Thomas v. Foglio

• Citation: 358 P.2d 1066,225 Or. 540
• Parties: Louis C. THOMAS, Appellant, v. Alfred FOGLIO, Respondent.
• Decision Date: 25 January 1961
• Court: Supreme Court of Oregon

Page 1066

358 P.2d 1066

225 Or. 540

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

Supreme Court of Oregon.

Argued and Submitted Oct. 5, 1960.

Reargued and Submitted Jan. 11, 1961.

Decided Jan. 25, 1961.

Gordon G. Carlson, Roseburg, argued the cause for appellant. With him on the briefs were Yates, Murphy & Carlson, Roseburg, and Clifford S. Beckett, Oregon City.

James O. Goodwin, Oregon City, argued the cause for respondent. On the brief were Jack, Goodwin and Santos, Oregon City, and Philip A. Levin, Portland.

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

O'CONNELL, Justice.

Plaintiff brought this action to recover damages resulting from the alleged violation of the Employers' Liability Law, ORS 654.305. The jury returned a verdict in favor of plaintiff, but a judgment notwithstanding the verdict was entered. Plaintiff appeals.

Plaintiff, an employee of the Elk Creek Logging Company, was injured while loading logs on defendant's log truck. Elk Creek Logging Company was covered under the Workmen's Compensation Act; defendant was not. Plaintiff recovered compensation from the State Industrial Accident Commission and then brought this third party action as provided by ORS 656.154.

At the time of the accident plaintiff was employed by Elk Creek Logging Company as a loader. His job consisted of removing the tongs from the logs after they had been loaded onto the truck. This required him to be on the top of the load. When plaintiff was removing the tongs from a log which had just been hoisted to the truck, the log started to roll. Plaintiff, to avoid being struck, jumped onto the top of a water tank located immediately behind the truck cab. His calked boots slid on the metal surface of the tank and he fell to the ground injuring his knee.

Plaintiff's complaint contained allegations sufficient to charge defendant with a violation of the Employers' Liability Law, specifically defendant's failure to provide a safe platform on the top of the water tank as a refuge from danger for plaintiff during the loading operation. Defendant's answer raised the issues of his negligence, his status as an employer, and the defenses of assumption of risk and contributory negligence. The defendant moved for a directed verdict on the following grounds: (1) that defendant was not an employer within the meaning of the Employers' Liability Law; (2) that defendant did not have control over the instrument involved as contemplated under the Employers' Liability Law, and (3) that there was insufficient evidence of negligence as charged to warrant submitting the matter to the jury. The motion was denied and the case was submitted to the jury. A verdict was returned for plaintiff in the amount of $18,452.75, for which judgment was entered. Defendant then moved for a judgment notwithstanding the verdict, which motion was granted. This appeal is taken from the latter judgment.

Plaintiff first attacks the judgment n. o. v. for the reason that although the motion for the judgment n. o. v. was made on the general ground that the court should have granted defendant's motion for a directed verdict, still, plaintiff contends that the motion for judgment n. o. v. was granted on specific grounds not set forth in the motion for the directed verdict, relying upon Ingalls v. Isensee, 1943, 170 Or. 393, 133 P.2d 614; Allister v. Knaupp, 1942, 168 Or. 630, 126 P.2d 317 and ORS 18.140. It is our opinion that the grounds which were stated in the defendant's motion for a directed verdict are essentially the same grounds as those recited in the motion for a judgment n. o. v. Therefore, this assignment of error is without merit.

The principal question on this appeal is whether the trial court was correct in deciding as a matter of law that defendant was not an employer under ORS 654.305, commonly referred to as the 'and generally' clause of the Employers' Liability Law. ORS 654.305 provides in part that 'Generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employes or the public, shall use every device, care and precaution which it is practicable to use * * *.'

The trial court held that, 'There being no evidence that the defendant either had charge of or was responsible for the work of loading or hauling the logs, there is no basis under the Act for holding him responsible.'

It is now well established that to entitle a person to recover under this section he must prove that he is an employee. Byers v. Hardy, 1959, 216 Or. 42, 337 P.2d 806; Drefs v. Holman Transfer Co. et al., 1929, 130 Or. 452, 280 P. 505; Saylor v. Enterprise Electric Co., 1923, 106 Or. 421, 212 P. 477; Hornschuch v. Southern Pac. Co. et al., 1921, 101 Or. 280, 203 P. 886; Turnidge v. Thompson, 1918, 89 Or. 637, 175 P. 281. It is equally well established that he need not be an employee of the defendant who is charged with a violation of the Act. Myers v. Staub, 1954, 201 Or. 663, 272 P.2d 203; Byers v. Hardy, supra; McKay v. Pacific Building Materials Co., 1937, 156 Or. 578, 68 P.2d 127; Coomer v. Supple Investment Co., 1929, 128 Or. 224, 274 [225 Or. 545] P. 302; Rorvik v. North Pac. Lumber Co., 1920, 99 Or. 58, 190 P. 331, 195 P. 163. Although the section does not expressly so provide, the defendant must be an employer in some sense before the statutory duty will arise. Snodgrass v. Risley, 1952, 196 Or. 506, 250 P.2d 392; Gray v. Hammond Lumber Co. et al., 1925, 113 Or. 570, 232 P. 637, 233 P. 561, 234 P. 261.

At the juncture where we held that a plaintiff could recover under the Employers' Liability Law against one who did not directly employ him, the word 'employer' took on a special and broader meaning embracing situations in which the defendant would not be considered an employer of the plaintiff workman as that term is ordinarily understood. The treatment of the defendant as the employer of one whom he has not directly employed to do the work out of which the injury arises can be justified on the ground that the plaintiff becomes the defendant's employee in the sense that the plaintiff is performing work on a project of which defendant's operations are an integral part. The plaintiff becomes, in effect, an adopted employee to carry out the work project in which plaintiff's actual employer and his adoptive employer are participating. To draw the defendant into the employer-employee relationship in this sense, it must be shown that the defendant was one 'having charge of, or responsible for any work.' ORS 654.305.

It would seem clear that one who merely sells equipment which is intended for use and is used by workmen and who, after the sale, is not involved in the use to which the equipment is put, is not an employer under the Act. In Clayton v. Enterprise Electric Co., 1916, 82 Or. 149, 161 P. 411, the Act was extended to include a supplier of electricity where an injury was incurred by an employee of defendant's customer who came in contact with a defective switch owned by the customer but which was subject to some 'control' by the defendant. We need not now decide whether the court was correct in treating the defendant within the meaning of the Act as a person 'having charge of, or responsible for' the work performed by the plaintiff employee. At this point we simply with to note that one who merely supplies equipment which is to be used in the course of plaintiff's employment is not an employer under the Employers' Liability Law. This is also true where the equipment is leased rather than sold. The Act cannot apply unless in some sense the defendant has 'charge of' or is 'responsible for' the work out of which the injury arose. The defendant must participate in the enterprise in some way. The difficult problem is to determine what is meant by 'participation.' A similar problem is presented in the application of ORS 656.154. Under that section, an employee of an employer who is covered by the Workmen's Compensation Act (ORS ch. 656) may recover against a third person unless that third person is subject to the Act and 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 * * *.'

Both ORS 656.154 and ORS 654.305 are cast in terms of the defendant's control over the work out of which the injury arises. We do not pass upon the question of whether the control required under each of these statutes is the same, but both statutes have been liberally construed to cover situations in which the defendant did not have actual control over the specific activity which was the immediate cause of the plaintiff's injury. Defendant's participation has been considered sufficient where it amounted to cooperative conduct in accomplishing a task in which both the defendant and plaintiff's employer were interested. Pruett v. Lininger, Or.1960, 356 P.2d 547 (considering the interworkings of ORS 654.305 and ORS 656.154); Fisher v. Rudie Wilhelm Whse. Co., Or.1960, 355 P.2d 242 (ORS 656.154); McKay v. Pacific Bldg. Materials Co., supra (ORS 654.305). Our prior decisions indicate that in construing ORS 656.154 this participation must be more than a common interest in an economic benefit which might accrue from the accomplishment of the task, Pruett v. Lininger, supra; Fisher v. Rudie Wilhelm Whse. Co., supra; Johnson v. Timber Structures, Inc., 1955, 203 Or. 670, 281 P.2d 723; the defendant or his employee and plaintiff's employer must actively join in a physical way in carrying on the particular work which produces the injury. Johnson v. Timber Structures, Inc., supra. As expressed in Pruett v. Lininger, supra, there must be an 'operational co-mingling' of the employees of the two employers. Similarly, in the application of ORS 654.305, it has been held that defendant cannot be held subject to the Employers' Liability Law...