McKay v. Pacific Building Materials Co.

• Decision Date: 11 May 1937
• Citation: 156 Or. 578,68 P.2d 127
• Parties: McKAY v. PACIFIC BUILDING MATERIALS CO. et al. [*]
• Court: Oregon Supreme Court

68 P.2d 127

156 Or. 578

McKAY v. PACIFIC BUILDING MATERIALS CO. et al. ^[*]

Supreme Court of Oregon, In Banc.

May 11, 1937

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by Gladys M. McKay, substituted for Arthur A. McKay deceased, against the Pacific Building Materials Company and another, to recover damages for personal injuries sustained when a motortruck, equipped with a barrel-shaped container holding a mixture of sand, concrete, and gravel and capable of being emptied by means of an automatic hoisting device toppled over, breaking said container loose and causing it to fall upon plaintiff, while plaintiff was engaged with a water hose as the employee of the Dinwiddie Construction Company. From a judgment based upon a verdict awarding plaintiff recovery in the sum of $34,538, defendants appeal.

Affirmed.

James Arthur Powers, of Portland (Philip A. Joss, of Portland, on the brief), for appellants.

K. C Tanner, of Portland (Green, Tanner & Boesen, of Portland, on the brief), for respondent.

KELLY Justice.

The Dinwiddie Construction Company of San Francisco, Cal., obtained a contract to construct twelve large storage tanks at East Lewis and River streets in Portland, Or. One side of the property on which these tanks were to be constructed lies contiguous to the Willamette river. Pier holes about 30 inches in diameter were drilled to a depth of about 35 feet into which concrete was poured. These pier holes were in rows about 4 feet apart. This concrete was furnished by the defendant Readymix Concrete Company, and hauled to said premises in trucks upon which the name of said defendant, Readymix Concrete Company was painted; but defendants claim that said trucks were owned and operated by defendant Pacific Building Materials Company.

Mounted on these trucks were were metal hauling tanks, or containers, barrel-shaped, and equipped with a hydraulic hoist, which hoist raised the tank at the end near the driver's seat and the other end of the tank tilted downward, permitting concrete to run out of its own weight. There was a cap opening on top of the tank through which mixed concrete was poured into the tank. This was done through means of a loading chute under which the trucks were driven at the Readymix Concrete Company's plant. There was a metal chute door near the bottom of the rear end of the tank. This chute door moved upward flush with the end of the tank and was operated on a worm shaft by cogwheels turned by a detachable crank made of iron rod 14 1/2 inches in length with a handle of four prongs. This crank, when fitted in place for turning, was about a foot and a half above the tank bottom. The prong end of the crank handle when in position for turning extended out on the lefthand side to a position approximately over the left rear fender. The rear of the tank was attached at the bottom to the hoist frame by means of two hinges, which hinges were bolted through the hoist frame with 2 1/2"'x 5/8"' bolts. The hoist frame was so construed that the tank, when tilted to a 60-degree pitch, came in contact with a heavy steel protrusion which was part of the hoist frame, the purpose of which was to prevent further tilting and to prevent the tank from toppling over. There was a chain, one end of which was attached to the bottom of the tank at about the middle thereof, and the other end to the truck frame. The purpose of the chain also was to prevent further tilting when the tank had been tilted to an angle of about 60 degrees.

The truck was operated by an employee of the defendant Pacific Building Materials Company. A sales ticket accompanied each load of cement. On the top of the sales ticket that accompanied that cement, the attempted unloading of which caused plaintiff's injuries, appear the words, "Readymix Concrete Company." On the bottom of this sales ticket in small type appears the following: "It is specifically agreed that Readymix Concrete Co. will not be held liable for any damage done to shrubbery, flowers, roadway or private property in delivering the above material on these premises."

On the afternoon of April 12, 1934, this load of mixed concrete was delivered on said premises. The truck driver was instructed by the Dinwiddie Construction Company's men where to place the truck for unloading. These men attached a metal chute which ran from the tank chute door to a pier hole. The driver of the truck cranked open the chute door, and, aided by men using rakes, unloaded about half of the load.

The Dinwiddie Company, having experienced trouble with the consistency of the concrete in other holes, because of the seepage from the river, had ordered a drier mix for this load.

When about half of the load had been discharged, there is testimony to the effect that the Dinwiddie Company's foreman told the truck driver to move the truck ahead. This is denied by the truck driver, who testified that he was told to hoist the tank in order to let the remaining concrete slide out.

The truck driver hoisted the tank, whereupon it toppled over upon plaintiff, injuring him. The testimony for plaintiff is to the effect that the safety chain, above described, was old and worn and that it broke, thereby releasing the tank. The testimony for defendants disclosed that the bolts, which had secured the left tank hinge to the frame, were sheared off and the chain hook had spread apart, but the chain itself was not broken.

Plaintiff's duty was to attend the portable pump in use for pumping water out of the pier holes preparatory to putting the concrete mixture therein. Owing to the seepage from the river, this pumping had to be done immediately before the concrete was poured into the hole. At the time he was injured, plaintiff was handling the hose connected with said portable pump.

The Dinwiddie Construction Company had rejected the State Workmen's Compensation Act and had secured a policy of insurance issued by the Pacific Indemnity Company covering damages and claims of damages by its employees. Both defendants, Pacific Building Materials Company and Readymix Concrete Company, and their employees, were subject to the Workmen's Compensation Act (Code 1930, § 49-1801 et seq., as amended).

The negligence charged by plaintiff consisted of: (a) Failure to warn plaintiff of intention to hoist concrete tank; (b) operating said hoisting equipment with a defective safety chain; (c) operating said truck when workmen were in and about the same; (d) failure to obey the order to move said truck forward; (e) violation of Employers' Liability Act (Code 1930, § 49-1701 et seq.); and (f) delivering concrete in truck and body not suitable for that purpose. This last specification of negligence was made by amendment to conform to the testimony during trial.

Defendants answered, denying all allegations of negligence, admitting that through latent defect a hook on the end of the safety chain had spread apart; that the body had toppled over; and that plaintiff had suffered certain injuries. The answer also set forth as a plea in abatement, although not in the approved form thereof, that plaintiff had entered into an agreement with plaintiff's employer and said employer's insurance carrier, whereby plaintiff had been paid compensation and was entitled to continue to receive compensation in accordance with and in the amounts specified in the Oregon Workmen's Compensation Laws, said payments having been made and to be made by his employer's insurance carrier; that in and by said agreement and policy of insurance with indorsements thereon under which compensation payments had been made and were to be made to plaintiff, the Pacific Indemnity Company, as insurance carrier for plaintiff's employer, had attempted to exact from plaintiff, and to require plaintiff to pay it, the said insurance company, any sum or sums that plaintiff might recover, on account of his alleged injuries, either in this action against these defendants or in any other action; that if any recovery is made in this action, plaintiff, under the terms of the policy of insurance, indorsements thereon, and his compensation agreement with said insurance company, is required to pay to said company out of any money so recovered an amount sufficient to repay said insurance company for all sums of money paid by it to plaintiff under its said policy and agreement, together with all sums of money or obligations incurred or to be incurred by said insurance company for doctor and hospital bills and other medical treatment and attendance procured for plaintiff, and that under said policy of insurance, indorsements thereon, and agreements and understandings existing between plaintiff and Pacific Indemnity Company, plaintiff has subrogated his right or cause of action for his said injuries; and said Pacific Indemnity Company is the real party in interest in the cause herein.

In bar the answer also sets forth affirmative defenses: (a) Negligence of Dinwiddie Construction Company in placing and requiring plaintiff to work in a dangerous position and contributory negligence of plaintiff; (b) that plaintiff was receiving full compensation for the same injuries through compensation payments being paid him by his employer's insurance carrier in accordance with the Oregon Workmen's Compensation Act; (c) that plaintiff had released his employer and the insurance carrier; (d) that the allegedly defective hoisting equipment had been purchased from a reputable manufacturer of such equipment; that similar equipment was in general use; that said manufacturer had installed said equipment on defendant's truck, and defendant had relied on said manufacturer to furnish safe and proper equipment; that defendant had no notice of any defect in the equipment and that the...