Ramseth v. Maycock

• Decision Date: 05 December 1956
• Citation: 304 P.2d 415,209 Or. 66
• Parties: Clarence A. RAMSETH, a Minor, by his Guardian Ad Litem, Chester A. Ramseth, Respondent, v. John G. MAYCOCK, Appellant, and The Oregon State Industrial Accident Commission, Intervenor-Appellant.
• Court: Oregon Supreme Court

Page 415

304 P.2d 415

209 Or. 66

Clarence A. RAMSETH, a Minor, by his Guardian Ad Litem, Chester A. Ramseth, Respondent, v. John G. MAYCOCK, Appellant, and The Oregon State Industrial Accident Commission, Intervenor-Appellant.

Supreme Court of Oregon.

Argued and Submitted Oct. 10, 1956.

Dec. 5, 1956.

Ray H. Lafky, Asst. Atty. Gen. of Oregon, argued the cause for appellant and intervenor-appellant. With him on the briefs were Robert Y. Thornton, Atty. Gen. of Oregon, for appellant and for intervenor-appellant, and Tooze, Kerr, Hill & Tooze, Portland, for appellant.

Nels Peterson, Portland, argued the cause for respondent. On the brief were Peterson & Pozzi, Portland.

Before WARNER, C. J., and ROSSMAN, LUSK, BRAND, PERRY and McALLISTER, Justices.

ROSSMAN, Justice.

This is an appeal by John G. Maycock, defendant, and by the State Industrial Accident Commission, intervenor, from a judgment of the circuit court adverse to those two parties. The action which culminated in the challenged judgment was brought by Clarence A. Ramseth, a minor, through his father and guardian ad litem, against the aforementioned John G. Maycock to recover damages for injuries sustained while the plaintiff was riding in an automobile owned and operated by Maycock on April 23, 1952. The plaintiff sought judgment in the amount of $26,000 general damages and $1,000 special damages, reserving the right to amend his complaint at the time of trial to show the full amount of the special damages.

Pursuant to ORS 656.582, defendant requested the State Industrial Accident Commission, ORS 656.402, to intervene in his defense. The commission, thereupon, acting by the Attorney General, filed an intervening supplemental answer on behalf of the defendant alleging that the injury received by the plaintiff arose out of and in the course of his employment by the defendant, who was an employer covered by the Oregon Workmen's Compensation Act, ORS 656.002 through 656.990, and that the plaintiff's sole remedy was under that Act.

Issue was joined by the plaintiff's reply to the intervening supplemental answer and, under the provisions of ORS 656.582(2), the question 'Did the injuries, if any, of the plaintiff Clarence A. Ramseth arise out of and in the course of his employment by the defendant John Maycock on April 23, 1952?' was submitted to the jury. The jury, having returned a reply of 'no', judgment was entered dismissing the intervening supplemental answer.

Defendant and intervenor present six assignments of error. The first challenges the court's refusal to grant a motion for a directed verdict. The next four claim errors in the court's failure to give requested instructions, and the sixth is directed to the alleged failure of the court to advise a juror who addressed several questions to the court before the jury retired to deliberate upon its verdict.

Intervenor concedes that this court, in its consideration of the denial of the motion for a directed verdict, must look to the plaintiff's version of the facts in the event of any conflicts in the evidence.

Defendant owns and operates a service station near Tigard. In the course of business, products of The Texas Company, under the brand name of 'Texaco', are primarily sold. In the spring of 1951, plaintiff, then a high school student, 17 years of age, approached defendant with the view of securing part-time employment. Very little was said at that time beyond the agreement that defendant would call plaintiff when he needed him and pay at the rate of one dollar per hour for his services. Plaintiff testified to the arrangement which developed as follows:

'Q. Now, Clarence, did you work--this sounds funny--did you work steady part time for him, did you work every single week for Mr. Maycock or were there weeks you were not called at all?

'A. Well, I could expect to, once a week. You might call it steady. But other than that, there was no guarantee. I mean, there was Saturdays, Sundays, maybe once or twice during the week, but there was nothing definite that I would work any certain day or next week.'

April 22, 1952, plaintiff went to the defendant's station to purchase gasoline. He had not worked for several days prior to that date. At that time defendant asked plaintiff whether he would like to attend a Texaco dealer meeting and dinner to be held in McMinnville on the following evening. Plaintiff was free to accept or reject the invitation as he saw fit. Defendant said that plaintiff would have a good time and also mentioned that he, defendant, was to receive a plaque in recognition of his having been a Texaco dealer for ten years.

Plaintiff accepted the invitation and the next evening defendant called for plaintiff and, with two other employes, drove to the meeting place in McMinnville. The meeting lasted for over two hours and was devoted primarily to the showing of three motion pictures illustrating various Texaco products and their promotion at service stations. After the films food was served.

Plaintiff testified that the meeting 'didn't leave much impression on me, except other than good food there' and that 'it was more or less of a get-together.' It was his opinion that the meeting had been 'aimed' mainly at the employers rather than the employes.

On the return trip to Tigard, immediately following the meeting, the accident occurred in which the plaintiff sustained the injuries here complained of.

A consideration of the statutory language 'arising our of and in the course of his employment' has more often been presented to this court in situations in which the employe has sought to avail himself of the coverage of the act. Although that is not the case in this instance, the phrase must, nevertheless, be applied in the same manner. Lamm v. Silver Falls Timber Co., 133 Or. 468, 277 P. 91, 286 P. 527, 291 P. 375, appeal denied 282 U.S. 812, 51 S.Ct. 214, 75 L.Ed. 727.

Courts have repeatedly cautioned that the reading of other decisions is normally of little assistance when this issue is presented and that each case must be decided on its own particular facts. Some guides, however, have been set forth. It, of course, is true that the words 'arising out of and in the course of his employment' should be given a broad and liberal interpretation so as to effectuate better the statute's policy of evenly distributing the costs of injuries to workmen.

The words 'arising out of' are nor mally said to require a causal connection between the employment and the accident, while the words 'in the course of' point to the time, place and circumstances under which the accident takes place. However, 'the mere fact that the employment brought the injured person to the place of the accident is not sufficient.' Stuhr v. State Industrial Accident Commission, 186 Or. 629, 208 P.2d 450, 452.

With these principles in mind, we shall turn to the evidence to determine whether it presented disputed questions of fact relating to material propositions of law. If such questions were raised by the evidence, and we believe that they were, then the motion for a directed verdict was properly denied.

One of the issues presented by the testimony was whether plaintiff would have had to work at the filling station on the night of the meeting had he chosen not to attend the meeting. Plaintiff testified that no such suggestion had been made by defendant, while defendant testified that plaintiff had been offered the alternative of attending the meeting or working.

Again, there was the question of the motive of defendant in inviting plaintiff to the meeting. It was defendant's contention that he wanted plaintiff to see the films so that he would receive training and thereby improve his usefulness as an employe. Plaintiff, on the other hand, testified that both from the nature of the invitation and the subject matter of the meeting it was his conclusion that he had been asked to come along and share in good food and a good time. Another possible motive raised by the evidence was the desire of defendant to assure himself of an appreciative audience at the function at which he was to receive his ten year service award. In arriving at its conclusion to this question, the jury may well have taken into account the fact of plaintiff's youth and the intermittent nature of his employment.

A further dispute was whether the contract of employment reasonably contemplated that plaintiff would be invited to dealers' meetings. Defendant admitted that nothing on this subject was said at the time of hiring, but inferred that plaintiff should have known this fact from his past employment at another service station. Plaintiff's denial that the contract of employment contemplated attendance at such meetings raised another issue of fact for the determination of the jury.

Accepting plaintiff's version, as we must, the situation unfolds as an invitation by an employer to an employe to attend a dinner, which, though it was connected with the business, was not related to the employment. The employe was not being paid for his time, was free to attend or not as he saw fit, was not on the premises of the employer at the time of the injury, and would otherwise not have worked at the station during that period. In addition, the function was not contemplated as an incident of the employment at the time of hiring. The jury, therefore, could well have found that the injury sustained on the return trip did not 'arise out of and in the course of' plaintiff's employment.

Before proceeding to a discussion of the cases presented by intervenor's able and extensive brief, which we believe are distinguishable on their facts, several authorities more in point will be discussed. Hildebrand v. McDowell Furniture Co., 212 N.C. 100, 193 S.E. 294, 301, was a proceeding under the North Carolina Workmen's Compensation Act to recover for the death of one Wesley Williams, which allegedly resulted from injuries received in an accident 'arising out of and in...