Shoemaker v. Johnson

• Decision Date: 03 November 1965
• Citation: 241 Or. 511,407 P.2d 257
• Parties: Alvy SHOEMAKER, Respondent, v. Arnold JOHNSON and Melvin Wallace, Appellants.
• Court: Oregon Supreme Court

Page 257

407 P.2d 257

241 Or. 511

Alvy SHOEMAKER, Respondent, v. Arnold JOHNSON and Melvin Wallace, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 8, 1965.

Decided Nov. 3, 1965.

Leo Levenson, Portland, argued the cause for appellants. With him on the briefs was Pat Dooley, Portland.

Philip A. Levin, Portland, argued the cause for respondent. With him on the brief were Pozzi, Levin & Wilson, Portland.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL ^*, GOODWIN, DENECKE and HOLMAN, JJ.

PERRY, Justice.

The plaintiff obtained a verdict for damages for personal injuries against the defendants Johnson and Wallace. These defendants contend that they and the plaintiff's employer are employers subject to the Workmen's Compensation Act and, therefore, are immunized against plaintiff's claim. Defendants appeal from the trial court's findings and conclusions that such defendants are not immune. The trial court dismissed the action against the defendant Peter Kiewit Sons' Co.

Kiewit had a contract with the state to construct a portion of Interstate Highway No. 5 in southern Oregon. Plaintiff was a driver employed by Page Paving Co. who had a contract with Kiewit to mix, haul, and spread asphalt. The defendant Johnson had a contract with Kiewit to haul rock. Defendant Wallace was an employee driving for Johnson. All the defendants except Wallace were employers subject to the Oregon Workmen's Compensation Act.

Kiewit owned some land south of where the actual highway work was being done. On this land Kiewit's stockpiles of rock, maintenance sheds of the employer-defendants, and Page's asphalt plant were located. When Kiewit had the roadbed ready for the rock, Johnson hauled it from the stockpile to the roadbed where it was dumped. After the rock was put in place by Kiewit, Page hauled the asphalt and dumped it in its paving machine, which placed it on top of the rock.

The trucks hauling the rock and asphalt made the roundtrip to and from the paving operation over that portion of the new Interstate 5 Highway which was not yet open for public travel and on portions of old Highway 99. The plaintiff was injured on Interstate 5 while he was driving a loaded truck. He swerved and overturned his vehicle attempting to avoid a truck driven by Wallace, who was just entering Interstate 5 from Highway 99.

ORS 656.154 provides:

'(1) If the injury to a workman is due to the negligence or wrong of a third person not in the same employ, the injured workman, or if death results from the injury, his widow, children or other dependents, as the case may be, may elect to seek a remedy against such third person. However, no action shall be brought against any such third person if he or his workman causing the injury was, at the time of the injury, on premises over which he had joint supervision and control with the employer of the injured workman and was an employer subject to ORS 656.002 to 656.590.

'(2) As used in this section, 'premises' means the place where the employer, or his workman causing the injury, and the employer of the injured workman, are engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in operation.

'(3) No person engaged in pickup or delivery of any goods, wares or merchandise to or from the premises of any employer other than his own shall be deemed to have joint supervision or control over the premises of a third party employer.'

The trial court made a conclusion of law that the injury occurred upon 'premises' within the above statute. It further concluded that all of the defendants 'were engaged in the furtherance of a common enterprise in that they were occupying the same premises and were performing component parts of a general undertaking.' These conclusions are not in issue.

The trial court found: 'Conferences between Kiewit and defendant Johnson and Page Paving were for the purpose of informing Johnson and Page Paving of the decisions already made by Kiewit.' This finding undoubtedly referred to decisions regarding when and upon what route the trucks were to haul. The testimony of Kiewit's superintendent upon this issue was not completely clear, but a reasonable interpretation of it would support the trial court's finding.

The trial court made a finding of fact that Kiewit had exclusive control and supervision over the entire hauling area, including the place of the injury, and made a conclusion of law: 'No joint supervision and control existed between the defendants Johnson and Wallace and plaintiff's employer, Page Paving Co.' The making of this finding and conclusion is defendant's principal assignment of error.

The above-quoted statute has been interpreted many times by this court and many of the voids in the outline of the statute have been marked in by our decisions.

As a factual categorization, this is a case of a construction project in which an employee of one subcontractor is injured on the project by an employee of another subcontractor. We have not decided exactly such a case; however, we have several decisions involving construction employees.

Plummer v. Donald M. Drake Co., 212 Or. 430, 320 P.2d 245 (1958), was an action for injuries by an architect's employee who was injured on the job site while supervising the construction of a school. The defendant was the general contractor for the school. The issue was decided upon the pleadings. However, we held that proof of the above-stated facts would bar plaintiff from recovering; so it must necessarily be inferred that we held that the above-stated facts established joint supervision and control by the architect and general contractor over the construction project.

In Fisher v. Rudie Wilhelm Warehouse Co., 224 Or. 26, 355 P.2d 242 (1960), the plaintiff was an employee of a subcontractor on a shopping center construction job. His employer, Portland Wire, had the subcontract to erect the structural steel. The defendant was engaged by Portland Wire to haul the steel to the job and unload it with a truck crane. Plaintiff showed defendant where to unload steel and was assisting with the unloading when injured. We reversed the trial court and held as a matter of law that Portland Wire and Wilhelm had joint supervision and control of the premises.

In Pruett v. Lininger, 224 Or. 614, 356 P.2d 547 (1960), the injured plaintiff was an employee of a general contractor building a bridge. The defendant subcontractor furnished the general contractor with ready-mixed concrete and a crane and bucket to place the concrete. The crane operator was on defendant's payroll but placed the concrete pursuant to the directions of the general contractor's employees, including the plaintiff. While placing the concrete plaintiff was burned by electricity when the crane contacted a charged electric line. Assuming the crane operator to be the defendant's employee, we held that the general contractor and the crane and concrete subcontractor were in joint supervision and control of the premises. The opinion contains several general statements which are guides to interpreting the statute:

'* * * In Nelson et al. v. Bartley et al. [70 Or.Adv.Sh. 1529, 222 Or. 361] 352 P.2d 1083 [1960], we held that the exclusive coverage of the Workmen's Compensation Act applies when there is an operational co-mingling of the workmen of two or more covered employers even though only one of the covered employers may be said to be in actual control of the site where the work is under way. [at 623, 356 P.2d at 551]

'* * *

'* * * a third-party action authorized by ORS 656.154 is nevertheless available unless the two employers were engaged in the performance of component parts of an undertaking on premises occupied by the workmen of both covered employers. * * * [at 624, 356 P.2d at 552]

'* * *

'* * * It is the legislative policy of this state to encourage employers to accept the coverage of the Compensation Act by making that act the exclusive remedy for industrial accidents suffered by workmen of the covered employer as well as by the workmen of other covered employers engaged in the furtherance of a common operation, where the workmen of both employers are jointly involved in the work out of which the accident arises. * * *'

Hadeed v. Wil. Hi-Grade Concrete Co., 238 Or. 513, 395 P.2d 553 (1964), concerned facts legally identical to Pruett v. Lininger, supra (224 Or. 614, 356 P.2d 547). We held:

'* * * As in the cases cited, there are found here a concert of effort and a mingling of the employees of both employers and their common exposure to the hazards of the work going forward, all designed to facilitate its accomplishment. Within the construction heretofore placed by us upon ORS 656.154 (see, e. g., Pruett v. Lininger et al., 224 Or. 614, 356 P.2d 547), the premises where plaintiff was injured were premises over which the two employers had joint supervision and control. * * *' (238 Or. at 516, 395 P.2d at 555)

The concurring opinion in Johnson v. Timber Structures, Inc., 203 Or. 670, 281 P.2d 723, has been repeatedly quoted by plaintiffs seeking to avoid the defense afforded by ORS 565.154. However, in that case the concurring opinion states:

'* * * On the other hand, if several contractors or subcontractors are actively engaged at the same time on the same project and their several employes are exposed to the same hazards created by such mutual engagements, and an employe of one of the employers is injured on the job, such employe's sole remedy would be that of compensation under the act.' (at 685-686, 281 P.2d at 730)

The plaintiff concedes that applying the facts in this case to our prior decisions interpreting 'joint supervision and control' as used in the statute would require a reversal of the judgment against the defendant Johnson.

He urges, however, that our former opinions are in error in that, if the term 'joint supervision and control' is literally construed, as he contends...