Johnstone v. Chapman Timber Co.

• Decision Date: 28 March 1916
• Parties: JOHNSTONE v. CHAPMAN TIMBER CO. ET AL.
• Court: Oregon Supreme Court

156 P. 286

79 Or. 674

JOHNSTONE v. CHAPMAN TIMBER CO. ET AL.

Supreme Court of Oregon

March 28, 1916

Department 2.

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

Action by Jack Johnstone against the Chapman Timber Company, a corporation, and another. From a judgment for plaintiff defendants appeal. Reversed and remanded.

This is an action for personal injuries. From a judgment for $2,500 on a verdict in favor of plaintiff, defendants appeal.

It appears that at the time of the accident which occurred on November 21, 1912, the defendant Chapman Timber Company was operating a logging camp near Scappoose, Or., in conducting which it used two certain donkey engines, one called a "yarder," and the other a "roader." The yarder would drug the logs from the woods to the main road where the roader would then pull them to the rollway. Each donkey engine had a set of cables composed of a main line and a trip line, the latter being used to draw the main line back to the woods after a log had been hauled in. The two lines formed a sort of endless chain. The plaintiff was known as a "chaser"; it being his duty to assist in taking the cable from the log after it had been pulled in to the main roadway, placing thereon the cable of the roader, and signaling to have the log dragged in. The yarder drew the logs to what was called the delivery point. On this there was also a chaser, one Jack Moon. His duties were the same as those of the plaintiff; the two often assisting each other in taking the cables off the logs. At the time the plaintiff was injured Moon was some ten feet from him. A log had just been hauled from the woods to the delivery point by the yarder from which plaintiff undertook to take the choker and attach the cable from the roader to the log. To do this he stepped between the log and a stump, and while at work another log was pulled in which struck the back end of the one he was working upon, pushing it forward and catching his leg between it and the stump, injuring him very severely. Plaintiff alleges as negligence that Moon did not warn him of the danger. After the accident plaintiff was taken to a hospital in Portland, and was treated by the company's doctor. On March 18, 1913, he brought an action against the Chapman Timber Company for the injuries which he received on the date mentioned. His attorneys at that time were Richards &amp Richards. In his complaint he set up practically the same cause of action as he here sets out. At that time the doctor had succeeded in saving his leg, though plaintiff alleged that he would be permanently injured. In consideration of the sum of $750, the plaintiff made a settlement with the Chapman Timber Company on April 30, 1913, and signed a release freeing it from all claims, demands, and rights of action. This instrument was admitted by the plaintiff in his complaint. On the same day a stipulation was entered into between his counsel and that of the defendant company whereby on May 2, 1913, the action was dismissed with prejudice to any future action. On July 8, 1914, plaintiff brought the action on which he now seeks to recover damages. In the complaint therein he admits having signed the release and that settlement was made, but contends that at that time he was not informed of the true condition of his leg. He alleges that the company doctor who was treating him had told him that it would be saved, and, relying upon such representation, he settled for $750; that afterwards he was compelled to have several operations performed, and finally the leg was amputated at the hip. The plaintiff offered to credit the $750 on any amount which he might receive on the verdict. After he was injured the Chapman Timber Company dissolved, and the Nehalem Timber & Logging Company took over its property. Plaintiff brings this action against both companies, alleging that the latter took over the assets of the former. The answer puts in issue the material charges of the complaint, and avers as affirmative defenses: (1) Assumption of risk; (2) fellow servant; (3) contributory negligence and unavoidable accident; (4) the settlement as a complete adjustment and that Johnstone has not tendered back the $750; and (5) res adjudicata in that plaintiff had an action pending at the time he made the settlement and the action was dismissed with prejudice. The answer attaches the pleadings and judgment in the former case with all the proceedings as exhibits.

In his complaint plaintiff as a reason for avoiding the settlement and release alleges:

"That after plaintiff was confined in the hospital he was subjected to several surgical operations on his said injured leg, and was given large and frequent quantities of opiates, sedatives, and medicines to allay pain, and while in such condition the defendants, acting through the physician in charge of plaintiff, which physician was selected by the defendant company, and not by plaintiff represented and stated to plaintiff that he would fully recover the use of his said right leg and would be an able-bodied, strong man; that this plaintiff consulted with no other physician save and except the defendant company's physician, to wit, Dr. Zan; that plaintiff is unskilled in such matters, and did not know his true condition, but relied upon the statements of said Doctor Zan, and believed the same to be true, and while believing the same to be true the defendants induced plaintiff, well knowing that plaintiff relied upon said physician, to make an attempted settlement for the injuries sustained by him, and the defendant company thereupon paid the plaintiff the sum of $750, and took from this plaintiff a purported release and satisfaction in full discharge of all injuries caused to plaintiff as stated, and thereafter the condition of plaintiff's leg was such that eight additional operations were performed on plaintiff, and at the ninth operation his leg was amputated at the hip as herein set forth; that plaintiff did not know his true condition nor the condition of his leg at the time of executing the alleged release above set forth, and that the representations to plaintiff that he would soon recover and that he would have the normal use of his leg were false and untrue; that plaintiff did not know the falsity thereof until after the settlement had been made, and except and for such statements plaintiff would not have made the alleged and pretended settlement; that said settlement was procured by the misrepresentation, fraud, and deceit of the defendant, acting through defendant company's said physician as hereinbefore alleged;" and that the consideration of $750 was and is totally inadequate to pay plaintiff for the losses, injuries, and damages sustained by him.

F. S. Senn, of Portland (Senn, Ekwall & Recken, of Portland, on the brief), for appellants. Isham N. Smith, of Portland (Logan & Smith, of Portland, on the brief), for respondent.

BEAN J. (after stating the facts as above)....