Lamm v. Silver Falls Timber Co.

• Decision Date: 18 March 1930
• Citation: 286 P. 527,133 Or. 468
• Parties: LAMM v. SILVER FALLS TIMBER CO.
• Court: Oregon Supreme Court

286 P. 527

133 Or. 468

LAMM v. SILVER FALLS TIMBER CO.

Supreme Court of Oregon, En Bank.

March 18, 1930

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

On rehearing. Former opinion and judgment of circuit court reversed.

For former opinion, see 277 P. 91.

BROWN J., COSHOW, C.J., and BEAN, J., dissenting.

Omar C. Spencer and Frank S. Senn, both of Portland (Carey & Kerr and Omar C. Spencer, all of Portland, on the brief), for appellant.

Arthur I. Moulton, of Portland (Lord & Moulton, of Portland, on the brief), for respondent.

Miles H. McKey, Asst. Atty. Gen. (I. H. Van-Winkle, Atty. Gen., on the brief), for State Industrial Accident Commission.

ROSSMAN, J.

Our previous opinion, we believe, unduly confines the operation of the Workmen's Compensation Act (Or. L. § 6605 et seq. as amended) to a scope narrower than that contemplated by its broad and humane purposes; we also believe that the plaintiff's injury, for which he seeks redress from the defendant, befell him in an "accident arising out of and in the course of his employment;" we have, therefore concluded that our previous decision cannot be sustained that the judgment of the circuit court must be reversed, and that the plaintiff's action should be dismissed. The circumstances, we feel, warrant us in stating fully the manner in which we have reached our conclusions.

Before considering again the construction which should be placed upon the above-quoted words, which the parties seem to feel are the crucial ones of the act, it may be well to advert once more to the facts before us. The plaintiff, after having been in the employ of the defendant for many months, engaged in logging operations, concluded to return to his home in Silverton on Saturday November 6, 1926, for a short visit; apparently he had no specific objective in mind which he had determined to accomplish during his absence from the defendant's camp. It is clear that neither he nor the defendant had any thought of terminating the plaintiff's employment, and that he expected to shortly return and resume his labors. Thus he retained his bunk house; his blankets, personal belongings, etc., remained in it at the defendant's camp, and in fact when he concluded his labors on Friday, the circumstances were no different than when he quit his work on any other day with the exception that he did not expect to resume his task the following Monday. On Tuesday, November 9th, the plaintiff decided to return so that he could again resume his work on Wednesday morning, November 10th; such being his plan, he presented himself at the Silverton terminus of defendant's logging railroad and spoke to an employee in charge of the logging train which was about to start for the camp. He was accepted aboard the train, and in harmony with the uniform practice was charged no fare. This, together with the statement of facts contained in the previous decision which is reported in 277 P. 91, will suffice for the purpose of setting forth the relationship between the parties. It may be useful, however, to remind ourselves of a few facts concerning logging camps which are well known. Work in these camps is distinguishable from that in the factory in the important fact that the logger's employment is discharged at a place which is far removed from his home, places of recreation, and facilities for supplying his wants. He is unable to leave his home and proceed directly to the logging operations by means of a street car, automobile, or other similar conveyance which takes the city employee to the factory. Due to the conditions which surround the scene of logging operations, the woodsman is first hauled to the logging camp upon the logging railroad; from the latter place he is hauled each morning to the actual scene of his labors, and in the evening back again to the camp. The logging railroad, the camp, the donkey engines, cables, axes, and saws, are all a part of the equipment with which the logging operations are conducted. It will be readily conceded that but few loggers would make the trips from the end of the logging railroad to the camp but for the fact that their employment necessitates them. When the factory employee desires to go to or leave his employer's plant, there are generally several routes available, all consisting of public streets; but, when the logger undertakes to go to or leave the scene of his labors, there is generally only one practical way that he may employ, that is the logging railroad. Thus, it can be said, that in this manner the employer controls the employee's movements until the latter has reached the terminal of the railroad. While the logger is staying at the camp with its bunk houses, limited boarding accommodations, and meager facilities for supplying the wants of life, he finds frequent occasion to quit work for short periods of time and visit the city. These temporary cessations from labor are due to the nature of the logging camp and the kind of work in which the men are engaged; thus Varrelman (see Varrelman v. Flora Logging Co., 286 P. 541) quit for a day to supply himself with a pair of shoes. Without shoes, clothing, dental, and medical attention, the employee might be unable to continue his labors; and it is easily conceivable that unless the employers afforded facilities so that the logger could occasionally get out of the camp. visit his home, and obtain the recreation not afforded by the camp, an intelligent type of workman would not offer himself for work in the woods. It follows that to supply the workman with the means of going "from the camp to the outside world," as the parties have termed these trips, serves not only the purposes of the employee, but also renders the business of the employer possible. In the present case, the logging railroad was the most practical means whereby the logger could go from his place of employment to the city; if he did not use the railroad, he was compelled to tramp over a trail, six or seven miles in length, which connected with the county road, ten or twelve miles in length, and thus was brought to the city of Silverton. In the Varrelman Case (Or.) 286 P. 541, the logging railroad was the only means of ingress to and egress from the camp. Passage back and forth upon these logging trains constitutes one of the hazards incident to the employment of the logger; the proof of this statement can be readily obtained by an inspection of the reports of this court and of the Supreme Court of Washington, wherein will be found numerous instances of actions by loggers for injuries sustained in passing to and from the camp on the crude equipment provided by the employer.

From the foregoing, the conclusion seems justifiable that the plaintiff would not have been injured but for his employment. It is true that when he was injured he was not working for the defendant, but he was in its employ. His work did not begin until the following morning; but his employment began when the defendant accepted the plaintiff into its employ some months previously. Hence the employment continued not only while he was working for the defendant in the woods, but also upon his trip to Silverton and back.

We come now to the more specific question, whether the injury arose out of and in the course of the employment. This court, as well as other courts, has many times pointed out that the problem, whether an injury arises out of and in the course of the employment, is not to be determined by the precepts of the common law governing the relationship between master and servant; these ancient rules include the principles defining negligence, assumption of risk, fellow-servant doctrine, contributory negligence, etc. Likewise, all courts are agreed that there should be accorded to the Workmen's Compensation Act a broad and liberal construction, that doubtful cases should be resolved in favor of compensation, and that the humane purposes which these acts seek to serve leave no room for narrow technical constructions. Further, the cases agree that these acts do not mean one thing when it is to the advantage of an employee so to maintain, and something else when an employer invokes the protection of the act in his favor.

One of the purposes of the Workmen's Compensation Acts is to broaden the right of employees to compensation for injuries due to their employment. Since these acts contemplate compensation for an injury arising out of circumstances which would not afford the employee a cause of action, the right to redress is not tested by determining whether a right of action could be maintained against the employer. Stark v. State Industrial Accident Commission, 103 Or. 80, 204 P. 151. The word employment, as used in such legislation, is construed in its popular signification. We quote from the decision of the Montana Court in Wirta v. North Butte Mining Co., 64 Mont. 279, 210 P. 332, 335, 30 A. L. R. 964: "The word 'employment,' as used in the Workmen's Compensation Act, does not have reference alone to actual manual or physical labor, but to the whole period of time or sphere of activities, regardless of whether the employee is actually engaged in doing the thing he was employed to do. * * * To say that plaintiff 'ceased' working for the defendant is not equivalent to saying that he severed the relation of employer and employee."

Since the courts have recognized the broad humane purposes of the act, they have readily perceived that the mere fact that the injury befell the claimant, at a moment when he was not performing manual labor for his employer, does not necessarily prove that the accident did not arise out of or in the course of the employment. The words just mentioned which are a part of most of the acts are never qualified by the limitation that...