Inwall v. Transpacific Lumber Co.

• Decision Date: 23 December 1940
• Citation: 108 P.2d 522,165 Or. 560
• Parties: INWALL <I>v.</I> TRANSPACIFIC LUMBER CO. ET AL.
• Court: Oregon Supreme Court

165 Or. 560

108 P.2d 522

INWALL

v. TRANSPACIFIC LUMBER CO. ET AL.

Supreme Court of Oregon.

Argued October 9, 1940.

Reversed December 23, 1940.

Rehearing denied January 28, 1941.

Workmen's Compensation

1. Where stockholders and officers of lumber company, terminal company owning a loading dock, and steamship company were virtually the same, and companies were engaged in the production, transportation, and loading of lumber produced by the lumber company, a stevedore employed by the steamship company who was injured on the loading dock by the negligence of an employee of the lumber company in operation of a lumber carrier sustained an injury due to the negligence "of a third person not in the same employ" as the stevedore, within the statute stating that under such circumstances the employee may bring an action against the wrongdoer, provided the accident did not occur upon the "premises over which the wrongdoer's employer had joint supervision and control" with the injured workman's employer.

Statutes

2. Statutory rules of construction cannot be employed for the purpose of importing ambiguity into language where no ambiguity exists.

Workmen's Compensation

3. Where lumber company, terminal company operating loading dock, and steamship company had virtually the same stockholders and officers, and were engaged in the production, transportation and loading of lumber produced by the lumber company, and a stevedore employed by the steamship company was injured by the negligence of employee of the lumber company in operation of a lumber carrier on the loading dock, stevedore receiving compensation from the steamship company was not entitled to maintain an action against the lumber company for injuries under the permissive provisions of the statute in view that the steamship company and lumber company had "joint supervision and control" of the loading dock and were "engaged in furtherance of a common enterprise" and in the accomplishment of "same or related purposes".

Workmen's Compensation

4. Under statute authorizing injured workman to bring action for injuries against third person not in same employ as workman, provided that accident did not occur on premises over which wrongdoer's employer had joint supervision and control with injured workman's employer and defining premises as place where both employers were engaged in furtherance of a common enterprise or the accomplishment of the same or related purpose, to

become "engaged in the furtherance of a common enterprise" it is not essential that the workman formally enter into an agreement to that effect, and it is only necessary that they occupy the same premises and perform component parts of a general undertaking.

Workmen's Compensation

5. Under statute authorizing injured workman to bring action for injuries against third person, provided that accident did not occur on premises over which wrongdoer's employer had joint supervision and control, in stevedore's action for injuries sustained when struck by lumber carrier on a wharf while engaged in loading lumber on steamship, burden was on lumber company to prove that the wharf upon which injury occurred was under the "joint supervision and control" of the lumber and steamship companies within the exceptive provision of the statute.

Trial

6. Evidence free from dispute and from which no conflicting inferences can be drawn presents no issue for the jury, and its disposition is for the judge.

Evidence

7. Evidence which does not come from a discredited source, is not discredited itself, or has not been contradicted by other evidence, must be believed.

Evidence

8. A guess or inference not founded on fact will not warrant recovery for injuries.

Workmen's Compensation

9. In stevedore's action against lumber company for injuries sustained when struck by defendant's lumber carrier on wharf while loading steamship owned by stevedore's employer which agreed to pay compensation, where undisputed evidence showed that wharf was under joint supervision and control of steamship company and lumber company, it was error to refuse instruction, in view of the statute, that steamship company and lumber company were at the time of the accident using wharf and premises in joint undertaking and that they were engaged in a common enterprise at time of accident, and that plaintiff could not maintain an action against the lumber company.

Appeal and error

10. A requested instruction that plaintiff could not maintain action and that the verdict should be for defendant was in the nature of a "motion for a directed verdict" and refusal to give it constituted an adequate foundation for an assignment of error relating thereto.

                  See 28 R.C.L. 738
                  71 C.J., Workmen's Compensation, § 1570
                

Department 1.

Appeal from Circuit Court, Curry County.

JAMES T. BRAND, Judge.

Action by Harry A. Inwall against the Transpacific Lumber Company and Bruce Cawley for injuries sustained while working as a stevedore for the Gorman Steamship Company upon a dock owned by the Transpacific Terminal Corporation. From a judgment for the plaintiff, defendants appeal.

REVERSED. REHEARING DENIED.

Frank S. Senn, of Portland (Seen & Recken, of Portland, and Collier H. Buffington, of Gold Beach, on the brief), for appellants.

Wilber Henderson, of Portland (Platt, Henderson, Warner & Cram, of Portland, Jay Moltzner, of Gold Beach, and Williamson & Wallace, of San Francisco, California, on the brief), for respondent.

ROSSMAN, J.

This is an appeal by the two defendants from a judgment of the circuit court, based upon a verdict, and entered in an action instituted by the plaintiff to recover damages for a personal injury suffered by him May 6, 1938, while he was working in the capacity of a stevedore for the Gorman Steamship Company upon a dock owned by the Transpacific Terminal Corporation. The defendants are the Transpacific Lumber Company and Bruce Cawley, one of its employees. At the time of the plaintiff's injury he, Cawley, the Gorman Steamship Company and the Transpacific Lumber Company, both of which are corporations, were subject to the provisions of the Workmen's Compensation Law, §§ 49-1801 to 49-1845, Oregon Code 1930. The defendants contend that at the time of the injury the Gorman Steamship Company and the Transpacific Lumber Company, plaintiff's employer, had joint supervision over the dock and that the two corporations were engaged at that time upon the dock in the furtherance of a common enterprise, all within the contemplation of the proviso clause of 1937 Session Laws, page 527, chapter 357, which provides that under such circumstances the injured employee must accept the compensation payable under the act and cannot maintain the negligence action otherwise available.

The stockholders of the Transpacific Lumber Company, the Transpacific Terminal Corporation and the Gorman Steamship Company are the same individuals. The three corporations have virtually the same officers. The Transpacific Terminal Corporation maintains a small dock at Port Orford. Three-fourths of a mile from it the Transpacific Lumber Company owns and operates a sawmill. The Gorman Steamship Company owns and operates a single vessel, the Port Orford. The lumber manufactured by the lumber company is transported by motor carriers operated by employees of the lumber company to the dock of the terminal corporation where stevedores in the employ of the steamship company transfer it by powerdriven gears into the hold of the Port Orford. The terminal corporation is engaged in no function other than that of owning the dock premises. The latter is used to no substantial extent by anyone except the steamship company and the lumber company. The steamship company transports no freight in any material quantity for any shipper other than the Transpacific Lumber Company.

May 6, 1938, while the plaintiff was working upon the dock, a carrier operated by the defendant Cawley collided with him, inflicting the injuries for which redress is sought in this action. It will be observed that the plaintiff's employer was the Gorman Steamship Company. Cawley was in the employ of the Transpacific Lumber Company, owner of the lumber carrier. The aforementioned section of 1937 Session Laws amends the part of our Workmen's Compensation Act which declares that every workman who, while in the employ of an employer subject to the act, sustains an injury by accident arising out of his employment and resulting in his injury, is entitled to receive from the Industrial Accident Fund the sum of money designated for that type of injury. The amendment makes the remaining part of the act read:

"* * * If the injury to a workman is due to the negligence or wrong of a third person not in the same employ, the injured workman, or if death result from the injury, his widow, * * * may elect to seek a remedy against such third person; provided, however, that no action shall be brought against any such third person if he or his workman causing the injury was, at the time of the injury, on premises over which he had joint supervision and control with the employer of the injured workman and was an employer subject to this act. `Premises', as used in this section, shall mean the place where the employer, or his workman causing the injury, and the employer of the injured workman, are engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in operation."

The dock upon which the plaintiff was injured was so small that the lumber company could store upon it, in anticipation of the Port Orford's arrival, only a small part of that vessel's capacity. Therefore, in order to provide a cargo for the steamship, carriers continuously brought lumber to the dock while loading operations were in progress. In order to facilitate loading, the carriers brought the lumber to the edge of the dock at the point which was immediately adjacent to the hatch through which the lumber...