Nelson v. Bartley

• Citation: 222 Or. 361,352 P.2d 1083
• Parties: Helen NELSON, Individually, and Dale Orrin Nelson, a minor; Patricia Carolyn Nelson, a minor; James Alan Nelson, a minor; Debra Aleta Nelson, a minor; and Kathleen Jean Nelson, a minor, all of said minors by their Guardian ad litem, Helen Nelson, Appellants, v. Ray BARTLEY, Darwin Pullen and Kenneth Stevens, copartners doing business under the assumed business name and style of B. P. & S. Logging Company, Respondents.
• Decision Date: 08 June 1960
• Court: Supreme Court of Oregon

Page 1083

352 P.2d 1083

222 Or. 361

Helen NELSON, Individually, and Dale Orrin Nelson, a minor;

Patricia Carolyn Nelson, a minor; James Alan Nelson, a

minor; Debra Aleta Nelson, a minor; and Kathleen Jean

Nelson, a minor, all of said minors by their Guardian ad

litem, Helen Nelson, Appellants, v. Ray BARTLEY, Darwin Pullen and Kenneth Stevens, copartners

doing business under the assumed business name and

style of B. P. & S. Logging Company, Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 17, 1960.

Decided June 8, 1960.

Robert E. Jones, Coos Bay, argued the cause for appellants. With him on the brief were Engelgau & Jones, Coos Bay.

Winfrid K. Liepe, Portland, argued the cause for the respondents. With him on the brief were Howard K. Beebe and Maguire, Shields, Morrison, Bailey & Kester, Portland, and McKeown, Newhouse & Johansen, Coos Bay.

Before McALLISTER, C. J., and ROSSMAN, PERRY and DUNCAN, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiffs who are the widow and five minor children of one Joseph J. Nelson, deceased, from a judgment of the circuit court which dismissed their complaint. The judgment was entered after trial and upon findings of fact. The five minor children appear through their guardian ad litem, the widow. The defendants, who are three in number, constitute a partnership entitled B. P. & S. Logging Company.

The complaint charged the defendants with negligence and averred that the latter caused the death of the aforementioned Joseph J. Nelson. Nelson was not an employee of the partnership. He was employed by a corporation entitled Menasha Plywood Corporation which operated a log dump known as the Menasha log dump. The partnership was engaged under a contract with Menasha in producing logs from timber land owned by Menasha and in delivering the logs to the Menasha log dump. Joseph J. Nelson, as an employee of the Menasha Plywood Corporation, had charge of the log dump. May 7, 1957, one of the defendants' employees, Ernest Shanahan, drove one of their log trucks loaded with logs to the log dump and, while Shanahan and Nelson were performing some work preparatory to the dumping of the logs into the water, one of the logs fell from the truck and caused Nelson's death. This action was instituted against the defendants under the Employers' Liability Act, ORS 654.305 et seq., to recover damages. At the beginning of the trial plaintiffs' counsel dictated into the record a stipulation that the defendants and the Menasha Plywood Corporation were employers who were subject to and had accepted the Workmen's Compensation Law of this state, ORS 656.002 et seq.

The answer of the defendants averred that at the time of the fatal injuries the defendants were on premises over which they and the deceased's employer (Menasha Plywood Corporation) had joint supervision and control. It also averred that at that time the defendants and Nelson's employer were engaged upon those premises in the furtherance of a common enterprise and the accomplishment of the same or related purposes. In the stipulation which plaintiffs' counsel dictated into the record at the beginning of the trial it was agreed that:

'* * * the accident causing said injuries and death arose out of and occurred in the course and scope of his said employment. As a result of said injuries and death of Joseph J. Nelson, plaintiff Helen Nelson applied for and received benefits of the Oregon Workmens Compensation Law of the State of Oregon, and plaintiff Helen Nelson has filed her election to seek remedy against third parties.'

After the plaintiffs and the defendants had presented all of their evidence the judgment challenged by this appeal was entered.

ORS 656.152 provides:

'(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 an accidental injury, or accidental injury to prosthetic appliances 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 * * *.'

ORS 656.154 is the section of our laws which governs the issues submitted by this case. At the times material to this case it read:

'(1) If the injury to a workman is due to the negligence or wrong of a third person not in the same employ, the injured workman, or if death results from the injury, his widow, children or other dependents, as the case may be, may elect to seek a remedy against such third person. However, no action shall be brought against any such third person if he or his workman causing the injury was, at the time of the injury, on premises over which he had joint supervision and control with the employer of the injured workman and was an employer subject to ORS 656.002 to 656.590.

'(2) As used in this section, 'premises' means the place where the employer, or his workman causing the injury, and the employer of the injured workman, are engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in operation.'

One of the findings states:

'* * * At the time and place of said fatal injury to the said Joseph J. Nelson, defendants and their employees were on premises over which they had joint supervision and control with Menasha Plywood Corporation, the employer of the plaintiffs' decedent, Joseph J. Nelson, and at said time and place, defendants and the employer of said Joseph J. Nelson, were engaged upon said premises in the furtherance of a common enterprise and the accomplishment of the same or related purposes in the operation.'

The plaintiffs-appellants submit two assignments of error:

1. 'The Court erred in finding that at the time and place of the fatal injury to Joseph J. Nelson that Defendants and their employees were on premises over which they had joint supervision and control with Menasha Plywood Corporation, the employer of the Plaintiffs' decedent, Joseph J. Nelson.'

2. 'That the Court erred in finding that at the time and place of the fatal injuries to the decedent, Joseph J. Nelson, Defendants and the employer of the said Joseph J. Nelson were engaged upon said premises in the furtherance of a common enterprise and the accomplishment of the same or related purposes in operation.'

A witness for the defendants, Clifton N. Parrish, who had driven log trucks for many years and who was familiar with the method employed at the Menasha log dump in the unloading of log trucks, gave a detailed description of the method. He also described the manner in which the unloaded log truck was prepared for the return trip to the woods. Parrish's description of those methods is not criticized by the plaintiffs. We will shortly quote it but before doing so we take note of the fact that one of the plaintiffs' witnesses, Arther Ellsworth Jones, in response to a question propounded to him by plaintiffs' counsel, stated that the description of the manner in which the Menasha log dump was operated, as given by the defendants' witnesses, including Parrish, was correct. We take the following from Jones' testimony:

'Q. In hauling into the dump, the Menasha Log Dump, when Mr. Nelson was present, what was the procedure that you followed, was it similar to the procedure that has been described by the other witnesses? A. Yes.'

The evidence indicates without contradiction or challenge that the Menasha log dump was operated in the same manner as all others. Due to Jones' testimony and the fact that the plaintiffs' witnesses did not take to task any part of the testimony of Parrish and of the other witnesses who gave similar testimony we believe that we can depend upon Parrish's description of the manner in which the Menasha log dump was operated as accurate. The following is Parrish's description:

'Q. Now, will you state for the record, and to the Court, what procedure was followed when Mr. Nelson was present there at the log dump? A. He would spot the truck, as it came in.

'Q. By that you mean what? A. He would stop us when the load was centered under the dumping machine.

'Q. All right--A. And I would get out and he would generally put the straps under the load.

'Q. The straps under the load, what do you mean by that? A. Well, the dump straps, he would put them under the load, and hook them to the dump machine, and I would start taking off--well, I would go back and get my flag, and start taking off the wrappers. You know, you have your red flag on the rear of the load, for a warning.

'Q. At the end of the long logs? A. Yes.

'Q. What did you do after that? A. Well, take the wrappers off.

'Q. How many wrappers would you generally have on your load, Mr. Parrish? A. The law required four.

'Q. And is that what would generally be on the load? A. Yes.

'Q. Would you have more on some loads? A. Yes, you would have a gut wrapper on some of them.

'Q. How were the binders loosened and the wrappers removed? A. You would loosen the binders and take the wrappers off.

'Q. Who would do that? A. I would do part, and Mr. Nelson would do part.

'Q. Did Mr. Nelson ever instruct you to remove the wrappers or not to remove them? A. No.

'Q. Was that just a generally understood procedure between you? A. Yes----

'Q. Is that correct? A. Yes.

'Q. Did the fact that you worked together on doing these jobs, did that speed up the dumping operation? A. Yes.

'Q. If only person--if only one person did it, what would have been the result? A. There would have been a hangup.

'Q. Will you state for the record and for the Court what occurred, who did what, after the wrappers were removed, who did what? A. Well----

'Q. After the wrappers were removed? A. I would knock the front bunk block out and Mr. Nelson would knock the...