Warner v. Synnes

• Decision Date: 25 November 1924
• Parties: WARNER v. SYNNES ET AL.
• Court: Oregon Supreme Court

230 P. 362

114 Or. 451

WARNER v. SYNNES ET AL.

Supreme Court of Oregon

November 25, 1924

Department 1.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by W. C. Warner against Severin Synnes and the West Oregon Lumber Company. Judgment for plaintiff, and defendant Lumber Company appeals. Reversed, with directions.

H. B. Beckett, of Portland (Wilbur, Beckett & Howell and E. K. Oppenheimer, all of Portland, on the brief), for appellant.

Bartlett Cole and George F. Alexander, both of Portland, for respondent.

BURNETT J.

In his complaint against the West Oregon Lumber Company, a corporation, and one Severin Synnes, the plaintiff alleges and it is admitted that the defendant Synnes was employed by the company as a contractor to furnish the necessary labor to do repairing, construction, and alteration work about the company's manufacturing plant, including the construction of a dock mentioned in the complaint. Averring that on January 24, 1922, he was employed by Synnes to work in repairing the docks of the company located on the Willamette river near Linnton, Or., the plaintiff says that he was working on a scaffold about 25 feet above the water; that it was resting on a piece of lumber, which was in turn held up and suspended by a rope attached to the piling, and that on that day, while engaged in that work, the rope parted and broke, as a result of which the plaintiff fell into the river and sustained certain injuries described. After describing his hurts and averring damages, the complaint alleges in substance that the rope which broke was furnished by the company; that it directed the plaintiff to do the dock work, and directed him and his fellow employees what work to do and how it should be done; that Synnes instructed the plaintiff and his fellow employees to do the repair work following the instructions of the company, using the material furnished by it; and that the company was engaged in and had charge of the construction and the repair of the dock, furnished all the material, appliances, equipment, and tools used therein and that the defendant Synnes instructed the plaintiff to use the material, appliances, equipment and tools furnished by the defendant lumber company, "and plaintiff was working on said dock and repairing the same as an employee and under a contract with defendant Severin Synnes at a daily wage, the said defendant Severin Synnes having employed him to do the repair work at said dock."

The concluding paragraph of the complaint is as follows:

"That defendants and each of them were negligent herein in not furnishing the plaintiff a safe place to work and in requiring and allowing the use of an improper and unsuitable rope in the construction of said scaffold, and in failing to use every device and precaution for the protection of plaintiff, and in failing to test the material furnished in building the scaffold."

After denying some material allegations of the complaint, the defendant company averred in substance that Synnes was an independent contractor in charge of the work, and that the defendant company had nothing to do with the means and methods employed in accomplishing the general result of the construction for which it had contracted. It also charged that the plaintiff was directly in charge of the work in which he was engaged, and that the accident which happened to him was the direct result of his own carelessness in the manner alleged in the complaint. The defendant Synnes filed an answer on his own behalf, which it is not material to consider because he has not appealed. The cause having been put at issue by a reply traversing the answer of the company, a trial was had resulting in a judgment for the plaintiff, from which the company has appealed.

The principal question for determination is whether the defendant Synnes was a contractor, so as to relieve the defendant company from the responsibility of providing the plaintiff a safe place to work. The complaint itself directly avers that Synnes was a contractor in the performance of the work in which the plaintiff was engaged when he was hurt. It is true that the complaint elsewhere says that the company was engaged in and had charge of the construction and repair of said dock. Construing the pleading of the plaintiff most...