Tamm v. Sauset

• Decision Date: 23 October 1913
• Parties: TAMM v. SAUSET et al.
• Court: Oregon Supreme Court

135 P. 868

67 Or. 292

TAMM v. SAUSET et al.

Supreme Court of Oregon

October 23, 1913

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Jesse Tamm against K. Sauset and the McDermott & Carmody Contracting Company. Judgment for plaintiff, and defendants appeal. Reversed.

E.B Seabrook, of Portland (Malarkey, Seabrook & Stott, of Portland, and C.C. Wilson, of Nyssa, on the brief), for appellants.

F.S Senn, of Portland (Rauch & Senn, of Portland, on the brief) for respondent.

McNARY J.

This is an action to recover damages for an injury to the person of plaintiff, sustained in August, 1911, while engaged upon the construction of a sewer in Corvallis. The city had let the contract to the defendant K. Sauset, who subcontracted to defendants McDermott & Carmody Contracting Company, a corporation. A description of the work includes First, the excavation; second, the construction of the arch and of the sides of the sewer. At the bottom of the sewer were inverted trenches, which were filled with concrete in order to form a permanent and substantial foundation for the sewer. In the construction work a gang of men with a steam shovel excavated the sewer ditch, followed by a crew operating a hoisting engine, who dug the invert in the bottom of the ditch and filled it with concrete, followed lastly, by artisans who constructed the brick and concrete work of the arch and sides of the sewer. At a time coincident with the accident, plaintiff, with other workmen, was engaged in moving the hoist from one portion of the work to another, requiring the use of a rope and capstan. One end of the rope was attached to the engine, the other wound around the capstan, which was firmly anchored to a "deadman." As the capstan revolved, it was the duty of plaintiff to take up the slack from the rope as it was unwound. Plaintiff took the position in his pleadings, and offered evidence in support thereof, that the rope supplied him was old, frayed, and worn out, being at one particular place spliced, where a loose strand hung therefrom, rendering it defective and dangerous, and that the unraveled strand of the rope became entangled on the "niggerhead" of the capstan, resulting in his arm being thrown over the "niggerhead," and thereby crushed and broken in several places. As a separate act of negligence, plaintiff alleges that the engineer who was running the engine was absent therefrom at the time of the accident, and on that account was unable to stop the engine in time to prevent plaintiff's injury.

Counsel for defendants take the side of the case, that K. Sauset was the original contractor, and that McDermott & Carmody Contracting Company was an independent contractor, owning all the machinery, rope, tools, and appliances used on the work; that K. Sauset had no contract with or owed no duty towards plaintiff, having no control or authority over the subcontractor. At the proper time, counsel for defendants interposed a motion for an order of nonsuit on behalf of K. Sauset, which the court overruled, and submitted the case to the jury, which returned a verdict for plaintiff in the sum of $6,000.

The one issue involved is whether defendant K. Sauset can avail himself of the defense of independent contractor. The pleadings examined in the light of the Employers' Liability Act (Laws 1911, p. 16) show plainly that the action is founded upon and comes within the purview of that enactment. Counsel for defendants, as decisive of their contention, rely upon the case of Lawton v. Morgan Fliedner & Boyce, 131 P. 314, which was an action to recover damages for a personal injury claimed to have been caused by defendant's negligence. The stage of action is well set by Justice Moore in the following language: "That on March 30, 1911, the time of the accident, Lieth and Hecker were the owners of a tract of land at the northeast corner of Grand avenue and East Stark street, Portland, Or., and prior thereto they had entered into a contract with the corporation, whereby it engaged to erect for them a building on the premises. In order to secure an adequate foundation for the structure, it became necessary to drive in the earth piling, upon the top of which the foundation might rest, whereupon the corporation made a contract with Davidson, by...