Smith v. State Indus. Acc. Commission

• Decision Date: 11 July 1933
• Citation: 144 Or. 480,23 P.2d 904
• Parties: SMITH v. STATE INDUSTRIAL ACCIDENT COMMISSION. [*]
• Court: Oregon Supreme Court

23 P.2d 904

144 Or. 480

SMITH v. STATE INDUSTRIAL ACCIDENT COMMISSION. ^[*]

Supreme Court of Oregon

July 11, 1933

Department 2.

Appeal from Circuit Court, Clackamas County; E. C. Latourette Judge.

Proceeding under the Workmen's Compensation Act by Eugene R. Smith against the State Industrial Accident Commission. From a judgment of the circuit court setting aside an order of the Industrial Accident Commission, and awarding compensation to claimant, the Commission appeals.

Reversed.

Miles H. McKey, of Salem, Asst. Atty. Gen. (I. H Van Winkle, Atty. Gen., and Victor R. Griggs, Asst. Atty Gen., on the brief), for appellant.

John W Loder and D. C. Latourette, both of Oregon City, and Lyman E. Latourette, of Portland, for respondent.

RAND Chief Justice.

This is an appeal from a judgment of the circuit court for Clackamas county, which sets aside an order of the State Industrial Accident Commission and awards compensation to plaintiff under the Workmen's Compensation Act (Code 1930, § 49-1801 et seq.) for injuries alleged to have been sustained while employed as a workman in the construction of a building.

The facts are wholly undisputed, and the questions presented are purely questions of law. At the time of the injury, plaintiff was a member of a local organization known as Central Grange No. 276, and that organization was engaged in the construction of a grange hall for the use of its members. It had employed one man as overseer of the work, while most, if not all, of the balance of the labor in the construction of the building was being performed gratuitously by the members of the organization. Plaintiff had verbally promised to donate one day's work, for which he was to receive no money consideration nor any other benefit or advantage except such as he was to share in common with the other members. While so at work, he was injured.

Where one person promises to perform services for another, as did the plaintiff here, with the understanding that the services are to be performed gratuitously, the promise, until performed, is revocable, and, when performed, it creates no legal obligation to pay therefor upon the part of the person for whom the services were performed. Such a promise does not constitute a contract, but is a mere nudum pactum, and creates no contractual liability upon the part of either. However, in certain cases legal obligations may arise from the negligent manner in which the promisor performs the promise. That question, however, is not before us.

Under plaintiff's own testimony, there was no contract of hiring in the instant case. The Workmen's Compensation Act of this state deals only is cases where the relation of master and servant exists, and there must be a contract of hire. As held in Landberg v. State Industrial Accident Commission, 107 Or. 498, 502, 215 P. 594, 596: "The relation that must exist to constitute one person an employer and another person a workman, under the Compensation Act, is the relation of master and servant, and this relation originates wholly in contract, although the contract...