Johnson v. Timber Structures

• Decision Date: 30 March 1955
• Citation: 203 Or. 670,281 P.2d 723
• Parties: Harvey M. JOHNSON, Appellant, v. TIMBER STRUCTURES, Inc., a corporation, Respondent.
• Court: Oregon Supreme Court

Page 723

281 P.2d 723

203 Or. 670

Harvey M. JOHNSON, Appellant, v. TIMBER STRUCTURES, Inc., a corporation, Respondent.

Supreme Court of Oregon, En Banc.

Argued and Submitted Feb. 9, 1955.

Reargued and Submitted March 3, 1955.

Decided March 30, 1955.

W. A. Franklin, Portland, argued the cause for appellant. On the brief were Anderson, Franklin & Landye, Portland.

Howard K. Beebe, Portland, argued the cause for respondent. With him on the brief were Maguire, Shields, Morrison & Bailey, Portland.

LATOURETTE, Justice.

Plaintiff Harvey M. Johnson brought action against Timber Structures, Inc., a corporation, to recover damages for injuries alleged to have been suffered through the negligence of defendant. Based upon stipulated facts the court entered judgment in favor of defendant. Plaintiff appeals.

At the time of the accident plaintiff was working for Volney Felt Mills, Inc. While delivering sawdust to the premises of Volney Felt Mills, Inc., a driver for defendant Timber Structures, Inc., bracked his truck into and against plaintiff and knocked him to the floor causing the injuries complained of. At the time all parties were under the provisions of the Workmen's Compensation Act.

Defendant as a defense to the action claims that at the time of the injury it was on premises over which it had joint supervision and control with plaintiff's employer, bringing it immunity under ORS 656.154, which is as follows:

'(1) 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 results from the injury, his widow, children or other dependents, as the case may be, may elect to seek a remedy against such third person. However, 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 ORS 656.002 to 656.590.

'(2) As used in this section, 'premises' means 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 stipulated facts necessary for a determination of this matter are:

'That at all times mentioned in plaintiff's complaint Volney Felt Mills, Inc., was a corporation and was an employer subject to and had accepted the Workmen's Compensation Law of the State of Oregon. Said Volney Felt Mills, Inc., was engaged in the manufacture of roofing felt.

'Defendant Timber Structures, Inc., as well as one other seller sold and delivered in trucks sawdust to said Volney Felt Mills, Inc., which said sawdust was processed into wood flour and used as a necessary ingredient in the manufacture of said roofing felt.

'At the time of the injury sustained or alleged by plaintiff, plaintiff was an employee of Volney Felt Mills, Inc., and the accident arose out of and occurred in the course and scope of his said employment. * * *

'Plaintiff's duties in his said employment were to meet the trucks of the defendant and the other seller as they would come upon the premises of Volney Felt Mills, Inc., inspect said sawdust and accept same if it met certain requirements set by said Volney Felt Mills, Inc.; after acceptance of said sawdust he would direct the drivers where to dump said sawdust; if said sawdust were accepted he would sign a receipt therefor; and thereafter plaintiff would use a sawdust fork to remove said sawdust into a pneumatic sawdust 'sucker' which transported the sawdust to a grinding machine which converted said sawdust into wood flour.

'At the time and place of the accident alleged in plaintiff's complaint, defendant was so delivering to said Volney Felt Mills, Inc., about three or four loads of such sawdust per day.

'Plaintiff's duties required him to be upon said premises and to be about such trucks in order to perform his aforesaid duties and at the time of said accident only plaintiff and Elwood J. Rollins, a truck driver employed by Timber Structures, Inc., were present upon the portion of the premises where said sawdust was dumped as aforesaid.

'The place where said sawdust was dumped was in a covered and enclosed portion of the said Volney Felt Mills, Inc., plant, which had two doors through which the sawdust trucks of defendant and the other seller could enter.'

To determine whether an action will lie against defendant it will be necessary to decide whether or not at the time of the accident, first, defendant had joint supervision and control over the premises with plaintiff's employer, and second, were both employers engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in operation? If defendant fails to establish either of them it may be subjected to liability. Atkinson v. Fairview Dairy Farms, 190 Or. 1, 222 P.2d 732; Inwall v. Transpacific Lumber Co., 165 Or. 560, 108 P.2d 522.

The act itself does not define joint supervision and control. These words are not of precise import although Webster defines 'supervision' as the 'Act or occupation of supervising; inspection; oversight.' And in Fluet v. McCabe, 299 Mass. 173, 12 N.E.2d 89, 93, we read that 'the words 'supervision and control' comprehend an exercise of restraint or direction, of authority over, of domination and command.' Factual situations differ in cases and no hidebound rule can therefore be laid down.

In the instant case there is, in our opinion, not one iota of evidence indicating that the defendant or its driver had any supervision and control of the premises in question. The defendant was selling sawdust to the Volney Felt Mills. Its driver delivered the sawdust in defendant's truck to the premises in question and remained inactive while plaintiff inspected, accepted or rejected the sawdust. If accepted the driver received a receipt for the same from plaintiff. Plaintiff then directed the driver to dump the sawdust in a place selected by plaintiff. The driver then departed from the premises. Defendant in no wise exercised any restraint, direction, authority, domination or command over the premises in question. The only control and supervision on the part of the truck driver was that of the truck itself. The fact that the truck occupied the premises is no evidence that the driver exercised control and supervision over the same. It might just as well be argued that a 'Fuller brush man' exercises control and supervision over madam's premises when he delivers a whisk broom to her.

Defendant relies on Brown v. Underwood Lumber Co., 172 Or. 261, 141 P.2d 527, and the Inwall and Atkinson cases, supra. All these cases can be distinguished. In the Brown case, Brown, while scaling logs for the Warner Company, was killed when a log rolled off a truck as it was being loaded by the defendant Underwood Lumber Co. The Warner Company owned the premises where the logs were being loaded onto the truck by the defendant. The Warner Company had domination and control of the premises with the exception of a license given to defendant to use the same for loading purposes. The main question in the case was whether or not the Warner Company and plaintiff were under the Workmen's Compensation Act, which depended upon whether or not Brown was engaged in a logging operation at the time he was killed. Here, then, was a clear case of joint control and supervision of the premises by both parties.

The Atkinson case, like the instant one, involved delivery of an essential ingredient in the operation of the defendant dairy. But in that case the driver of the dairy truck, who was the injured party, did much more than just deposit the milk as he was directed and then depart. He was engaged on the premises in a number of respects in joint activity with the dairy's employee.

The facts in the Inwall case correspond more nearly with those in the present case. However, there is a marked distinction. In that case plaintiff was a stevedore whose duties were to assist other employees in loading lumber on a ship belonging to his employer, the Gorman Steamship Company. Defendant Transpacific Lumber Company was engaged in delivering lumber to the dock belonging to a third company, Transpacific Terminal Corporation, to be loaded on the aforesaid ship. The stockholders of the three corporations were the same individuals and the officers of all of them were virtually the same. The Lumber Company and the Steamship Company were engaged in the general undertaking of shipping lumber. There was no particular supervision and control of the dock in either party, each having its duties to perform in the furtherance of the common enterprise. When the ship was not in port, the defendant company brought the lumber to the dock and stored it in anticipation of the ship's arrival, but when the ship was berthed plaintiff and his companions stepped aside as the defendant deposited the lumber on the dock. It will thus be seen that both companies had supervision and control of the premises in question.

In view of the foregoing the court erred in finding for the defendant.

Reversed.

TOOZE, Justice (specially concurring).

I fully concur in the result reached in the opinion of Justice Latourette. The conclusion therein is based upon a consideration of the words 'joint supervision and control' as used in subd. (1) of ORS 656.154. However, that subdivision of the statute uses the word 'premises' in connection with the words 'joint supervision and control', and the word 'premises' is defined in subd. (2). It is this definition of 'premises' that has caused much difficulty on the part of the courts in construing the statute. The stumbling block has been in the meaning of the phrase 'are engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in...