Nadeau v. Power Plant Engineering Co.

Decision Date01 April 1959
PartiesAlvin G. NADEAU, Appellant, v. POWER PLANT ENGINEERING CO., a corporation, Respondent.
CourtOregon Supreme Court

Francis F. Yunker, Portland, for appellant.

Bruce Spaulding, Portland, and Harry Margolis, Seattle, Wash., for respondent. With them on the brief were Mautz, Souther, Spaulding, Denecke & Kinsey, Portland, and Walsh & Margolis, Seattle.

Before McALLISTER, C. J., and WARNER, SLOAN and MILLARD, JJ.

MILLARD, Justice pro tem.

This is an appeal from an order sustaining defendant's demurrer to plaintiff's second amended complaint and dismissing the case upon plaintiff declining to further plead.

In his complaint plaintiff alleges that he was employed by defendant corporation as a sheet metal worker in the construction, alteration and repair of heating units. It was further alleged that under the terms of his employment plaintiff was required to and did perform his work for the defendant within the State of Oregon, but on August 29, 1953, as incidental to such employment, plaintiff was directed to and did perform temporary work for defendant in the State of Washington; that in addition to sheet metal work, plaintiff was on occasion required to chip or chisel apertures in walls of buildings in order to enable him to run sheet metal conduits and install registers; that on the day in question, while so engaged in installing registers in a building in the State of Washington, a piece of concrete or metal was chipped from the wall or from the hammer which plaintiff was using, causing a fragment thereof to become embedded in the plaintiff's right eye. As a result plaintiff says he was confined to a hospital on several occasions and treated, and the injury sustained caused plaintiff to lose the sight of his right eye, and as a result plaintiff has, and will in the future suffer pain and mental anguish; that loss of his sight is permanent, all to plaintiff's damage, in the sum of $75,000. Plaintiff further alleges that the incident and resultant injury was proximately caused by the careless and negligent act of the defendant in failing to furnish plaintiff with goggles for his protection for use while chipping upon the said concrete wall, contrary to the provisions of the Basic Safety Code of the State of Oregon. It was further alleged said code provided that 'Goggles designed and effective for the purpose intended shall be worn for work where flying particles, dusts, gases, mists or vapors, are a hazard to the eyes.' Plaintiff then alleges 'that at the time of said accident, plaintiff was not subject to the Workmen's Compensation Law of the State of Washington.' Following this, plaintiff alleges special damages followed by prayer for relief, etc.

Defendant demurred to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action and specifically stated 'that plaintiff was working in the State of Washington at the time of the accident referred to, and under the law of Washington no cause of action exists under the circumstances therein set forth.'

In passing upon the correctness of the ruling of the trial court defendant contends that we must disregard that portion of the complaint which alleges that 'plaintiff was not subject to the Workmen's Compensation Law of the State of Washington,' because such statement is a mere conclusion of law.

In the case of Coblentz v. State Ind. Acc. Com., 203 Or. 258, 262, 279 P.2d 503, where a like phrase was pleaded, it was held to state a conclusion of law. See also Ward v. School District No. 18 of Tillamook County, 157 Or. 500, 73 P.2d 379. A conclusion of law in a pleading is not issuable, requires no denial, does not aid the pleading and amounts to a nullity. Kelley v. Mallory, 202 Or. 690, 697, 277 P.2d 767; Mattoon v. Cole, 172 Or. 664, 669, 143 P.2d 679. We therefore conclude that the questioned phrase is a nullity and does not present any issue.

In contending that the court erred in sustaining the demurrer plaintiff in his brief admits that Title 51, Revised Code of Washington, declares and establishes the public policy of that state by providing for compulsory workmen's compensation and at the same time prohibits any action by an employee against an employer because of injuries sustained by reason of the negligence of the latter and that the prohibition is absolute, and the sole remedy of an injured workman in the State of Washington is under the Workmen's Compensation Act of that state. See also Sections 51.04.010, 51.04.020, 51.08.080, 51.08.180, 51.12.010, 51.02.040, 51.20.250 of the Revised Code of Washington; Ash v. S. S. Mullen, 43 Wash.2d 345, 261 P.2d 118; Pate v. General Electric Co., 43 Wash.2d 185, 260 P.2d 901; Anderson v. Allison, 12 Wash.2d 487, 122 P.2d 484, 139 A.L.R. 1003; Rector v. Cherry Valley Timber Co., 115 Wash. 31, 196 P. 653, 13 A.L.R. 1247; Ross v. Erickson Construction Co., 89 Wash. 634, 155 P. 153, L.R.A.1916F, 319.

Nevertheless plaintiff claims that he has a cause of action lying, not in tort, but in contract, by virtue of the provision of the Workmen's Compensation Law of the State of Oregon, which proceeds on the theory of contract as opposed to tort liability, and that since the contract of employment was made in Oregon, the laws of Oregon rather than the laws of Washington govern liability in this case. At this juncture it should be noted that the complaint does not state where the contract was entered into but it does show that substantially the main part of plaintiff's work was to be performed in this state.

In the case of West v. Kozer, 104 Or. 94, 206 [216 Or. 17] P. 542, this court, in referring to the Workmen's Compensation Law of this state, stated as follows:

'* * * there is no doubt of the existence of a contract between the employer, the employee, and the state, that, in case of injury to the employee his compensation should be adjusted and paid from the fund provided in that act. American Radiator Co. v. Rogge, 86 N.J.L. 436, 92 A. 85, 94 A. 85; Sexton v. Newark Dist. Telegraph Co., 84 N.J.L. 85-100, 86 A. 451; Gooding v. Ott, 77 W.Va. 487, 87 S.E. 862, L.R.A.1916D, 637). * * *.' 104 Or. 94 at page 96, 206 P. at page 542.

Since liability under the Workmen's Compensation Act is based upon the theory of contract, we turn to the provisions of that act to determine whether or not a new right of action is thereby created since the general rule is that liability in case of tort is governed by the law of the place where the right of action arose, as we shall presently point out.

Plaintiff argues that he has a cause of action arising under the provisions of ORS 656.024 and 656.126(1), (Prior to amendment, Chapter 723, Section 1, Oregon Laws 1955 and Chapter 474, Section 1, Oregon Laws 1957) of the Workmen's Compensation Law, the pertinent parts of which read as follows:

'Before becoming engaged as an employer in any hazardous occupation defined by ORS 656.082 to 656.086, the employer may file with the commission a statement in writing declaring his election not to contribute to the Industrial Accident Fund, and thereupon shall be relieved from all obligations to contribute thereto. Such employer shall be entitled to none of the benefits of ORS 656.002 to 656.590 and shall be liable for injuries to or death of his workmen, which are occasioned by his negligence, default or wrongful act as if such statutes and not been passed. * * *' ORS 656.024. (Italics ours.)

'If a workman employed to work in this state and subject to ORS 656.002 to 656.590 temporarily leaves the state incidental to that employment and receives an accidental injury arising out of and in the course of his employment, he is entitled to the benefits of ORS 656.002 to 656.590 as though he were injured within this state, if at the time of the accident he was not subject to the workmen's compensation law of the jurisdiction in which he was injured.' ORS 656.126(1) (Prior to amendment as above stated). (Italics ours.)

The provision of ORS 656.024 discloses that a new right of action is not thereby created since it expressly sets forth that in the event of failure of the employer to contribute he would be liable 'as if such statutes had not been passed.' In other words, in such event, the employee would no longer be afforded this protection given him under the Workmen's Compensation Act.

'Independent of the order of the commission, and independent of the Employers' Liability Act, the law has always attached an obligation upon the employer to respond in damages to the employee for his, the employer's negligence. No new cause of action has been created by the statute, or the rules of the State Industrial Accident Commission, but only a determination of the standard of care to be exercised by the employer toward his employee.' Shelton v. Paris, 199 Or. 365, 373, 261 P.2d 856, 860.

Further, ORS 656.126 as it then existed adds nothing since it relates to the right of the workman to compensation under the Workmen's Compensation Act of Oregon in the event he is in the course of his employment temporarily without the state and then only 'if at the time of the accident he was not subject to the workmen's compensation law of the jurisdiction in which he was injured.' It thus clearly appears that a new right is not thereby created, but only an existing statutory right is enlarged, viz., the right to compensation.

Numerous cases have been cited by plaintiff which we find unnecessary to refer to here since they have to do with either the right to compensation under workmen's compensation acts, or are clearly...

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  • Casey v. Manson Const. & Engineering Co.
    • United States
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    ...traditional choice-of-law rule that in tort cases the law of the place of wrong--Lex loci delicti--governs: Nadeau v. Power Plant Engr. Co., 216 Or. 12, 20, 337 P.2d 313 (1959). In Lilienthal v. Kaufman, 239 Or. 1, 395 [247 Or. 277] P.2d 543 (1964), however, we abandoned the mechanical appl......
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