Thomas v. Foglio

• Decision Date: 23 May 1962
• Citation: 231 Or. 187,371 P.2d 693
• Parties: Louis C. THOMAS, Respondent, v. Alfred FOGLIO, Appellant.
• Court: Oregon Supreme Court

Page 693

371 P.2d 693

231 Or. 187

Louis C. THOMAS, Respondent, v. Alfred FOGLIO, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 9, 1962.

Decided May 23, 1962.

Glenn R. Jack and James O. Goodwin, Oregon City, argued the cause for appellant. On the briefs were Jack, Goodwin & Anicker and Glenn R. Jack, Oregon City.

Gordon G. Carlson, Roseburg, argued the cause for respondent. On the brief were Clifford S. Beckett, Oregon City, and Yates, Murphy & Carlson, Roseburg.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN and O'CONNELL, JJ.

O'CONNELL, Justice.

This is an action to recover damages for personal injuries suffered by plaintiff while loading logs on defendant's log truck. The action was brought and tried upon the theory that defendant had violated the Employers' Liability Law, ORS 654.305. The jury returned a verdict for plaintiff whereupon defendant moved for a judgment n. o. v., or in the alternative, for a new trial. The motion was denied and defendant appeals.

This is the second appeal arising out of the same cause. In the first appeal, Thomas v. Foglio, 225 Or. 540, 358 P.2d 1066 (1961), we remanded the cause for a new trial to permit the jury to determine whether Foglio was a lessor of the truck upon which the injury occurred or a contract hauler and thus an employer under the Employers' Liability Law.

The evidence adduced in the second trial of the cause included most of the evidence presented in the first trial and, in addition, there was further evidence relating to defendant's relationship as employer or lessor together with more specific evidence showing the participation of defendant's driver, Beckgren, in the loading operation. With these additions the facts set out in our opinion in the first appeal may be regarded as the statement of facts in the present case.

Defendant's first assignment of error relates to a question of procedure which we shall now explain. After all the evidence had been presented and plaintiff's opening argument had been completed defendant interposed an oral demurrer based upon the ground that the complaint omitted 'any reference to the type of his [defendant's] alleged employees or the work in which they were engaged' and that, therefore, the complaint failed to state facts sufficient to constitute a cause of action under the Employers' Liability Law. Before the cause was submitted to the jury plaintiff moved to amend his complaint to cure the alleged deficiency. The motion was granted and defendant's demurrer was overruled. Defendant assigns as error the court's action in permitting the amendment and in overruling defendant's demurrer.

ORS 16.390 provides:

'The court may, * * * at any time before the cause is submitted, allow such pleading or proceeding to be amended, * * * when the amendment does not substantially change the cause of action or defense, by conforming the pleading or proceeding to the facts proved.'

The facts proved at the trial warranted the request to conform the pleadings to the facts proved. The amendment did not substantially change the cause of action. It is apparent from the complaint that plaintiff was basing his claim upon the Employers' Liability Law. Therefore, the conditions specified in ORS 16.390 were satisfied and the trial court was warranted in allowing the amendment to plaintiff's complaint and overruling defendant's demurrer. ¹

Defendant next assigns as error the denial of his motion for a directed verdict made on the principal ground that defendant was immune from liability under ORS 656.154(1) ² for the reasons set forth in the margin. ³

It was necessary to raise this defense by supplemental pleadings, the question of immunity then being determined as a matter of law. ORS 656.324. In the first trial of the cause defendant filed a supplemental answer alleging that defendant and plaintiff were fellow employees of Elk Creek Logging Company, that defendant was not an employer of anyone engaged in the operation in question, and that defendant had no control and was in no way connected with that operation. The trial court found that defendant failed to prove immunity from the action. The trial court's finding was not thereafter challenged, either prior to or upon appeal in the first cause.

In the second trial, after the jury had been sworn, defendant moved for 'the opportunity to produce further evidence on our supplemental answer.' The court denied the motion on the ground that the question had been decided in the first trial and no appeal had been taken from the court's action in that respect, and on the further ground that the motion was not timely made.

We need no pass upon the first of these grounds because it was within the trial court's discretion to deny the motion on the ground that it was not timely made. The manner of conducting the trial of a cause must be left to the discretion of the trial judge, assuming of course that this discretion is not arbitrarily exercised. The defendant's effort to raise for the second time the immunity defense afforded under ORS 656.154(1) was not made until after the jury was sworn. We believe that it was reasonable for the trial court to consider the motion as having been made too late. The situation is not unlike that where a party moves to amend his pleading, in which case it is well established that the action of the trial court in denying a motion to amend will not be disturbed on appeal unless the court's action is arbitrary. ⁴

Finally, defendant urges reversal on the ground that the trial court erroneously refused to grant defendant's motion for a new trial predicated upon improper comments made by plaintiff's counsel in his argument to the jury. This, again, is a matter which must be left to the reasonable discretion of the trial court. We are of the opinion that the trial judge did not abuse his...