Klerk v. Tektronix, Inc.

• Decision Date: 15 June 1966
• Citation: 415 P.2d 510,244 Or. 10
• Parties: John N. KLERK, Appellant, v. TEKTRONIX, INC., Respondent.
• Court: Oregon Supreme Court

Page 510

415 P.2d 510

244 Or. 10

John N. KLERK, Appellant, v. TEKTRONIX, INC., Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 28, 1966.

Decided June 15, 1966.

Philip A. Levin, Portland, argued the cause for appellant. On the briefs were Pozzi, Levin & Wilson, Portland.

Howard M. Feuerstein, Portland, argued the cause for respondent. With him on the brief were George H. Fraser, Cleveland C. Cory and William M. McAllister, Portland.

Before PERRY, P.J., and SLOAN, GOODWIN, DENECKE, HOLMAN, LUSK and SCHWAB, JJ.

PERRY, Justice.

The plaintiff brought this action against his employer, the defendant Tektronix, Inc., to recover damages for personal injuries arising out of his employment.

The plaintiff alleged that over a period of three years he had been required to lift heavy 'bundles and bindings of paper' whereby he twisted and wrenched his back, causing serious personal injury.

Plaintiff alleged that the employer's negligence was due to the failure (1) to provide a sufficient number of workmen to perform the work assigned; (2) to supply ladders or walkways so that plaintiff would not be required to lift excessive weights onto the shelves; (3) in requiring plaintiff to lift excessive weights when the defendant knew or should have known that because of plaintiff's age he was incapable of performing this work; (4) in requiring the bundles to be of a size that they could not reasonably be handled by a person of plaintiff's age; (5) in constructing the shelving higher than the lift platform would travel; (6) in failing to provide a lift platform capable of going to the height of the shelves; (7) in constructing shelves which required plaintiff to lift bundles above his waist; (8) in failing to provide adequate floor space in the bindery room (9) in failing to use every device, care and precaution that is generally outlined above so plaintiff would not have had to lift the large bundles above his waist.

Defendant moved to strike each of the allegations of negligence and its motion was sustained. The plaintiff refused to plead further and judgment was entered for the defendant. From the judgment entered the plaintiff appeals.

The plaintiff contends that each of the allegations stricken state an act of negligence against the employer.

A difficulty is at once apparent in the posture of this case on appeal. A motion to strike is an attack upon sham or frivolous or irrelevant matter in the complaint, or an entire pleading that is sham, frivolous or irrelevant. ORS 16.100. Such a motion ordinarily does not test the sufficiency of a pleading; its sufficiency must be tested by demurrer. Hubbard v. Olsen-Roe Transfer Co., 110 Or. 618, 224 P. 636.

However, in those instances where a party has refused to plead further, it seems proper that this court may take cognizance of the fact that a complaint either does or does not state a cause of action upon its own motion and for the first time in this court. State ex rel. Moltzner v. Mott, 163 Or. 631, 97 P.2d 950; Wyatt v. Henderson, 31 Or. 48, 48 P. 790; Carver v. Jackson County, 22 Or. 62, 29 P. 77.

It is well established that actionable negligence arises only from the breach of a duty owed by one person to another, and that to state a cause of action for negligence the complaint must state the duty imposed or facts from which the law will imply a duty. Hendricks v. Sanford, 216 Or. 149, 337 P.2d 974.

Therefore, since the action for recovery can be based only on a breach of duty owed by the defendant employer to the plaintiff employee, either at common law or under the Employer's Liability Act, the question presented is whether the allegations...