Kemp v. UTAH CONSTRUCTION AND MINING COMPANY

• Decision Date: 18 November 1963
• Docket Number: Civ. No. 63-441.
• Parties: Charles E. KEMP, Plaintiff, v. UTAH CONSTRUCTION AND MINING COMPANY, a corporation, and Joe Costello, Defendants.
• Court: U.S. District Court — District of Oregon

225 F. Supp. 250

Charles E. KEMP, Plaintiff, v. UTAH CONSTRUCTION AND MINING COMPANY, a corporation, and Joe Costello, Defendants.

Civ. No. 63-441.

United States District Court D. Oregon.

November 18, 1963.

A. J. Morris, of Bailey, Hoffman, Spencer & Morris, Eugene, Or., for plaintiff.

George H. Fraser, of Rockwood, Davies, Biggs, Strayer & Stoel, Portland, Or., for defendants.

KILKENNY, District Judge.

Poised for decision, on plaintiff's motion to remand, is the question of whether certain rules and regulations promulgated by the Oregon State Industrial Accident Commission cast civil liability on the defendant, Costello, a foreman of the corporate defendant.

Plaintiff, while employed by Utah, was assigned by Costello to assist in the repair of a machine. Plaintiff used his own tools. In the course of the repair, the plaintiff was required to remove a bearing, and in so doing placed his metal punch upon the bearing. A co-worker, in the line of his duties, hit the punch with a hammer, owned by plaintiff, thus causing a metal object to fly and embed itself in plaintiff's right eye.

If there is no liability, then the joinder of Costello would be viewed as improvident and the plaintiff's motion to remand should be denied.

Clearly, Costello would not be liable under the Oregon Employers' Liability Act.¹ Gray v. Hammond Lumber Company, 113 Or. 570, 232 P. 637, 233 P. 561, 234 P. 261 (1925); Thomas v. Foglio, 225 Or. 540, 545, 258 P.2d 1066 (1961); Snodgrass v. Risley, 196 Or. 506, 530, 250 P.2d 392 (1952).

The Act specifically names a foreman as one of the persons responsible for compliance with the safety provisions of the Act. Nevertheless, the Oregon Court in the Gray case held that there was no civil liability on the part of a foreman.

To escape the effect of these decisions the plaintiff argues that his complaint states a cause of action at common law, and that the provisions of the Employers' Safety Act² and the rules and regulations promulgated thereunder, place a liability on a foreman, such as Costello.

Although the Safety Act is not mentioned in the Gray case, that case was decided many years after the effective date of the Act, and I must assume that the Oregon Court was familiar with all legislation touching the controversy then under consideration and that consideration was given to the provisions of the Act.

The Safety Act is independent of the Employers' Liability Act. Hillman v. North Wasco County P.U.D., 213 Or. 264, 323 P.2d 664. It is penal in nature. The embrace of such an act cannot reach beyond the plain import of the language used. Hillman v. North Wasco County P.U.D., supra.

The sections of the Safety Act under scrutiny³ are, in general, nothing more than a statutory declaration of the common law. Shelton v. Paris, 199 Or. 365, 366, 261 P.2d 856; O'Neal v. Meier & Frank Co., 226 Or. 108, 259 P.2d 101.

The authority vested in the Commission by ORS 654.035, with reference to promulgating rules and regulations, is quite broad in scope. Power is given to:

"(1) Declare and prescribe what safety devices, safeguards or other means or methods of protection are well adapted to render the employes of every employment and place of employment safe as required by law or lawful order.

"(2) Fix reasonable standards and prescribe, modify and enforce such reasonable orders for the adoption, installation, use, maintenance and operation of safety devices, safeguards and other means or methods of protection, to be as nearly uniform as possible, as may be necessary to carry out all laws and lawful orders relative to the protection of the life and safety of employes in employment and places of employment.

"(3) * * *

"(4) Require the performance of any other act which the protection of the life and safety of employes in employments and places of employment may demand."

ORS 654.060 makes it the duty of every employer, employe and other person to obey and comply with the requirements of every order, decision, direction, rule or regulations as prescribed by the Commission, in connection with the protection of the life and safety of employees. Acting under the color of the authority granted by ORS 654.035, The Commission promulgated a basic safety code, under the provisions of which,⁴ many specific duties were imposed on foremen, such as the defendant, Costello. Plaintiff urges that these rules and regulations imposed certain legal duties on foremen, that Costello failed to perform the duties as required by the regulations and that such failure created a personal liability.

The mandate of ORS 654.010 is directed toward the employer. No mention is made of an employee such as the defendant, Costello. This type of legislation is similar, in character, to the Oregon Employers' Liability Act, in placing the initial responsibility on the employer. However, the latter goes beyond the provisions of the Act with which I am concerned, in providing that the foreman, together with others having charge of the work, should see to a compliance with the requirements of the Act. Each Act has a criminal penalty. Prior to 1920, the year in which the Safety Act was passed, the Oregon Supreme Court, in numerous cases, held that there was no civil liability on a foreman or superintendent under the provisions of the Liability Act. Lawton v. Morgan, Fliedner & Boyce, 66 Or. 292, 131 P. 314, 134 P. 1037; Hoag v. Washington-Oregon Corporation, 75 Or. 588, 594, 596, 144 P. 574, 147 P. 756; Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 317, 350, 173 P. 267, 175 P. 659, 176 P. 589. The question was conclusively put to rest in Gray v. Hammond Lumber Co., supra. I must assume that the Legislature, in adopting the Safety Act, was familiar with these decisions, and intended that the 1920 Act should receive the same construction as that placed on the earlier legislation by the Supreme Court. DeWitt v. Rissman, 218 Or. 549, 346 P.2d 104; State v. Raper, 174 Or. 252, 149 P.2d 165.

That the Legislature, in passing the Safety Act, was familiar with the distinction between criminal punishment and civil liability, is made manifest by the language of ORS 654.050, where provision was made for both. Consequently, the Oregon Supreme Court, if faced with the construction of the Safety Act, would probably hold there was nothing in the legislation to indicate an intention to create a civil liability on the part of a foreman. Since the legislation was not sufficiently broad to create such a liability, such power or authority was completely beyond the power of the Commission, and, in my opinion, the Commission by promulgation of the Rules and Regulations never intended to place a foreman under this burden.

If ORS 654.020 is construed to authorize and empower the Commission to promulgate rules and regulations casting civil liability on an employee under the language "no employe shall * * * fail to do every other thing reasonably necessary to protect the life and safety of such employes" both the statute and the regulations would be faced with serious Constitutional problems. The language must be read in the light of the "other thing" mentioned in the body...