Rorvik v. North Pacific Lumber Co.

• Decision Date: 25 January 1921
• Citation: 99 Or. 58,195 P. 163
• Parties: RORVIK v. NORTH PACIFIC LUMBER CO. ET AL.
• Court: Oregon Supreme Court

195 P. 163

99 Or. 58

RORVIK v. NORTH PACIFIC LUMBER CO. ET AL.

Supreme Court of Oregon

January 25, 1921

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

On rehearing. Former opinion adhered to, and judgment affirmed.

For former opinion, see 190 P. 331.

This appeal was originally presented to one department, but upon the petition of the defendants, receivers, a rehearing was granted, and the appeal was heard by the court sitting en banc. The first hearing resulted in an affirmance of the judgment. The reader is referred to the original opinion reported in 190 P. 331, for a statement of the facts.

The defendants contended in their petition for a rehearing, and they especially urged at the second oral argument that:

(1) "It was error to uphold the trial court in instructing the jury that the plaintiff could recover if the work in which defendants were engaged at the time of the injury to and the death of C. P. Rorvik involved a risk or danger to the public"; (2) "it was error to hold that A Maude Rorvik could recover $5,000 from the Industrial Accident Commission of California and $12,500, from the defendants in this action": and (3) "it was error to hold that the injury and death of Capt. C. P. Rorvik was a maritime tort."

S. C Spencer, of Portland (Emmons & Webster and Wilbur, Spencer Beckett & Howell, all of Portland, on the brief), for appellants.

Homer D. Angell, of Portland (Ira S. Lillick, of San Francisco, Cal., and Angell & Fisher, of Portland, on the brief), for respondent.

HARRIS, J. (after stating the facts as above).

In the original opinion we said:

"We deduce the rule that the Employers' Liability Act does not extend to the protection of the general public as such, but that it does extend its protection to employés of the particular person owning or operating dangerous machinery or engaged in hazardous employments, and to other persons or employés of other corporations whose lawful duties require them to be or work about such machinery, or expose themselves to the hazards of the machinery or appliances in use by the owner thereof."

"This," the defendants concede in their petition for a rehearing, "is a clear, concise, and correct statement of the law as we understand it," but the defendants insist, "This law was not followed in this case." According to the contention of the defendants, "the complaint was drawn, and the case tried so far as plaintiff is concerned, and the jury was instructed upon the theory that the Employers' Liability Act of the state of Oregon extended to the protection of the general public as such."

We are unable to concur with the defendants. It is true that the trial court did repeatedly say to the jury in effect that the receivers of the lumber company were within the embrace of the Employers' Liability Act (Or. L. §§ 6785-6790 inc.) if the work carried on by them involved a risk or danger to the public; but it is also true that the court gave additional instructions which must be kept in mind, for, when testing the correctness of the instructions to the jury, we must view the charge as a whole. In substance, the court told the jury that the plaintiff was entitled to prevail if the defendants were engaged in a work involving a risk or danger to the public, and if the decedent was a member of the public rightfully upon the premises where he was injured; and then by a subsequent instruction, as pointed out in the original opinion, the trial judge explained to the jury what he meant by the words "a member of the public" in the following language:

"In this connection, I instruct you that, if you find the decedent, at the time he received the alleged injuries, was upon the wharf of the North Pacific Lumber Company, defendant, and was in charge of the loading of the Steamship Klamath, either upon the express or implied invitation of the receiver, and that as captain of the said steamship his duties in respect thereto required that he be upon the wharf, that in that event he was a member of the public, and as such was entitled to whatever protection the law provides for the public. Or if you find that the decedent was in charge of the loading of the vessel, and that the vessel was being loaded at the said wharf at the express or implied invitation of the receiver, that by reason thereof the decedent was entitled to go upon the wharf if it was reasonably necessary for him so to do in order to superintend the loading of the vessel, and while upon the wharf under such conditions he was a member of the public, he was, as a matter of law, rightfully upon the wharf."

The uncontradicted evidence shows that at the time of the accident the decedent was engaged in the work of superintending the loading of the ship. Capt. Rorvik was not a loiterer, nor a trespasser, nor a mere idle member of the public; but he was engaged in work at the very moment of his hurt. He was in very truth a workingman at the time when and the place where he was hurt. The right of the plaintiff to recover was in the final analysis made to depend upon whether Capt. Rorvik was rightfully upon the wharf, and his right to be on the wharf was in turn made to depend upon whether he was there performing work upon the express or implied invitation of the defendants. The charge, taken in its entirety, is sufficiently clear, and it is not likely that the jury was or could have been misled to the extent of believing that the plaintiff was entitled to recover if the decedent was a mere member of the general public, regardless of whether or not he was engaged in the performance of work while lawfully on the premises. The charge, considered as a whole, required the jury to find, among other things, that the decedent at the time of the injury was lawfully and properly upon the wharf and engaged in the work of superintending the loading of the ship, before a verdict could be returned for the plaintiff; and hence the law as it is stated in the original opinion was applied by the trial jury.

At this stage of the discussion we may for the moment pass over the defendants' second point, and proceed with the investigation of the third point; and, after disposing of it, we shall return to the second point urged by the defendants. After further study of the record we are persuaded that we must conclude that it cannot be said as a matter of law that Capt. Rorvik's death resulted from a maritime tort. The theory has been advanced that the tort was a maritime tort, for the reason that Rorvik was engaged in a maritime contract. The test for determining whether a tort is a land or maritime tort is not the same as the test for determining whether a contract is a land or a maritime contract. The character of a tort is determined by the locality of the act; and consequently the fact that a person is injured while performing a maritime contract does not necessarily determine the character of the tort. Swayne & Hoyt v. Barsch, 226 F. 581, 590, 141 C. C. A. 337; Thomas v. Lane, F. Cas. No. 13,902, 2 Sumn. 1, 9; Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 59, 34 S.Ct. 733, 58 L.Ed. 1208, 51 L. R. A. (N. S.) 1157; Phila., Wil. & Balt. R. Co. v. Phil. & Havre de Grace Steam Towboat Co., 23 How. 215, 16 L.Ed. 433; The Plymouth, 3 Wall. 20, 25, 18 L.Ed. 125. According to the complaint, a portion of the lumber piled upon the wharf was suddenly shoved forward, striking Rorvik, "by reason of which he was knocked off the said wharf, receiving therefrom mortal injuries, from the effects of which he died." The first further and separate defense found in defendants' answer is framed upon the theory that from some cause unknown to the defendants Rorvik fell from the wharf "on and against the side of said steamship Klamath, and from thence onto some logs and timbers in the Willamette river; that all of the injuries received by the said decedent were received either on the steamship Klamath while the same was in the Willamette river or were received on logs and timber floating in said river; that the said Willamette river was a navigable river." The allegations of this first further and separate defense are denied by the reply. The uncontradicted evidence is that some of the lumber in the pile, beside which Rorvik was standing, was suddenly shoved forward and struck him and knocked him off the wharf. The evidence further shows that Rorvik's back was broken. There was no attempt by the defendants to show that the broken back was the immediate result of striking the logs in the river, and not the immediate result of being struck by the lumber on the wharf. Notwithstanding the allegations of the first further and separate defense the defendants apparently abandoned any attempt to sustain those allegations by any evidence offered at the trial; and, moreover, the defendants did not attempt in their original brief to urge the first further and separate defense as a reason for defeating the claim of plaintiff. Furthermore, in their petition for a rehearing the defendants say:

"It is not a maritime tort; the captain received his injury while on the land. * * * The matter was not discussed in any of the briefs, nor in the oral arguments as to whether or not it was a maritime tort."

Thus it appears not only that we cannot say as a matter of law that the tort was a maritime rather than a land tort, but it also appears that the defendants themselves concede, and, indeed, insistently contend, that it was a land tort; and consequently we must agree with the contention of the defendants that we cannot say that

the tort was a maritime tort. From this conclusion it follows as a natural sequence that there was nothing in the character and nature of the tort to prevent the Workmen's Compensation Act of California (St. 1913, p. 279) from operating. By...