Pruett v. Lininger

• Decision Date: 26 October 1960
• Citation: 356 P.2d 547,224 Or. 614
• Parties: Leslie N. PRUETT, Respondent, v. Blanche V. LININGER, Earle Lininger, Raymond B. Lininger, Maurece Pearl Lininger, Thelma M. Lininger, Bert Wright, and Gladys Lininger Wright, co-partners, doing business as M. C. Lininger and Sons, Appellants.
• Court: Oregon Supreme Court

Page 547

356 P.2d 547

224 Or. 614

Leslie N. PRUETT, Respondent, v. Blanche V. LININGER, Earle Lininger, Raymond B. Lininger Maurece Pearl Lininger, Thelma M. Lininger, Bert Wright, and Gladys Lininger Wright, co-partners, doing business as M. C Lininger and Sons, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 7, 1960.

Decided Oct. 26, 1960.

Robert B. Duncan, Medford, for appellants. On the briefs were Duncan, Brophy, Wilson & Duhaime, Medford.

Hugh B. Collins and Bernard P. Kelly, Medford, respondent. On the brief were Collins & Redden and Kelly & Kelly, Medford.

Before ROSSMAN, P. J., and PERRY, O'CONNELL, GOODWIN and KING, JJ.

GOODWIN, Justice.

The defendants appeal from a verdict and judgment for Leslie N. Pruett for damages resulting from severe burns inflicted by an electrical trauma in the course of his employment.

Pruett was employed as a construction worker by a partnership engaged in the general contracting business. He was working with concrete in the building of a bridge on a Jackson County road known as Ross Lane. The bridge crossed Jackson Creek parallel to an electrical transmission line. The wires were about 25 feet above the northern edge of the bridge.

On July 27, 1954, the day of the accident which gave rise to this litigation, there was present at the construction site a mobile crane. The crane was being used to swing a concrete bucket from a point near the bridge where concrete-mixer trucks disgorged their contents to the places on the bridge where Pruett's employers might utilize the cement during the course of construction. This crane was owned and operated by the defendants, all of whom are members of a partnership which was engaged in both the pre-mixed cement business and also in the business of renting heavy equipment.

On the day of the accident, the defendants, as they will be referred to hereafter, were the suppliers of the ready-mix concrete used in the construction of the bridge. While the evidence established that the business of selling concrete and the business of furnishing heavy equipment to other contractors did not always go hand in hand, the defendants were, on July 27, 1954, furnishing both services to Pruett's employers.

The defendants, like the employers of Pruett, had secured coverage for their workmen under the Workmen's Compensation Act. The man who was operating the defendants' crane on the date of the accident was a partner in the defendants' business, but there is no dispute that he was, like the other workmen of both employers, covered by the Compensation Act.

The procedure usually followed by Pruett's employers may be briefly described as follows: The defendants' ready-mix trucks would deliver their contents to the job by means of a chute fastened to the rear of the truck. At the point where the wet concrete left the chute, it became the duty of the purchaser (Pruett's employers) to place the concrete in the forms. If the forms were close enough to the truck, the operation was comparatively simple. The truck operator merely regulated the flow of the concrete down the chute to accommodate the workmen who spread the concrete and worked it into the forms. If the truck could not approach the forms close enough for direct placement into the forms, Pruett and his fellow workmen ordinarily wheeled the wet concrete away from the truck in wheeled bucket carts, or 'buggies', as the witnesses called them.

On or before the day of the accident, it was decided by Pruett's employers to utilize a crane with a bucket suspended from a boom to receive the contents of the ready-mix trucks. The crane would then swing the wet concrete out over the bridge to the point where it was desired that it be placed in the forms. The use of the crane eliminated the necessity of workmen wheeling the buggies over the surface of the bridge and also speeded the work. Since the bridge contractors did not own a crane, they hired, at an hourly rate, the use of the defendants' crane.

The financial arrangements between Pruett's employers and the defendants were not formalized in writing. The evidence showed that the defendants charged Pruett's employers the prevailing price for concrete delivered to the job, and then charged an additional sum for the hourly use of the crane with an operator. The crane operator was selected by the defendants, paid by them, and was under the supervision of the defendants in the manner in which he operated and maintained the equipment. The operator was, however, under the supervision of the bridge contractors in that they could and did give him instructions with reference to when and where the concrete bucket was to be emptied. The testimony revealed that these instructions, as is customary in work of that kind, were for the most part unspoken, and were given by signals and gestures from the workmen on the bridge. Pruett was one of the workmen who gave signals to the crane operator.

While the work described above was in progress, Pruett either pushed the crane bucket, or had a hand on it, when the boom from which the bucket was suspended swung into the proximity of the power line above the bridge. There was a conflict in the testimony whether Pruett pushed the cement-filled bucket or whether the crane operator caused the cable to approach the power line. In any event, the cables suspending the crane bucket either touched the power line or came so close to the wire that a charge of 7,200 volts of electricity was caused to pass through Pruett's body. The evidence on the question of negligence was resolved by the jury in favor of Pruett.

There are numerous assignments of error, but the key question is whether the trial court erred in ruling upon two affirmative defenses, which, under the facts stated above, presented questions of law for the court.

The defendants had pleaded two theories which would bring the case within the exclusive coverage of the Workmen's Compensation Act: (a) joint supervision and control under ORS 656.154; and, in the alternative, (b) that the crane operator was in the same employ as Pruett on the theory that the crane operator was a loaned employe. Each theory was sufficient, if established, to bar the action and to limit Pruett's remedy to his benefits under the Workmen's Compensation Act.

The pleading of alternative defenses, as of alternative statements of the same cause of action, is permissible so long as each is separately stated. Cook v. Kinzua Pine Mills Co. et al., 207 Or. 34, 293 P.2d 717; Susznik v. Alger Logging Co., 76 Or. 189, 147 P. 922, Ann.Cas.1917C, 700; Clark, Handbook of the Law of Code Pleading (2d ed. 1947) 629, § 99; 1 Bancroft, Code Pleading (1926) 401-414, §§ 248-256. Our code provides that the defendant may plead any new matter constituting a defense, ORS 16.290(b); separate defenses must be pleaded separately, ORS 16.090; and pleadings must be liberally construed, ORS 16.120. It is within the trial court's discretion whether to allow a motion to require an election. Cook v. Kinzua Pine Mills Co. et al., supra, 207 Or. at page 59, 293 P.2d at page 728.

It is the rule in Oregon that inconsistent defenses may not be pleaded when they are so contradictory that if one is true then the other must be false in fact. Susznik v. Alger Logging Co., supra. Such a pleading may be stricken as sham under ORS 16.100. The strict effect of this rule, however, is limited to those pleadings in which the falsity of one alternative requires no exposition, as where an answer alleges that a writing was not executed and then alleges that it was executed for a particular purpose. Johnson v. Sheridan Lumber Co., 51 Or. 35, 93 P. 470. Where the apparent inconsistency is in the application of a rule of law to the facts pleaded in the alternative, the pleading is not inconsistent. 71 C.J.S. Pleading § 42, p. 114. Clark, op. cit., supra at 631.

If the crane operator was under the control of Pruett's employers, even though not on their payroll, he would have been a loaned employe. If such a relationship were established, the defendants claimed, the loaned-employe theory would have made the crane oprator and the injured workman both servants of the same master and therefore the sole remedy for Pruett's injuries would have been the benefits scheduled under the act. ORS 656.154.

This court has recognized that a loaned employe can be the fellow servant of the workmen of the borrowing employer under certain factual conditions. In Galer v. Weyerhaeuser Timber Co. et al., 218 Or. 152, 175, 344 P.2d 544, we held that conflicting evidence concerning the relationship made the question one for the jury.

In the case at bar, unlike in the Galer case, supra, the evidence was not specifically directed to the question of a loaned-employe relationship. The jury trial was commenced directly, without a preliminary ruling upon the relationship of the parties, and the plaintiff proceeded at all times on the theory that the crane operator was the employe of the defendants. The defendants were not permitted to try the issue to the court in advance of trial as is the more orderly procedure. ORS 656.324(3); Claussen v. Ireland, 216 Or. 289, 338 P.2d 676. By the time the plaintiff had completed his case, and the defendants attempted to renew the question of the applicability of ORS 656.154 on a motion for a judgment of non-suit, the evidence may have been subject to more than one interpretation on the theory of a loaned employe. It is unnecessary, however, to decide whether the loaned-servant theory should have been submitted to the jury. Other facts which were established beyond dispute in the plaintiff's case limited the rights of the injured workman to his benefits under the Workmen's Compensation Act.

Assuming on the plaintiff's behalf...