Olds v. Olds

• Decision Date: 02 April 1918
• Citation: 171 P. 1046,88 Or. 209
• Parties: OLDS v. OLDS.
• Court: Oregon Supreme Court

171 P. 1046

88 Or. 209

OLDS v. OLDS.

Supreme Court of Oregon

April 2, 1918

Department 2.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by D. W. Olds against Edwin D. Olds. Judgment for plaintiff and defendant appeals. Affirmed.

This is an action to recover damages for a personal injury, and is based upon the obligation created by the Employers' Liability Act (Gen. Laws Or. 1911, c. 3). The complaint charges, in effect, that at the time of the accident the plaintiff was employed by the defendant to aid him in constructing a bridge on the public highway, which crosses the Sandy river in Clackamas county, Or.; that on September 4, 1915, the plaintiff was ordered by the defendant to take the latter's horses, harness, and wagon, drive to a sawmill, get a load of lumber, and take it to the bridge that in obeying the command it became necessary for the plaintiff in returning from the mill to descend a steep hill and in doing so the lumber, without his fault, crowded upon the horses, causing them to run and rendering it impossible to check their speed, whereby he was violently hurled to the ground and seriously injured, particularly describing the hurt; that the wagon so furnished was defective, in that it had no appliance to prevent the vehicle from pressing upon the team while going down hill; that the defendant had full knowledge of the inadequate condition of the wagon, and had promised the plaintiff and other employés to attach a brake to the vehicle, but he failed to do so, which neglect was the proximate cause of the injury; and that by reason thereof the plaintiff sustained damages in the sum of $10,000, for which judgment was demanded. The answer denies the material averments of the complaint, and for further defenses alleges facts tending to show: (1) That the plaintiff knew and assumed the risk to which he was exposed; (2) that he was guilty of negligence in managing the team at the time he was hurt; and (3) that the accident was unavoidable. The reply put in issue the allegations of new matter in the answer and, the cause having been tried, the plaintiff secured a verdict and judgment for $3,500, and the defendant appeals.

F. S. Senn, of Portland (Grant B. Dimick, of Oregon City, on the brief), for appellant. Earle C. Latourette and C. D. Latourette, both of Oregon City (C. D. & D. C. Latourette, of Oregon City, on the brief), for respondent.

MOORE J. (after stating the facts as above).

It was contended at the trial in this court that the complaint does not state facts sufficient to constitute a cause of action, in that it fails to allege that the defendant at the time of the accident had been relieved from the obligations of the Industrial Accident Insurance by filing with the commission a written notice of his election not to be subject to the provisions of that statute (Gen. Laws Or. 1913, c. 112). Section 10 of that enactment reads in part:

"All persons * * * engaged as employers in any of the hazardous occupations hereinafter specified shall be subject to the provisions of this act: Provided, however, that any such person * * * may be relieved of certain of the obligations hereby imposed, and shall lose the benefits hereby conferred by filing with the commission written notice of an election not to be subject thereto in the manner hereinafter specified."

A part of section 13 of that statute provides:

"The hazardous occupations to which this act is applicable are as follows: * * * Engineering works."

Section 14 thereof, as far as involved herein, is as follows:

"Engineering work means any work of construction, improvement or alteration or repair of * * * highways."

When this action was commenced section 15 of the enactment contained a clause as follows:

"Any employer engaged in any such hazardous occupations who would otherwise be subject to this act, may * * * file with the commission a statement in writing declaring his election not to contribute to the industrial accident fund hereby created, and thereupon such employer shall be relieved from all obligations to contribute thereto and * * * shall be entitled to none of the benefits of this act, and shall be liable for injuries to or death of his workmen, which shall be occasioned by his negligence, default or wrongful act as if this act had not been passed."

The provisions thus quoted are sufficient to show that, though the plaintiff, when he was injured, was engaged in engineering work, the performance of which is classified by the statute as a hazardous occupation no action to recover the damages occasioned by the hurt could have been maintained against the defendant unless he had elected, in the manner prescribed, not to be subject to the obligations imposed, nor to enjoy the privileges conferred by the enactment. The complaint herein contains no allegation of such renunciation, and for lack thereof the defendant's counsel insist that the initiatory pleading is insufficient. In support of the legal principle so asserted reliance is placed upon the decision in the case of Krisman v. Johnson, etc., Mining Co., 190 Ill.App. 612, where in construing the provisions of a Workmen's Compensation Act of Illinois which provided:

"No common-law or statutory right to recover damages for injury or death sustained by any employé, while engaged in the line of his duty as such employé other than the compensation herein provided shall be available to any employé who has accepted the provisions of this act," and every employer included in the act "is presumed to have elected to provide and pay the compensation according to the provisions of this act, unless and until notice in writing of his election to the contrary is filed with the state bureau of labor statistics"

--it was held that a judgment in favor of the plaintiff could not be sustained when the initiatory pleading contained no averment that the parties were not under the provisions of the act. To the same effect is the case of Dietz v. Big Muddy Coal Co., 263 Ill. 480, 105 N.E. 289. The conclusions thus reached evidently proceed upon the theory that in order to overcome the presumption thus declared, it was necessary for the plaintiffs in the cases cited, upon whom the burden of proof was thus imposed, to allege in the initiatory pleadings and to prove at the trial that the employers for whom each rendered services when hurt had given notice of an election not to accept the provisions of the enactment.

Our statute creating the State Industrial Accident Commission clauses of which have hereinbefore been quoted, does not proclaim any presumption in favor of or against the employer or any other person, and hence it was unnecessary to allege in the complaint herein that the defendant, prior to the injury, had declared his election, in the manner prescribed, not to contribute to the industrial accident fund. The act last referred to confers a special privilege upon an employer, thereby releasing him from the common-law liability to respond in damages for a personal injury that has been caused by his...