Lawton v. Morgan, Fliedner & Boyce

• Decision Date: 15 April 1913
• Citation: 131 P. 314,66 Or. 292
• Parties: LAWTON v. MORGAN, FLIEDNER & BOYCE et al.
• Court: Oregon Supreme Court

131 P. 314

66 Or. 292

LAWTON v. MORGAN, FLIEDNER & BOYCE et al.

Supreme Court of Oregon

April 15, 1913

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Action by John Lawton against Morgan, Fliedner & Boyce and others. Judgment for plaintiff, and defendant named appeals. Reversed.

This is an action by John Lawton against Morgan, Fliedner & Boyce, a corporation. Thomas Davidson, W.A. Leith, and B.J. Hecker to recover damages for a personal injury alleged to have been caused by the defendants' negligence. The summons herein was not served upon Davidson, Leith or Hecker, and as to them the action was dismissed. The corporation answering denied the material averments of the complaint and set up affirmative defenses as follows: (1) That the injury complained of was caused by an independent contractor; (2) that the hurt resulted from the plaintiff's contributory negligence; (3) that the accident arose from the negligence of a fellow servant; and (4) that the plaintiff assumed the risk. The allegations of new matter in the answer having, by stipulation, been deemed denied, the cause was tried, and it was agreed by the parties that the testimony received substantiated the facts in substance as follows: That on March 30, 1911, the time of the accident, Leith and Hecker were the owners of a tract of land at the northeast corner of Grand avenue and East Stark street, Portland, Ore., and prior thereto they had entered into a contract with the corporation, whereby it engaged to erect for them a building on the premises. In order to secure an adequate foundation for the structure, it became necessary to drive in the earth piling, upon the top of which the foundation might rest whereupon the corporation made a contract with Davidson, by the terms of which it agreed to supply the piling, and he stipulated to furnish the machinery and labor necessary to perform that part of the work. The piles were to be driven according to the plans and specifications, but such drawings and detailed statements were deviated from by the corporation's foreman, who changed the location of some of the supporting timbers, directed in a few instances that one pile should be driven on top of another, specified the number to be used, and indicated the depth to which they should be forced. The plaintiff was employed by Davidson, who directed where and how he should work, and had the right to discharge him, though he and the other employés engaged in driving piling were paid by the corporation's checks which orders on the bank were charged on account of the contract price against Davidson, who was without funds to pay his laborers. The steam engine furnished by Davidson as a motive power to operate the pile driver was old and defective, the appliances for raising and holding the hammer were inadequate, and no provision was made for an efficient or prompt system of communication by means of signals between the man who operated the engine and the employés about the pile driver. The engine was Davidson's property, and the corporation did not exercise any supervision, direction, or control over the machinery, the men employed by Davidson, the signals, the apparatus, or appliances used in performing such work, and as between the corporation and Davidson he was an independent contractor. The plaintiff, on March 30, 1911, was engaged as "top man" on the pile driver, and while he was endeavoring to place a piling between the upright leads the hammer, without his signal and in the absence of any warning, fell, crushing his left hand and causing the injury complained of.

Based on this testimony, the corporation's counsel moved the court for a directed verdict. It was then admitted that the defense of independent contractor had been established, but the trial court, concluding that chapter 3 of Laws Or. 1911 initiated by petition and ratified by a majority of the votes cast in favor of the measure at an election held November 8 1910, eliminated such defense, denied the motion. The cause was then submitted to the jury, which returned a verdict in plaintiff's favor in the sum of $4,650, and judgment having been rendered thereon the corporation appeals.

R.A Leiter, of Portland (Griffith, Leiter & Allen and F.J. Lonergan, all of Portland, on the brief), for appellant.

W.E. Farrell, of Portland (Davis & Farrell and G.D. Young, all of Portland, on the brief), for respondent.

MOORE, J. (after stating the facts as above).

It is conceded that by the principles of the common law an action of this kind could not have been maintained against Morgan Fleidner & Boyce. The question therefore to be considered is whether or not ...