Manke v. Nehalem Logging Co.

• Decision Date: 11 September 1957
• Citation: 211 Or. 211,315 P.2d 539
• Parties: Virgie MANKE, Administratrix of the estate of Ronald Manke, deceased, Respondent, v. NEHALEM LOGGING CO., a corporation, and Reinhold Fauser, Defendants, State Industrial Accident Commission of the State of Oregon, Appellant.
• Court: Oregon Supreme Court

Page 539

315 P.2d 539

211 Or. 211

Virgie MANKE, Administratrix of the estate of Ronald Manke deceased, Respondent, v. NEHALEM LOGGING CO., a corporation, and Reinhold Fauser, Defendants State Industrial Accident Commission of the State of Oregon Appellant.

Supreme Court of Oregon, in Banc.

Argued Jan. 7, 1957.

Decided Sept. 11, 1957.

Robert Y. Thornton, Atty. Gen., and Ray H. Lafky, Asst. Atty. Gen., for appellant.

Winslow & Winslow, Tillamook, for respondent.

McALLISTER, Justice.

This is an action brought by Virgie Manke, as administratrix of the estate of her deceased son, Ronald Manke, against the defendants, Nehalem Logging Co. and Reinhold Fauser, to recover damages for the alleged wrongful death of said decedent. The complaint alleges in substance that the defendants owned and operated a shingle mill in Tillamook county, including a mill pond in connection therewith; that on June 22, 1955, Ronald Manke began to work for defendants upon and about said mill pond and on the same date accidentally fell into said pond and was drowned; that Ronald was then 17 years of age; that defendants permitted Ronald to perform said work 'without any permit or certificate of any kind' and that his death was the result of the negligence of the defendants as more particularly alleged in the complaint.

Pursuant to the provisions of ORS 656.582 ¹, the Attorney General, at the request of the State Industrial Accident Commission, defended the action on behalf of both defendants, alleging in substance in a second amended answer that the shingle mill was being operated solely by the defendant Reinhold Fauser; that Ronald was employed by said defendant and not by the defendants jointly; that both defendants were subject to the Workmen's Compensation Law and had fully complied with all of its provisions; that regardless of whether Ronald was employed by either one or both defendants, the sole remedy of plaintiff is under the Workmen's Compensation Law and that the complaint should be dismissed.

No formal reply was filed to the second amended answer but the cause was tried as if the affirmative allegations of the second amended answer had been denied by the plaintiff. The parties stipulated that the issues should be tried by the court without a jury and after a trial, during which most of the facts were agreed upon, the court found that the employment of Ronald was unlawful and that as a consequence thereof, the remedy of the plaintiff was not exclusively under the Workmen's Compensation Law. From the order dismissing the answer filed by the State Industrial Accident Commission, this appeal was taken on behalf of both defendants.

The question presented by this appeal is whether at the time of his death Ronald was subject to the Workmen's Compensation Law and if so, whether the sole remedy on account of his death is under that act.

The Workmen's Compensation Law, which was originally enacted by Oregon Laws 1913, ch. 112, is now contained in ORS 656.002 to 656.590 and will be hereinafter referred to as the 'act.' We will refer to the pertinent provisions of the act in effect at the time of Ronald's death.

ORS 656.002(15). "Workman' means any person who engages to furnish his services, subject to the direction and control of an employer.'

It will be noted that the above definition of workman is sufficiently broad to include both minors and adults.

ORS 656.122. 'If an employer is subject to ORS 656.002 to 656.590 as to any occupation, all workmen employed by him in such occupation are subject to ORS 656.002 to 656.590 as workmen, but not otherwise.'

In view of the foregoing sections of the act, it is obvious that a workman, regardless of his age, is subject to the act if his employer is subject to the act as to the occupation in which the workman is engaged at the time of his injury. The intention of the legislature that the act should provide an exclusive remedy for injured workmen, except as otherwise specifically provided, is also clearly expressed in ORS 656.152, the material portions of which read as follows:

'(1) Every workman subject to ORS 656.002 to 656.590 while employed by an employer subject to ORS 656.002 to 656.590 who, while so employed, sustains personal injury * * * by accident arising out of and in the course of his employment and resulting in his disability, or the beneficiaries of such workman, if the injury results in death, are entitled to receive from the Industrial Accident Fund the sums specified in ORS 656.002 to 656.590. * * *.

'(2) The right to receive such sums is in lieu of all claims against his employer on account of such injury or death, except as otherwise specifically provided in ORS 656.002 to 656.590. * * *'

It will be helpful to consider briefly the legislative history of the act and particularly of the foregoing provisions. The broad definition of workman contained in ORS 656.002(15) was included in the original act although in slightly different language. But the original act expressly excluded from its coverage minors employed under the minimum age prescribed by law. This exclusion was contained in the last sentence of section 11 of the original act, which read as follows:

'All workmen in the employ of persons, firms or corporations who as employers are subject to this act shall also be subject thereto; provided, however, that any such workman may be relieved of the obligations hereby imposed and shall lose the benefits hereby conferred by giving to his employer written notice of an election not to be subject thereto in the manner hereinafter specified. Any workman of the age of 16 years and upwards shall himself exercise the election hereby authorized. The right of election hereby authorized shall be exercised on behalf of any workman under the age of 16 years by his parent or guardian. This act shall not apply to workmen of less than the minimum age prescribed by law for the employment of minors in the occupation in which such workmen shall be engaged.'

The last sentence of the above section was repealed by Oregon Laws 1927, ch. 312, § 1. By this repeal the legislature clearly expressed the intent that all minors should be covered under the act regardless of age.

That portion of section 11 providing that all workmen, including all minors, could by giving notice to the employer elect not to be subject to the act was repealed by Oregon Laws 1935, ch. 61, § 1. The repeal of these two portions of section 11 left in effect only that part of the first sentence preceding the proviso which part in slightly altered form is now ORS 656.122 quoted above.

Plaintiff contends that she is granted an election to sue Ronald's employer under ORS 656.132, which reads as follows:

'(1) A minor working at an age legally permitted under the laws of this state is considered sui juris for the purpose of ORS 656.002 to 656.590. No other person shall have any cause of action or right to compensation for an injury to such minor workman, except as expressly provided in ORS 656.002 to 656.590, but in the event of a lump sum payment becoming due under ORS 656.002 to 656.590 to such minor workman, the control and management of any sum so paid shall be within the jurisdiction of the courts as in the case of other property of minors.

'(2) If an employer subject to ORS 656.002 to 656.590 in good faith employed a minor under the age permitted by law, believing him to be of lawful age, and the minor sustains an injury or suffers death in such employment, the minor is conclusively presumed to have accepted the provisions of ORS 656.002 to 656.590. The commission may determine conclusively the good faith of such employer unless the employer had in his possession at the time of the accident resulting in such injury or death a certificate from some duly constituted authority of this state authorizing the employment of the minor in the work in which he was then engaged. Such certificate is conclusive evidence of the good faith of such employer.

'(3) If the employer holds no such certificate and the commission finds that the employer did not employ such minor in good faith, the minor is entitled to the benefits of ORS 656.002 to 656.590, but the employer shall pay to the Industrial Accident Fund by way of penalty a sum equal to 25 percent of the amount paid out or set apart under such statutes on account of the injury or death of such minor, but such penalty shall not exceed $500.'

Paragraph (1) of the above section was included in the original act of 1913 and consequently was in effect both when the act excluded minors employed under the age prescribed by law and also after such exclusion was repealed. Paragraph (1) does not purport to exclude any minor from coverage under the act nor to grant to any minor an election to sue his employer. There is no reason to expand by implication the meaning of this language to exclude minors from coverage under the act when another provision of the same act expressly excluded from its application minors 'of less than the minimum age prescribed by law.' This paragraph merely prescribed which minors shall be considered sui juris and thus able to deal with the commission without the aid of a guardian except to receive a lump sum payment. In construing the provisions of the Idaho Workmen's Compensation Law, I.C. § 72-1011, in language almost indentical to Paragraph (1) of ORS 656.132, in Lockard v. St. Maries Lumber Co., 76 Idaho 506, 285 P.2d 473, 475, the court said:

'* * * Appellant urges that the last sentence of the above section providing that a minor working at an age legally permitted shall be deemed sui juris for the purpose of the act, limits the application of the act to minors so working. This is not a correct interpretation of the provision. It is clearly intended to mean that a minor legally permitted to work may pursue his remedies under the act without a guardian and without let or hinderance of any other person, except in the case of a lump sum...