Kowcun v. Bybee
| Decision Date | 25 November 1947 |
| Citation | 186 P.2d 790,182 Or. 271 |
| Parties | KOWCUN <I>v.</I> BYBEE |
| Court | Oregon Supreme Court |
1. The whistle which calls men to work in the morning and later signals the end of the day's labor does not always determine whether an injury which befell a workman arose "out of and in the course of his employment" within workmen's compensation law, nor does the workmen's compensation law select a threshold of the factory as the dividing line which decides whether or not an injury happened out of and in course of an employment. O.C.L.A §§ 102-1752, 102-1754.
See Words and Phrases, Permanent Edition, for all other definitions of "Out of and in Course of His Employment".
Workmen's compensation — Construing "out of and in the course of employment"
2. In construing the phrase "out of and in the course of employment," the courts consider the nature, conditions, obligations, and incidents of the employment, and if they find a casual connection between the employment and the injury, the requirements of the phrase have been met. O.C.L.A. §§ 102-1752, 102-1754.
Workmen's compensation — Parking lot
3. Where employer maintained a parking lot outside fence surrounding plant for convenience of employees and plaintiff employee was struck by the automobile of a coemployee when walking through the lot to reach his automobile, plaintiff's injury arose "out of and in course of employment" requiring him to proceed against the Industrial Accident Fund and precluding the maintenance of a common-law action against the coemployee. O.C.L.A. §§ 102-1752, 102-1754.
See Words and Phrases, Permanent Edition, for all other defitions of "Out of and in Course of Employment".
Workmen's compensation — Measure of recovery
4. When the workmen's compensation law entitles an injured workman to compensation, the compensation is the measure of his recovery and covers all consequences of his injury, such as aggravation. O.C.L.A. §§ 102-1701 to 102-1784.
Workmen's compensation — Compensation or damages
5. An injured workman cannot have both an award of compensation and an action for damages against a purported tortfeasor except in the specific instances mentioned in the workmen's compensation law. O.C.L.A. § 102-1752.
Workmen's compensation — Not in same employ
6. Under statute providing that if injury to workman is due to negligence of a third person "not in the same employ" the injured workman may elect to seek a remedy against third person, no election may be made to sue the third person if the third person is in the same employ as injured person, and the injured workman must be satisfied with compensation awarded him by Industrial Accident Commission. O.C.L.A. § 102-1752.
See Words and Phrases, Permanent Edition, for all other definitions of "Not in the Same Employ".
See Note, 159 A.L.R. 1395
71 C.J., Workmen's Compensation Acts, § 1565
Appeal from Circuit Court, Multnomah County.
A.S. Vosburg (Flegel, Vosburg, Joss & Hedlund, of Portland, on brief), for appellant.
F.S. Senn (Senn, Recken & Recken, of Portland, on brief), for respondent.
Before ROSSMAN, Chief Justice, and LUSK, KELLY, BAILEY and HAY, Justices.
Action by Helen Kowcun against A.O. Bybee for injuries, sustained when plaintiff was struck by automobile owned and operated by defendant. From judgment dismissing the action, the plaintiff appeals.
AFFIRMED.
This is an appeal by the plaintiff from a judgment of the circuit court in favor of the defendant which is based upon findings of fact and conclusions of law. The judgment dismissed the action under a holding that the only relief to which the plaintiff was entitled was the compensation provided by the Workmen's Compensation Law, § 102-1701 to and including § 102-1784 O.C.L.A. The action was predicated upon averments of negligence and a resulting injury sustained by the plaintiff April 11, 1944, when she was struck by an automobile owned and operated by the defendant. Both the plaintiff and the defendant were employees of the Oregon Shipbuilding Corporation which was the owner or lessee of the premises upon which the purported tort occurred. The Oregon Shipbuilding Corporation, which is not a party to this action, had not rejected the Workmen's Compensation Law (§§ 102-1712 and 102-1713, O.C.L.A.,) and, therefore, its employees, including the plaintiff and the defendant, as well as the Company itself, were subject to the act (§ 102-1728, O.C.L.A.,).
The sole assignment of error follows:
"The trial court erred in holding that under the evidence of this case the plaintiff was barred from maintaining the pending action against defendant and in entering a judgment order dismissing the action."
The facts presented by the record are uncontradicted. The Oregon Shipbuilding Corporation, to which we shall refer as the Company, was engaged in the building of ships in a plant which covered 375 acres of land immediately adjacent to Portland. On the west side of the tract was the Willamette river. Bounding a portion of the east side was North Burgard Street. The plant employed 32,000 employees who worked in three shifts. The hours of the plaintiff and the defendant were 5:30 p.m. to 1:30 a.m.
The Company maintained for the convenience of its employees a parking lot, 500 by 1,000 feet in dimension, which was hard surfaced and divided by bumper rails into lanes. No charge was made to the employees for the use of the parking lot which was a part of the 375-acre tract aforementioned. Guards in the Company's employ directed the movement of cars that entered the lot. The plaintiff sustained her injury in the parking lot when she was struck by the defendant's car. Adjoining the parking area on the west was the Company's shipbuilding yard. To the east was North Burgard Street. That thoroughfare was the only one which led to and from the plant. Thus, the parking area lay between the shipbuilding yard and North Burgard Street.
The north, south and east sides of the Company's shipbuilding yard were protected by a fence eight feet high. The west side of the yard was protected by the river. The fence and the river did not enclose the entire 375-acre tract but only the part which was devoted directly to shipbuilding purposes, that is, the shipbuilding yard. Outside of the enclosed area were the parking lot, the Administration building, Personnel building and similar facilities. The parking area, to the extent of its 500-foot side, lay directly adjacent to the east line of the shipbuilding yard. Only the fence separated the yard from the parking area. In a part of the fence which separated the parking area from the shipbuilding yard was a gate through which all employees who worked in the yard were required to enter and leave.
The plaintiff had been in the Company's employ for ten months prior to her injury. In going to and from the plant she rode in an automobile which belonged to some friends who also worked in the plant. April 10, the car in which she rode reached the employees' parking lot a few minutes before her shift began and was parked by the driver near the middle of the parking area. The plaintiff then walked through the parking lot to the entrance gate and went to work. At 1:30 a.m., April 11, the plaintiff's shift ended and after she had passed through the gate she walked along the paved parking area toward her car. When she was within 70 feet of it she was struck by the defendant's car. The defendant had been employed in the plant for more than a year and worked on the same shift as the plaintiff. He reached his car a few moments before the plaintiff came to the spot in question and was driving his car down one of the lanes of the parking area when he ran into the plaintiff.
The foregoing facts indicate that every employee who worked in the yard and who came by automobile walked for at least a short distance in the parking area after getting out of his car in order to reach the gate. He again walked in the area when, at the conclusion of his shift, he left the gate for his automobile. Maps of the plant which constitute a part of the record indicate that since North Burgard Street did not enter the 375-acre area but skirted it on the east, all employees who came to the plant by foot, automobile or public conveyance were required to traverse at least a part of the parking area on their way to and from the entry gate.
The plainitff has received no compensation from the Industrial Accident Commission for her injury. She swore that when she went to the Company's plant for the purpose of filing a claim for compensation someone told her that no compensation was payable. At any rate, she filed no claim.
The foregoing will suffice as a statement of the facts.
Based upon averments that the defendant drove his car in a negligent manner, the plaintiff instituted this action. The answer, in addition to denying negligence averred that (1) the Oregon Shipbuilding Corporation subscribed to the Workmen's Compensation Law; (2) the plaintiff's injury arose out of and in the course of her employment; and (3) the plaintiff's sole remedy was under the Workmen's Compensation Law.
Section 102-1752, O.C.L.A., says:
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