Myers v. Staub

• Decision Date: 23 June 1954
• Citation: 272 P.2d 203,201 Or. 663
• Parties: MYERS v. STAUB et al. (two cases).
• Court: Oregon Supreme Court

Page 203

272 P.2d 203

201 Or. 663

MYERS v. STAUB et al. (two cases).

Supreme Court of Oregon, Department 1.

Argued and Submitted Feb. 24, 1954.

Decided June 23, 1954.

David Spiegel, Portland, for appellants. On the briefs were Lenske, Spiegel, Spiegel, Martindale & Bloom, Portland.

H. H. Phillips, Portland, for respondent. With him on the brief were Phillips, Coughlin, Buell & Phillips, Portland.

Before LATOURETTE, C. J., and WARNER, ROSSMAN and PERRY, JJ.

WARNER, Justice.

Pursuant to a stipulation of the parties, the action of Vera Myers, widow of Byron Myers, against Raymond R. Staub and Portland General Electric Company and the like action of Lois Myers, widow of Robert Myers, against the same defendants were consolidated for trial and thereafter tried without the intervention of a jury. The plaintiffs obtained substantial judgments against the defendant Staub, who is not a party to this appeal. Both plaintiffs, however, appeal from a judgment dismissing their respective complaints against the defendant Portland General Electric Company (hereinafter referred to as the 'electric company'). Their appeals to this court were also combined for argument.

The joint presentation of these cases in the trial court and in this court was a logical consequence of the strangely identical circumstances which preceded and accounted for the deaths of Byron Myers and his son, Robert Myers, both coworkers in the employ of the defendant Staub on his dairy farm in Clackamas county. Their deaths occurred on succeeding days at the same place on the Staub farm and apparently from the same cause. This situation gives rise to substantially the same facts pleaded in both causes of action and likewise accounts for the same questions of law that are projected in each cause. We will for the purposes of this opinion treat both causes as identical.

Both actions were brought under the provisions of the Employers' Liability Law, ORS 654.305 to 654.335 (heretofore in prior codes known as the Employers' Liability Act) to recover damages for the deaths of plaintiffs' respective husbands alleged to have resulted from the negligence of the defendants Staub and the electric company in maintaining and supplying electricity to a power line hung to close to the ground.

The electric company here demurs to the complaints on the ground that they do not state a cause of action against it. Since we feel that the complaints are vulnerable to such attack, our examination of the facts is limited to the allegations in the complaints which, insofar as pertinent to this decision, are as more particularly pleaded in the complaint of plaintiff Lois Myers reading:

'III.

'That at all times herein mentioned defendant Raymond R. Staub was and now is the owner of the real property hereinabove described, and that the said lines were operated, controlled and maintained by defendant Raymond R. Staub upon the property of defendant Raymond R. Staub at his request and with his knowledge of the voltage carried and for his use and purpose.

'IV.

'That said lines were connected to electric equipment and machinery that utilized said electricity, including a pumping system which consisted of an electrically motivated pump which pumped water from a dammed pond, a tributary of the Willamette River, and into irrigation pipes laid upon the said real property, and that said irrigation pipes were made of metal that conducted electricity.

'V.

'That on or about September 4, 1947, Robert Myers was an employee of defendant Raymond R. Staub and that the duties of the said Robert Myers as directed by defendant Raymond R. Staub, included working in and about and upon said electrically motivated pump and said irrigation pipes and in the presence and proximity of the said transmission lines, and also included the use, care and cleaning of said metal irrigation pipes, and that on or about September 4, 1947, while the said Robert Myers was so employed, he lifted a piece of the said pipe that was twenty feet long for the purpose of cleaning the same and causing any foreign matter therein to fall of be forced out; and that at said time said irrigation pipe was near the electric power lines which were maintained upon said property by defendant Portland General Electric Company as aforesaid.

'VI.

'That while Robert Myers was handling said pipe for the purposes above mentioned, said pipe came in contact with the above mentioned power line and the said Robert Myers was immediately and fatally electrocuted by the electric current from said transmission lines.'

In Paragraph VIII we find the electric company's violation of the Employers' Liability Law stated as follows:

'That defendant Portland General Electric Company was guilty of negligent, unlawful and reckless conduct and failed to use every device, care and precaution which it is and was practicable to use for the protection and safety of life and limb without impairing the efficiency of either the work of Robert Myers or any of said equipment, in transmitting electric energy of high voltage to and through said lines when it knew or should have known:

'1. That said high voltage electric wiring was maintained upon the premises aforesaid too close to the ground at said time and place, so that the same constituted a hazard to any person employed upon said ground and especially any person handling twenty-foot pipe made of metal that conducted electricity, when it knew or should have known that such person would be in the vicinity.

'2. That no notice of the high voltage of said transmission lines had been posted and no notice or warning of the high voltage of said transmission line given in any other manner.

'3. That said line extended for the transmission of electric energy to a cabin or house upon said premises when there was no use on the part of or on behalf of defendant, Raymond R. Staub, for high electric voltage beyond said pumping system to said cabin but that nevertheless defendant Portland General Electric Company transmitted said high voltage electric current line beyond said pumping system.

'4. That there were no transformers or other devices for the reduction of the electricity beyond said pumping station and in that the said transmission lines were not insulated beyond said point.'

In the complaint of the plaintiff Vera Myers the paragraphs of corresponding number read the same, except the date September 3, is substituted for September 4 and the name Byron Myers is substituted for Robert Myers.

The Employers' Liability Law is both a remedial and preventive statute providing a cause of action to certain individuals named therein against an employer for injury or death of an employee engaged in various hazardous occupations and requiring a high caliber of devices, care and precautions for the safety of those employees. It deprives the employer of the common law defenses of contributory negligence, the fellow servant rule and the assumption of the risk doctrine. Moreover, in an action for the death of an employee, the amount recoverable is not subject to the limitation of $20,000 found in the wrongful death act. ORS 30.020.

In general, the Employers' Liability Law permits recovery where the injury or death results from certain hazardous conditions under the control of the employer and under which the employee is required to work.

It is not always necessary that the defendant be the injured workman's immediate employer but may be sufficient if such defendant's interlocking interests with the employer amount to 'an intermingling of duties and responsibilities' so as to bring the relationship of the defendant to the workman within the spirit of the Employers' Liability Law. Drefs v. Holman Transfer Co., 130 Or. 452, 456, 280 P. 505; Clayton v. Enterprise Electric Co., 82 Or. 149, 161 P. 411.

The question for answer here is whether the facts as pleaded bring the instant cases within the embrace of the Employers' Liability Law as to the defendant electric company, as insisted by the plaintiffs. We are not inquiring whether defendant electric company was or was not guilty of culpable negligence according to the standards fixed by the rules of common law. If it be assumed for the purposes of this discussion that the electric company is chargeable with culpable negligence within the rules of common law, the plaintiffs must, nevertheless, fail in their respective actions unless the provisions of the Employers' Liability Law apply to the facts disclosed by their complaints, because each plaintiff is suing in her individual capacity. If the Employers' Liability Law applies to the facts as alleged by their respective complaints, the plaintiffs in their individual capacities are then entitled to sue. If we find that the statute does not apply and if the defendant electric company is liable in damages for common law negligence, then the representatives of the decedent spouses of the respective plaintiffs must sue. Jylha v. Chamberlain, 168 Or. 171, 173, 121 P.2d 928; Saylor v. Enterprise Electric Co., 106 Or. 421, 424, 212 P. 477. If the Employers' Liability Law does not embrace a factual situation like the one pleaded in the instant case, the demurrer must be sustained, even though it is assumed that the defendant electric company was guilty of negligence according to common law standards. Saylor v. Enterprise Electric Co., supra.

Plaintiffs are adamant in their insistence that their respective complaints state causes of action against the electric company within the purview of the Employers' Liability Law. They observe, and we think correctly, that the five points of attack relied upon by the respondent electric company may properly be resolved into one, namely, the absence of and necessity for an allegation that the electric company had control over the means by which the decedents Myers met their deaths.

As against the defendant Staub the plaintiffs allege, as the primary element of his negligence, the presence of high...