoes. Food prepared in a room where she alone worked was taken to the kitchen and placed in the ovens. In going from the room where the food was prepared to the kitchen, it was necessary every few minutes for her to go along an aisle or way about five feet wide, near the place where others worked in washing dishes, pots, and various kinds of cooking utensils. After the pots and kettles were washed, the greasy water and refuse was thrown into a garbage can located near the way over which plaintiff passed. It is the contention of plaintiff that this garbage can was defective in that greasy water leaked therefrom onto the tile floor of the aisle, causing it to become slippery and dangerous. She asserts that in continually passing over this greasy floor the soles of her shoes became slick and greasy and that she complained of this condition to the chef who, in effect, promised to get a garbage can that would not leak. She put a potato sack on the floor to absorb the greasy water, but, on complaint of the chef, this was removed. While entering the room where she prepared the food and which she had recently scrubbed, she slipped and fell on the wet tile floor, causing the injury on which this action is based.

Defendant in substance, is charged with negligence in failing to furnish a garbage can which did not leak, and in permitting grease to flow onto the tile floor causing the way over which plaintiff was obliged to pass to become dangerous.

Defendant denied negligence, and introduced testimony tending to show that the tile floor was scrubbed and cleaned three or four times each day, and that the garbage can did not leak. The chef enthusiastically testified: "The floor was so clean you could eat off it. It is that way all the time." Defendant alleged, as affirmative defenses, contributory negligence and assumption of risk.

Verdict and judgment were had for plaintiff in the sum of $7,100.

Defendant earnestly urges that this is a common-law action, and that the court should have declared, as a matter of law, that plaintiff fully understood and appreciated the risk and danger of her employment. The plaintiff, in answer to this contention, in substance asserts: (1) That the Employers' Liability Act (Code 1930, § 49-1701 et seq.) controls, and therefore, assumption of risk is not a defense and contributory negligence can be considered only in fixing the amount of damages; (2) that the work in which plaintiff was engaged comes within the provisions of the Workmen's Compensation Act (Code 1930, § 49-1801 et seq.), and, since the defendant filed notice of its rejection of the act, it could not avail itself of the common-law defenses of assumption of risk and contributory negligence; and (3), if it be assumed that the action is governed by the common law, in view of the implied promise of the defendant to furnish a suitable garbage can and to remove the dangerous condition of which plaintiff complained, assumption of risk would not be a defense.

The trial court submitted to the jury the question as to whether the plaintiff at the time of her injury was engaged in a work involving a risk or danger and instructed that, if they did so find, the Employers' Liability Act would apply, but that, if this question were answered in the negative plaintiff would not be entitled to recover. The offer by plaintiff to prove that the defendant had given notice of its refusal to comply with the Workmen's Compensation Act was rejected.

In our opinion this is a common-law action, and the Employers' Liability Act has no application. It is clear that the work in which plaintiff was engaged does not come within the provisions of section 1 of the act (Code 1930, § 49-1701). If the act applies, it is by reason of the last clause thereof wherein it is provided: "*** And generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices."

In Isaacson v. Beaver Logging Co., 73 Or. 28, 143 P. 938; Schulte v. Pacific Paper Co., 67 Or. 334, 135 P. 527, 136 P. 5, and Schaedler v. Columbia Contract Co., 67 Or. 412, 135 P. 536, it was held that the act covered only those cases of employers' liability enumerated therein; and that the "and generally" clause amounted only to a reiteration of the preceding provisions of the section. However, this court in later cases has given a much more liberal interpretation of the act and has held consistently that the cases of employers' liability are not limited to those specified in section 1. Bottig v. Polsky, 101 Or. 530, 201 P. 188, and cases therein cited. In O'Neill v. Odd Fellows Home, 89 Or. 382, 174 P. 148, 150, Mr. Justice Bean, speaking for the court, said: "The whole language of the act denotes that the kind of employment thereby protected is that which is beset with danger, the hazardous, dangerous employments similar to those enumerated in the act, or which under the circumstances or manner in which it is being executed is rendered dangerous, within the meaning of the act."

Mr. Justice Harris, in Bottig v. Polsky, supra, said: "*** It will be impossible to expand the meaning of the statute beyond the boundaries marked out in O'Neill v. Odd Fellows Home, 89 Or. 382, 174 P. 148. It is now too late to enter into any debate as to whether or not the act applies to an employment which, although ordinarily nonhazardous, is in a given instance made dangerous by unusual and peculiar conditions; for that question is foreclosed by numerous precedents, and the rule of stare decisis applies with full force."

In the recent case of Freeman v. Wentworth & Irwin (Or.) 7 P.(2d) 796, 801, Mr. Justice Rossman said: "The only employments protected by this clause are those which are of the general kind mentioned specifically in preceding parts of the act, that is, those which men commonly regard as dangerous and hazardous. Bottig v. Polsky, 101 Or. 530, 201 P. 188."

Applying the rule announced in these later cases, we conclude that the work in which plaintiff was engaged did not involve a risk or danger within the meaning of the act, and therefore, it was error to submit that question to the jury. If the facts in the instant case come within the provisions of the Employers' Liability Act, it is difficult to conceive of any case wherein the relation of master and servant exists which would...