Union Oil Co. of California v. Hunt

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: GARRECHT, STEPHENS, and HEALY, Circuit
• Citation: Union Oil Co. of California v. Hunt, 111 F.2d 269 (9th Cir. 1940)
• Decision Date: 24 April 1940
• Docket Number: No. 9277.,9277.
• Parties: UNION OIL CO. OF CALIFORNIA v. HUNT.

111 F.2d 269 (1940)

UNION OIL CO. OF CALIFORNIA v. HUNT.

No. 9277.

Circuit Court of Appeals, Ninth Circuit.

April 24, 1940.

COPYRIGHT MATERIAL OMITTED

James Arthur Powers, of Portland, Or., for appellant.

George L. Rauch, of Portland, Or., for appellee.

Before GARRECHT, STEPHENS, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

James Ralph Hunt, appellee here, plaintiff below, was an employee of Union Service Stations, Inc., a corporation, in a service and gasoline filling station operated by said corporation on the 12th day of June, 1934. In his complaint he avers that on or about that date, in the course of his duties at the said service station, while he was attempting to demount an automobile tire from a wheel or rim, he strained or injured his lower back muscles or bones, or both, allegedly because of defective tools and tire irons furnished by said corporation. Hunt reported the matter to his employer, and he was directed to a doctor for medical treatment. The doctor strapped him with adhesive tape, and he returned to work for three days, but the pain continued and he was put in the care of another physician, who removed the tape, placed about him a corset-type brace and advised him to wear the same and not to do heavy work. Some days later a new brace was furnished, and Hunt was directed to wear it and was again advised to refrain from heavy work. This brace extended from the hips to the shoulders, and the appellee wore it continuously, removing it only upon retiring; he was not comfortable without it.

On or about July 1, 1934, the appellant, Union Oil Company, absorbed its wholly-owned subsidiary, Union Service Stations, Inc., and took over all its assets and assumed its liabilities. Union Service Stations, Inc., elected not to be bound by the Workmen's Compensation Law for the State of Oregon on July 1, 1932, and said rejection continued in effect through the month of June, 1934, and was not cancelled. The Union Oil Company on July 1, 1934, rejected the Oregon Workmen's Compensation Law, effective as of said date down through the trial of the present case. Prior to and during June, 1934, Union Oil Company was under the Workmen's Compensation Law of Oregon. Union Service Stations, Inc., carried a policy of insurance for its protection and for the payment of compensation to its employees when required by reason of injuries. One policy in question expired July 1, 1934, the date of the absorption of Union Service Stations by Union Oil of California. The Union Oil Company also carried such a policy of insurance, which went into effect the day its subsidiary's policy expired, and, in turn, expired June 30, 1935. The appellee continued to work at the same location, but his connection with the Union Service Stations, Inc., was severed as of June 30, 1934, and he entered the employ of Union Oil Company of California on July 1, 1934.

It appears from the evidence that Hunt was working alone at the service station on the afternoon of November 5, 1934, "a cold, rainy day," when he received a telephone call requesting that someone be sent to a specified location to change a tire on an automobile. Hunt, being alone, did not immediately respond to this call, but waited until another employee at said station came on duty at approximately 2:30 p. m. The automobile needing the tire change was a Plymouth Sedan located in front of an apartment house at First and Williams Streets or Multnomah and First Streets (there is an apparent contradiction in the record) in the city of Portland. This location was some distance from the station at which Hunt was employed, but only a few blocks from another Union Oil station. Shortly after the other employee at his station came on duty, Hunt left him in charge and drove in his own Ford car to the place where the tire was to be changed. There was a four-wheel "Weaver" type jack with a long handle at the station, by the use of which an automobile could be raised for a tire change, etc., without the necessity of the operator thereof getting under the car to manipulate it. The appellee did not take this jack with him because, as he testified, it was too heavy for him to manage and if it had been put in his car, he would be unable to take it out alone. The jack, or one just like it, was introduced as an exhibit and a picture thereof is reproduced in the record. There is evidence in the record that such a jack could be, and was, carried on the running board of a car, with the handle thrown over the fender. When Hunt arrived at the appointed location, he found the car at the curb with its right rear tire flat and the owner of the car in an intoxicated condition; he procured the keys to the car from the owner to unlock the spare tire, took his own jack out of his car, got on his knees and pushed it under the rear axle of the Plymouth. This jack was Ford equipment of the lever rachet type, operated by means of a lever repeatedly engaging a toothed upright member and raising it upward the distance between two teeth to where it is engaged by a pawl. The lever or handle of Hunt's jack was short and it was necessary for him to crawl beneath the overhang of the Plymouth, which projected toward the rear and beyond the back axle. Appellee testified that he would have been unable to use a longer handle or lever with that type of jack because the arc which would be described or measured by the end of the lever farthest from the fulcrum would increase in a certain regular proportion to the length of the lever, and therefore insufficient clearance would prevent the movement of the lever engaging the next tooth of the upright rack necessary to raise the same. A jack which operated on the screw principle whereby a bevel gear is turned by a long rod, upon the end of which is attached a crank handle, the power being transmitted to spirally-grooved, telescoping, upright members by the said bevel gear, would have obviated the necessity of the operator getting under the car. Hunt, while under the Plymouth, raised the right rear wheel thereof several inches (the record is not clear as to the exact height) by means of his jack; he then began to back out on his hands and knees. As he did so, the jack slipped from under the car, which dropped to the ground, coming to rest on the deflated tire and wheel, at the same time striking Hunt across the lower part of his back. He testified that the blow struck him below the brace he was wearing; that he lost consciousness and when he regained his senses, he was suffering a sharp pain in the region where he had been hit and that he could not use his legs; that he lay under the car for a time and then shoved himself out from under it. He then regained his feet, walked to his car, got into it, and drove to the Union Service Station at Union and Oregon Streets, told the attendant there what had happened. This man, Keith by name, returned to the Plymouth car with Hunt in the latter's car, changed the tire and then drove Hunt to the service station at which Hunt was employed. Mr. Timmer, the manager of the station was present when Hunt returned with Keith, and they advised him of what had happened; Keith got out of the car and Hunt drove home.

It appears from the appellee's testimony that the body of the Plymouth Sedan extended about a "yard" from the axle and that the trunk rack extended "practically a yard out beyond the end of the car," and there was a trunk on this rack. Another witness, Keith, estimated the overhang at four feet. Hunt also testified that his Ford jack was frail and that the part which came in contact with the axle when in use, was flat and smooth, whereas other jacks are equipped or made with prongs to keep the axle from sliding off. When asked why he did not use the jack with which the Plymouth was equipped, he said the jack was broken, that the owner told him "his jack that he had was not any good." It does not appear that he ever saw this jack or even looked for it. He said further that the company did not at that time provide a jack which could be taken out on a service call. There was no testimony given as to why the "Weaver" jack could not be used normally for this purpose, and its weight was undisclosed by the evidence.

When Hunt arrived home his wife called Dr. Dillehunt and told him of the accident or injury. He advised them to come to his office immediately, which they did; after examination the doctor directed him to go home and to bed for five days and then return to his office. On the appointed day, which was about November 10th, Hunt, accompanied by his wife, returned to the doctor's office, and was again examined by Dr. Dillehunt. The doctor advised that an operation was necessary and that it should be performed soon. After a few days Hunt began to be about again, and he was advised by Mr. Russell, a local company executive, that if he felt like working he could come to Russell's office and do odd, light jobs, such as run errands, get credit card applications and help about the office, but that if he didn't want to work he didn't have to. This continued until February 28, 1935, when Hunt was notified to present himself at the hospital on March 1st for a "lumbrosacral fusion" operation. The appellee arrived at the hospital on the night of February 28, 1935, and was operated upon the following morning. The period of convalescence is testified to by appellee as one of severe pain, mental anguish, and slim hope for the future, but eventually — in six or seven weeks — he walked again and returned to work about July 1, 1935. The operation was successful and Hunt was able to discard the brace, and did not again wear it. Thereafter he continued to be employed at the same service station; subsequently, Hunt and another leased this station from the Union Oil Company, and they continued operating it until about February 1, 1938, at which time the plaintiff entered the employ of the American Tobacco Company. He was still employed by...