Rapp v. Multnomah County

• Decision Date: 19 October 1915
• Citation: 152 P. 243,77 Or. 607
• Parties: RAPP v. MULTNOMAH COUNTY.
• Court: Oregon Supreme Court

152 P. 243

77 Or. 607

RAPP v. MULTNOMAH COUNTY.

Supreme Court of Oregon

October 19, 1915

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by Charles Rapp against Multnomah County. Judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff was employed by Multnomah county in repairing the approach to a ferry maintained by the county across the Willamette river at Sellwood. He alleges that the task in hand consisted in excavating and grading for the purpose of receiving mudsills on which to lay the planking for the approach, and, while he was digging, a team driven by another employé came along near the pit in which he was at work, and one of the horses fell, striking the plaintiff, and inflicting an injury for which he would recover damages. It is charged in substance that the injury was caused by the negligent way in which the team was managed, and that the work could have been carried on with safety by requiring the teamster to keep away from close proximity to the plaintiff. A demurrer to the complaint was overruled. The defendant answered, denying the negligence and the injuries averred and interposed the defenses of contributory negligence negligence of a fellow servant, and assumption of risk. The answer was traversed by the reply. There was a judgment of $100 for the plaintiff, and the defendant appealed.

Samuel H. Pierce, of Portland (Walter H. Evans and Arthur A. Murphy both of Portland, on the brief), for appellant. Isham N Smith, of Portland (Lon L. Parker and Richard Talboy, both of Portland, on the brief), for respondent.

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

It is necessary only to consider the pivotal question in this case. It is whether or not the Employers' Liability Act (Laws 1911, p. 16) applies to counties in this state. The plaintiff declares under the last clause of section 1 of the act, reading thus:

"And generally, all owners, contractors, or subcontractors, and other persons having charge of, or responsible for, any work involving a risk or danger to the employés or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine, or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices."

The earlier part of the section lays its injunction upon--

"all owners, contractors, subcontractors, corporations or persons whatsoever engaged in the construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure."

A statutory duty is imposed upon the persons and corporations included within the purview of this statute. Although a plaintiff may be in the employ of those controlled by the law at the time of receiving an injury, his right to recover does not depend upon the contract of employment which the parties have made. It rests solely upon the legislative mandate the violation of which is a tort and not a breach of the contract. The law is not affected by the contract and a disobedience of the statute is not an infraction of the agreement. The instant case is an action for tort.

Section 358, L. O. L., says:

"An action may be maintained against any of the organized counties of this state upon a contract made by such county in its corporate character, and within the scope of its authority, and not otherwise."

These are plain words, and exclude an action for tort, unless the right to maintain the same can be derived from the Employers' Liability Act. It is the settled rule in this state that neither the state itself, nor one of its counties, which are but...