Shelton v. Paris

• Decision Date: 07 October 1953
• Citation: 199 Or. 365,261 P.2d 856
• Parties: SHELTON v. PARIS.
• Court: Oregon Supreme Court

Page 856

261 P.2d 856

199 Or. 365

SHELTON v. PARIS.

Supreme Court of Oregon.

Argued Sept. 22, 1953.

Decided Oct. 7, 1953.

William D. Green, Jr., Roseburg, argued the cause and filed a brief for appellant.

Edw. M. Murphy, Roseburg, argued the cause for respondent. On the brief were Yates, Murphy & Carlson, Roseburg.

Before LATOURETTE, C. J., and WARNER, ROSSMAN, LUSK, BRAND and PERRY, JJ.

PERRY, Justice.

This is an action brought by the plaintiff under the Employers' Liability Act, O.C.L.A. § 102-1601 et seq., against the defendant to recover for personal injuries suffered by the plaintiff while in the employ of the defendant. The plaintiff's complaint generally alleges that the defendant was engaged in logging operations; that he required the plaintiff to ride upon the back of a tractor in a place declared by the Industrial Accident Commission, in the interests of safety, to be prohibited; and that as a result thereof on June 28, 1948, the plaintiff was injured. The complaint was filed January 24, 1951, and the defendant demurred thereto, the principal ground therefor being that the cause of action was not brought within the two year statute of limitations: 'An action * * * for any injury to the person or rights of another, not arising on contract, * * *.' § 1-206, subd. 1, O.C.L.A. Upon this ground the demurrer of the defendant was sustained by the trial court, the action was dismissed, and the plaintiff appeals.

Plaintiff contends that the six year statute of limitations, § 1-204, subd. 2, O.C.L.A., as amended by ch. 492, Oregon Laws 1947, is applicable as the liability is one created by statute.

The sole question before us is whether or not the Employers' Liability Act, including therein the rules and regulations of the State Industrial Accident Commission, which have the force and effect of law, creates a liability by statute. The test of 'a liability created by statute' is whether or not "* * * independent of the statute, the law implies an obligation to do that which the statute requires to be done, and whether, independently of the statute, the right of action exists for a breach of the duty or obligation imposed by the state.' Wood, Lim. Act § 39.' State v. Baker County, 24 Or. 141, 146, 33 P. 530, 531. This definition has been generally accepted and approved by the majority of the courts of this country. 37 C.J. 783, Limitations of Actions, § 123; 53 C.J.S., Limitations of Actions, § 83; 25 Words and Phrases, 61, and Cumulative Annual Pocket Part.

The Employers' Liability Act, § 102-1601, O.C.L.A., provides that all employers engaged in 'any work involving a risk or danger to the employees 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'.

Section 102-1228, O.C.L.A., imposes upon every employer the duty to furnish the employee a safe place of employment, together with such tools, safety devices and safeguards as shall be reasonably necessary to protect the life and safety of the employee. This section in general enjoins upon an employer the same duties that were required by the common law. Morandas v. L. R. Wattis Co., 71 Or. 367, 142 P. 537; Hoffman v. Broadway Hazelwood, 139 Or. 519, 10 P.2d 349, 11 P.2d 814, 83 A.L.R. 1008.

Section 102-1601, O.C.L.A., enlarges the requirements of § 102-1228, O.C.L.A., by enjoining upon every employer of labor involving work wherein there is risk or danger to the employees the added requirement that he shall use every practicable protection for the safety of his employees regardless of the additional cost of the suitable safety appliances, material, and devices, subject only as he may be limited by the necessity for preserving the efficiency of the structure, machine, apparatus or device. The statute increases the burden of the employer in hazardous occupations, but not the liability. The gist of the action is the same, that is,--liability for negligence, but no new liability is created by statute, since the liability of an employer for his negligent act toward an employee existed in the common law. The Employers' Liability Act substitutes, in hazardous employments, a higher degree of care than the ordinary degree of care prevailing generally in the relationship between master and servant. Coomer v. Supple Investment Co., 128 Or. 224, 274 P. 302; Mallatt v. Ostrander Ry. & Timber Co., D.C., 46 F.Supp. 250, 252.

Employers not operating under the Workmen's Compensation Act, O.C.L.A. § 102-1701 et seq., in this state are not insurers. 'They are liable for consequences, not of danger, but of negligence * * *'; Adams v. Corvallis & E. R. Co., 78 Or. 117, 128, 152 P. 504, 508; Wychgel v. States Steamship Co., 135 Or. 475, 296 P. 863; Leavitt v. Stamp, 134 Or. 191, 293 P. 414; and if engaged in a hazardous occupation, as in this case, they are deprived of certain defenses. Parrott v. Hanson, 180 Or. 620, 175 P.2d 169; Camenzind v. Freeland Furniture Co., 89 Or. 158, 174 P. 139.

The defendant relies upon the case of Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E. 824, 104 A.L.R. 450. In that case the injury to the employee arose in the course of his employment through the inhalation of dust, resulting in a disease of the lungs. The New York Labor Law applicable to the state of facts in that case, McKinney's Consolidated Laws of New York, c. 31, Labor Law, § 417, was as follows:

'An air current sufficient to remove smoke and noxious gases and to insure the safety of every employee shall be conducted along every passageway and working place.' [Emphasis ours.]

Judge Learned Hand of the Circuit Court of Appeals for the district court of the United States for the western district of New York in the case of Stornelli v. United States Gypsum Co., 2 Cir., 134 F.2d 461, 462, which was tried under the laws of the state of New York, commenting upon the case of Schmidt v. Merchants Despatch Transp. Co., supra, makes the following observation, which distinguishes the labor law of the state of New York and the statutes of this and similar states as regards the Employers' Liability Act:

'* * * That decision turned upon the meaning of sub. 2 and sub. 3 of § 299 of the New York Labor Law; of which the first required 'all machinery creating dust or impurities' to 'be equipped with proper hoods and pipes connected to an exhaust fan of sufficient * * * power to remove such dust'; and the second required that 'suction devices shall be provided which shall remove * * * impurities * * * by means of proper hoods connected to conduits and exhaust fans.' The court held that these enactments were for the benefit of those employees who might be exposed to the danger of breathing dust, and that they 'created' a 'liability' within sub. 2 of § 48 of the Civil Practice Act, as distinguished from giving support to a finding that the employer had failed to exercise the care that he should have: i.e., been guilty of 'negligence.' [Emphasis ours.]

'* * *

'* * * We need not decide whether a statute, which imposed a duty upon employers measured in the same terms that the common-law measures their duty, would 'create' a 'liability' under sub. 2 of § 48 of the New York Civil Practice Act, or whether the action would remain one 'to recover damages for * * * a personal injury, resulting from negligence' under sub. 6 of § 49. Section 417 of the Labor Law has nothing to do with 'negligence' in the sense that that word is used in sub. 6 of § 49 of the Practice Act.'

Judge Foley in the case of Gonzalez v. Pacific Fruit Express Co., D.C., ...