Varrelman v. Flora Logging Co.

• Court: Oregon Supreme Court
• Writing for the Court: ROSSMAN, J.
• Citation: Varrelman v. Flora Logging Co., 133 Or. 541, 286 P. 541 (Or. 1930)
• Decision Date: 18 March 1930
• Parties: VARRELMAN v. FLORA LOGGING CO.

286 P. 541

133 Or. 541

VARRELMAN v. FLORA LOGGING CO.

Supreme Court of Oregon, En Banc.

March 18, 1930

Appeal from Circuit Court, Yamhill County; Arlie G. Walker, Judge.

On rehearing. Former opinion and judgment below reversed.

For former opinion, see 277 P. 97.

BROWN J., COSHOW, C.J., and BEAN, J., dissenting.

Omar C. Spencer and Frank S. Senn, both of Portland (Senn & Recken, of Portland, and James Burdett, of McMinnville, on the brief), for appellant.

Arthur I. Moulton, of Portland (Lord & Moulton, of Portland, on the brief), for respondent.

Miles H. McKey, Asst. Atty. Gen. (1. H. Van Winkle, Atty. Gen., on the brief), for State Industrial Accident Commission.

ROSSMAN J.

The material facts of this case are the same as those disposed of today in Lamm v. Silver Falls Timber Co., 286 P 527. The statement of facts set forth in 277 P. 97, is substantially sufficient to indicate the relationship between the plaintiff and the defendant; it seems desirable, however, to particularly notice the following. The plaintiff left defendant's camp Saturday, October 30, 1926, at 8 a. m. to go to Portland for the purpose of purchasing some shoes and clothing. Before beginning his trip, he did not terminate his employment; no such thought was present in his mind nor in the defendant's. Upon the other hand, he expected to resume work for the defendant Monday morning at 7:30 a. m., and the defendant entertained a like expectation; in fact, he was injured in the near vicinity of the camp while upon his return. Plaintiff's brief cessation of labor was satisfactory to his employer; here it seems pertinent to mention that as a courtesy to the latter, he performed an errand for it in Portland. The trip from camp to Carlton, which is the end of the logging railroad, is twenty-seven miles in length. The plaintiff testified that practically no one uses this railroad, except the defendant and its employees, and that it constitutes the only means of ingress to and egress from the scene of defendant's operations. The ownership of the railroad was thus: From Carlton to Tillamook Gate, it is owned by a corporation entitled Carlton & Coast Railroad Co.; from Tillamook Gate to the camp, it is owned by the defendant; both the latter and the Carlton & Coast Railroad Company are owned by the Carlton Consolidated Lmbr. Co. The plaintiff's injuries befell him upon the portion owned by defendant. Before undertaking his trip, he purchased a ticket at a cost of sixty cents, which was issued by the Carlton & Coast Railroad Company, and which provided that it entitled the purchaser to ride from Carlton to Tillamook Gate. After the conveyance, upon which the plaintiff was riding, had reached a point beyond Tillamook Gate, it failed to operate, and a conveyance known as a speeder, was sent by the defendant to convey the passengers to camp. Those aboard the disabled vehicle mounted the speeder, and the journey was resumed. No new fare was charged, and, as we have seen, the plaintiff's ticket entitled him to a ride from Carlton to Tillamook Gate only. All the controversies presented by the above facts, except that arising out of the charge for transportation, are controlled by the disposition made of the similar facts in Lamm v. Silver Falls Lumber Co. We believe that the charge for transportation does not demand a different result for the following reasons: (1) Plaintiff's injury was sustained at a place beyond the point for which a fare was charged; hence, we may assume that this portion of his transportation was given as an incident of his employment; (2) the plaintiff's trips back and forth were incidental to his employment, and made necessary by it; they were undertaken upon a conveyance furnished by the employer, and operated upon its premises. These circumstances are more favorable to the defendant than those present in American Coal Mining Co. v. Crenshaw, 77 Ind.App. 644, 133 N.E. 394, and Central Const. Co. v. Harrison, 137 Md. 256, 112 A. 627. In each of those cases it was held that since the journeys upon the conveyance were incidental to the employment, and were undertaken upon a vehicle provided by the employer, the payment of a fare was an immaterial fact. The same conclusion, we believe, is justified by the circumstances before us.

It follows that our previous decision was in error, that the judgment below should be reversed, and that the plaintiff's action should be dismissed.

BELT, McBRIDE, and RAND, JJ., concur.

BROWN J. (dissenting).

This cause was submitted on rehearing with the case of Lamm v. Silver Falls Timber Co. (Or.) 277 P. 91. For a statement of the facts and the law applicable thereto, see the original opinion, 277 P. 97. This was a companion case to the other, and in our disposition of the case, we called attention to our discussion of the law appearing in the Lamm Case which was decided at the same time.

The defendant, in the instant case, appealed from a judgment of $9,000 recovered by plaintiff in a common-law action based upon personal injuries alleged to have been sustained by him when riding as a passenger, upon defendant's speeder, by invitation of defendant. The point discussed on rehearing, and made by the petition therefor, relates to the question as to whether the plaintiff and defendant were subject to the Oregon Workmen's Compensation Act. Or. L. § 6605 et seq., as amended.

Did the court err in instructing the jury, over the defendant's objection and exception, that the defense made by defendant, to the effect that it was under the protection of the Workmen's Compensation Act, was removed from the cause? The defendant contends that the injuries sustained by plaintiff were compensable under the compensation act, and that for that reason he was entitled to receive pay for his injuries from the industrial accident fund of the state of Oregon, and not from the defendant. On the other hand, the plaintiff denies that he was under the protection of the act. The record plainly shows that the plaintiff's injuries were sustained during a brief vacation taken for the purpose of having a frolic of his own, and that during this time he was not engaged in forwarding the business of the defendant. He says that he was rendering no service for the company, and was not subject to its orders, direction, or control at the time he was thrown from the speeder. In this connection we call attention to the following excerpt from the case of Lavery v. Grand Trunk R. Co., 24 D. L. R. 522: "The principle underlying the Workmen's Compensation Act is, that the employer is practically the insurer of his employee against risks of accidents which may happen in the course of his work, and while he is under the control and orders of his employer, and while his time is being used for the benefit of his employer."

According to the undisputed testimony, when the plaintiff herein sustained his injury, forming the basis of this action, his time was his own. On Saturday morning, October 30, 1926, he left the logging camp of the defendant where he had been employed for four or five months, and went to Portland on personal business. He says that during these months he had made from six to ten similar journeys to Portland, on business of his own. He returned from this particular trip on Sunday evening, October 31st, and while being transported to camp by a speeder, operated by the defendant company, he was thrown to the ground, and the speeder passed over his body. During the time he was absent from the logging camp where he lived when employed, he was not engaged in the furtherance of any business of his employer. He received no wages on Saturday or Sunday, the days of his absence, and contributed nothing to the industrial accident fund for insurance.

The principle governing a situation such as the one before us is set down by Corpus Juris at page 85, Workmen's Compensation Acts, in this language: "Where, although the injury arises from a risk of the occupation, it is received while the employee has turned aside from the employment for his own purposes, he cannot be awarded compensation."

Our practice is in harmony with this rule.

From the facts related above, it is obvious that plaintiff had broken the continuity of his employment, and had gone to Portland on a venture of his own.

With further reference to a like situation, we quote the following pertinent excerpt: "Where the employee, for his own purposes, has left the place at which his work is performed and has broken the continuity of his employment, an accident which happens during such break in the employment cannot be held to happen in the course of the employment." Workmen's Compensation Acts, C.J., pp. 81, 82.

See, also, section 72, page 80, where the same authority says: "It has been said that in general terms an injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment, or engaged in doing something incidental to it."

In 28 R. C. L., § 92, Workmen's Compensation Acts, it is written: "To bring his case within the compensation act, the employee must show, as he was required to establish under the common law, that he was at the time of the injury engaged in the employer's business, or in furthering that business, and was not doing something for his own benefit or accommodation."

This expression, couched in language plain and clear, seems to the writer peculiarly persuasive.

In the companion case of Lamm v. Silver Falls Timber Co., supra, we attempted to define the phrase "arising out of and in the course of his employment," as used in the Workmen's Compensation Act. We there quoted and adopted the...