Lamm v. Silver Falls Timber Co.

• Court: Oregon Supreme Court
• Writing for the Court: [133 Or. 524] ROSSMAN, J.
• Citation: Lamm v. Silver Falls Timber Co., 133 Or. 468, 291 P. 375 (Or. 1930)
• Decision Date: 09 September 1930
• Parties: LAMM v. SILVER FALLS TIMBER CO.

291 P. 375

133 Or. 468

LAMM v. SILVER FALLS TIMBER CO.

Supreme Court of Oregon, En Bank.

September 9, 1930

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 286 P. 527.

BROWN J., dissenting.

Carey & Kerr and Omar C. Spencer, all of Portland for appellant.

I. H Van Winkle, Atty. Gen., and Miles H. McKey, Asst. Atty. Gen for State Industrial Accident Commission.

Lord & Moulton, of Portland, for respondent Lamm.

ROSSMAN, J.

The petition for rehearing displays much evidence that plaintiff's counsel has again bestowed studious attention upon this case. The case is an important one not only on account of the severe injury to the plaintiff, upon which it is predicated, but also because of the consequences which attach to the solution of the difficult problem whether the plaintiff was a passenger upon the defendant's railroad or possessed the status of an employee returning to his work. Our decision adopted the latter view, and held that his redress must come from the industrial accident fund. While we remain satisfied that our conclusion was correct, yet in appreciation of the attention which counsel for the plaintiff have again given to this cause, we shall state briefly our conclusions upon several issues which they urge in their brief.

Plaintiff insists that our decision has discarded, without justification, the common-law definitions of the phrase "an accident arising in the scope of the employment." It is true that we have not given those definitions controlling effect; but we have not disregarded them. The parts which immediately precede and follow the language complained of show that in construing the act we have adopted the practice followed generally by other courts, and previously embraced by ourselves, by declining to look to the words "an accident arising out of and in the course of the employment" alone for a statement of those injuries which are compensable.

The plaintiff urges that the phrase "within the scope of his employment" was well defined in litigation wherein a servant brought an action of common-law negligence against his master, and that under the rules of statutory construction, we should apply the definition, written in those cases, to the phrase "accident arising out of and within the course of his employment." The courts, in applying the rule that an injury to be compensable must have been received while the employee was acting within the scope of his employment, experienced difficulty at times in determining the degree of proximity which must exist between the act, in the performance of which the servant was engaged at the moment of his injury, and the work which his master hired him to perform. Since the plaintiff sustained his injury while riding upon a railway car, operated by the defendant, we shall consider only the subdivision of the above common-law rule which the courts applied in similar instances.

From Labatt's Master and Servant (2d Ed.) § 1555 we quote:

"A servant who, at the time of the accident in suit, was being transported on a railway car or other vehicle furnished for the purpose of facilitating the performance of his work, is deemed to have been injured in the course of his employment, and therefore cannot recover if the injury was the result of risk known to and appreciated by him. * * * The inability of such employees to recover has been affirmed both where the accident occurred while they were journeying between two points at which work was to be done, and where it occurred while they were being transported from the place where they resided to the place where they worked."

In the succeeding language Mr. Labatt points out that the law regarded the employee as under the control of his master in the above situations; the mere fact that the latter permitted the servant to sit inert, and did not demand the performance of active duty during the transportation, was not deemed a negation of the right. Likewise the common law regarded the conveyance as an instrument which facilitated the performance of the work in hand like any tool or piece of machinery employed in the achievement of the desired result. But, according to Mr. Labatt, when the "injured person was travelling entirely for his own purposes, and the right of the master to exact the performance of services was not merely dormant, but wholly suspended," the defense of common employment was not available because under such circumstances the employee was not engaged in the course of his employment. We shall now consider several cases which the plaintiff especially urges upon our attention. They are: Knahtla v. Oregon Short Line, etc., R. R. Co., 21 Or. 136, 27 P. 91; Simmons v. Ore. R. R. Co., 41 Or. 151, 69 P. 440, 1022; Putnam v. Pacific Monthly Co., 68 Or. 36, 130 P. 986, 136 P. 835, 45 L. R. A. (N. S.) 338, L. R. A. 1915F, 782, Ann. Cas. 1915C, 256; Susznik v. Alger Log. Co., 76 Or. 189, 147 P. 922, 924, Ann. Cas. 1917C, 700; Stark v. State Industrial Acc. Com., 103 Or. 80, 204 P. 151; Wells v. Clark & Wilson Lbr. Co., 114 Or. 297, 235 P. 283; Brady v. Ore. Lbr. Co., 117 Or. 188, 243 P. 96, 45 A. L. R. 812, and Id., 118 Or. 15, 245 P. 732, 45 A. L. R. 812. We reviewed some of these cases in our previous decision. We did not overlook the Susznik Case, although inadvertently we failed to mention it in our decision. The first three of the above cases were brought to recover damages resulting from alleged infractions of the common-law standard of care owed by an employer; all three of those cases were determined before the enactment of the Workmen's Compensation Act (Or. L. § 6605 et seq., as amended). In the Knahtla Case the plaintiff was employed by the defendant as a section hand; he was being transported by it during working hours to a place where a land slide had deposited itself upon the right of way. Before that place was reached the train dropped into a ravine inflicting an injury upon the plaintiff. This court held that the plaintiff's status was that of an employee and not a passenger. In the Simmons Case the plaintiff was a fireman, upon the defendant's railroad, who made his headquarters at Kamelia. He was paid by the "run," receiving no compensation when not at work. Contributions previously made by him to his employer entitled him to medical attention. On the day in question he had taken a "lay off" so that he could visit the company's doctor at La Grande. While returning to Kamelia upon the defendant's train he was injured through its negligent operation. His transportation was provided by the defendant free of charge. The decision held that the injury did not occur in the course of his employment and that his status was that of a passenger. In the Putnam Case the injury befell the deceased while she was being transported in an elevator, operated by her employer, to the fourth floor of the building occupied by it. The injury occurred at 8:20 a. m.; work did not begin until 8:30 a. m. The decision held that the injury did not occur in the course of the employment.

It will be observed that in the first case the plaintiff was subject to the commands of his employer at the time the accident occurred; the train could have been stopped, and the men could have been ordered to work at any moment the employer chose. In the Simmons and Putnam Cases the injuries occurred when the employees were not subject to the commands of their employers. When the Putnam Case is compared with those cited in our previous decision, which applied the provisions of the Workmen's Compensation Act, it will be readily observed that the latter are more liberal in bringing an employee within the scope of his employment. Likewise when the language of Mr. Labatt, previously quoted, and the words of Chief Justice Robert S. Bean in the Simmons Case, wherein they defined the meaning of the phrase "within the scope of his employment," is compared with the language employed by Mr. Justice Henry L. Bean in Stark v. State Industrial Accident Commission. in defining what accidental injuries are compensable under the Workmen's Compensation Act, it will be observed that the law last mentioned is much more inclusive than the former. The courts evidently believe that since the purpose of Workmen's Compensation Acts is substantially different from an action of common-law negligence, this new legislation was intended to grant relief to a larger number of persons than were affected by the common-law action.

We come now to the Susznik, Stark, Wells, and Brady Cases, all of which construed or applied provisions of Workmen's Compensation Acts. In the Susznik Case the plaintiff sought employment from an agency; he received a ticket and was directed to the office of the defendant in Portland. The latter sent him to Skamakawa, Wash., where he boarded the defendant's train and was transported to the logging camp. Immediately upon arriving at the latter place he received the injury which constituted the subject-matter of the action. The complaint alleged that at the time of the accident the parties sustained to each other the relationship of passenger and carrier. The answer, after a series of denials, alleged that the plaintiff was an employee of the defendant at the time he received the injury and was therefore compelled to look to the Workmen's Compensation Act of the State of Washington for indemnity. The circuit court struck this defense from the answer. The plaintiff had a judgment from which the defendant appealed. Our decision held that the circuit court erred in entering that order because the "defendant was clearly entitled to plead and prove, if it could, that the relation of master and servant existed, and that, by reason of the Compensation...