Weis v. Allen

• Decision Date: 31 July 1934
• Parties: WEIS v. ALLEN.
• Court: Oregon Supreme Court

35 P.2d 478

147 Or. 670

WEIS v. ALLEN.

Supreme Court of Oregon

July 31, 1934

Department 2.

Appeal from Circuit court, Multnomah County; Jacob Kanzler, Judge.

Action by Matt Weis against J. D. Allen. Judgment for plaintiff, and defendant appeals.

Affirmed.

Earl F. Bernard and John J. Coughlin, both of Portland (Collier, Collier & Bernard and John Coughlin, all of Portland, on the brief), for appellant.

Joseph H. Page and George A. Hall, both of Portland, for respondent.

BAILEY, Justice.

The plaintiff, Matt Weis, brings this action to recover damages from his employer, the defendant Allen, for injuries suffered by plaintiff when shot by a spring gun alleged to have been set by the defendant, on the latter's property where plaintiff was employed. From an judgment in favor of plaintiff for general and punitive damages, the defendant prosecutes this appeal.

At the time of the injury to plaintiff, both he and the defendant were subject to the provisions of the Workmen's Compensation Act of this state. The plaintiff applied to the State Industrial Accident Commission and was awarded compensation for his injuries in the full amount to which he was entitled under said act, $2,400.

Section 49-1828, Oregon Code 1930, provides in part as follows "If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the workman *** shall have the privilege to take under this act, and also have cause for, action against the employer, as if this act had not been passed, for damages over the amount payable hereunder."

The defendant challenged the sufficiency of the evidence to support a verdict in favor of plaintiff by interposing motions for involuntary nonsuit, for a directed verdict, and for a new trial, on the ground that there was no competent evidence to prove that the injuries sustained by plaintiff resulted "from the deliberate intention of his employer," defendant herein, "to produce such injury." The three principal assignments of error are based on the court's refusal to grant these motions.

In determining whether or not the trial court erred in denying the motions, it is the duty of this court in considering the motions to resolve in favor of the plaintiff every legitimate inference that can be drawn from the evidence, as such motions admit all that the evidence proves and all that it tends to prove.

The injuries of which plaintiff complains were caused by a mishap which occurred on October 5, 1932. At that time the defendant was the lessee and in possession of two large lots in the city of Portland, on which he was operating an automobile wrecking and junk yard.

Each of the lots contained approximately one quarter of a block. They were located in the same block, one at the corner of Stephens street and Grand avenue, termed yard A, and the other at the corner of Union avenue and Mill street, designated as yard B. The two yards met at the inner corners only, and were there connected by a gate. Each yard was surrounded by a fence six or seven feet high, in which there was a double gate opening on the street. On each lot there was a small shed which served as an office and a storeroom for the more valuable small parts and tools. Outwardly the wrecking lots appeared to be two separate establishments.

At all times to which we refer in this opinion the defendant Allen was the sole proprietor of the business carried on in yard B. He owned and operated the business in yard A jointly with one Thomas Comzny until November 19, 1931, when he purchased his partner's interest.

As early as 1930 the defendant directed his employee Peterson who was a charge of yard B, to make and set spring guns in that yard, in an attempt to prevent the burglarizing therein which was frequently being committed. The defendant also tried to persuade his partner to permit the setting of spring guns in yard A, but Comzny protested and would not sanction it, advising Allen that the setting of spring guns was unlawful.

Shortly after the defendant became the exclusive owner of both yards and some time during November, 1931, the plaintiff was employed by Allen and placed in charge of yard A. Soon thereafter Peterson, at the command of Allen, placed in the shed in yard A the spring gun by which plaintiff later was injured. Peterson and the plaintiff were the only employees of defendant, and Peterson remained in charge of yard B until Edwin Lyons replaced him, about a month before the occurrence on which this action is based, with the exception of a short time when Lyons worked with Peterson.

From the time that plaintiff's employment began until Peterson was discharged, the plaintiff in closing for the night would lock the door of the shed in yard A, turn his keys over to Peterson or hang them in the shed in yard B, and leave by way of the street gate in yard A, locking that behind him. In the morning, before going on the premises, he would wait outside until Peterson had released all the spring guns and unlocked the doors of the sheds in both yards. He would then receive his keys from Peterson, go around, and unlock the street gate of yard A, through which he would then enter.

As long as he remained in Allen's employ, Peterson, in the evening before leaving, would set the spring guns in both yards. At times there were, in addition to the guns in each shed, at least two other spring guns in yard B, one fastened underneath an automobile and the other concealed in a runway. The exact number of guns set at any time does not appear definitely in the record. At intervals, however, no guns at all would be set, especially on Saturday evenings preceding the Sundays when Weis was to be in charge of the yards.

When Peterson ceased to be employed by the defendant, and Lyons was placed in charge of yard B, the plaintiff continued his accustomed routine in closing up at night and waiting in the morning for Lyons to open the street gate of yard B. No spring guns were set in yard A after Peterson left, until about ten days or two weeks prior to October 5, 1932. At that time Allen came to Weis and told him that the lock on the outer gate of yard A had been broken and it would be necessary to set the spring gun again in the shed in that yard. Allen set the gun himself, demonstrated it to plaintiff, and gave him detailed instruction about it. Each evening thereafter at closing time Allen would appear at the office in yard A, obtain from plaintiff the receipts of the day and the keys to the office, and would then supervise the setting of the gun.

The spring gun was fastened underneath a shelf with a fine wire, close to the floor and practically invisible, leading from the trigger of the gun, across the opening of the door, and to a nail, where it was attached. This arrangement would cause the gun to be discharged when any one opened the door and entered. In setting the gun the door would first be locked, and by reaching through a hole in the wall the firing pin could be put in place and the spring set.

On the evening of October 4 the usual procedure was followed. When, however, plaintiff went to turn over his keys to Allen, he discovered that they had been left in his overalls in the office in yard A. At the request of Allen he obtained duplicate keys in yard B, unset the gun, opened the door, and got his keys from within the office in yard A, locked the door, and turned all the keys over to Allen. He then started to reset the gun in the shed in yard A and was told by Allen not to do so, that the gun would not be set that evening. Weis then quitted the premises, leaving Allen standing at the door of the shed in yard A. Later that evening both Allen and Lyons, who alone were on the premises, departed through the street gate in yard B, locking it behind them. No one except Allen and Lyons had keys to the premises, and after closing for the night neither of them returned until the next morning. Lyons was not in yard A after Weis left.

The next morning, October 5, the plaintiff waited until Lyons had opened the outer gate of yard B and given him his keys. He then went around to the outside gate of yard A, unlocked it, and unlocked the door of the office or shed in that yard. As he stepped into the shed to get his overalls the spring gun was discharged, severely injuring him by inflicting innumerable gunshot wounds in both his legs. A customer heard the shot and, upon ascertaining what had happened, notified Lyons in the next yard. When the latter appeared he was asked by Weis to call the police and summon an ambulance.

The police and Allen reached the yard at approximately the same time, about five minutes after the plaintiff was shot. Allen approached Weis and "in kind of a whisper" asked him to assume the blame for the discharge of the gun, assuring Weis that he would "make it all right" with him, if he would do so, and would keep up his wages during such time as plaintiff might be in the hospital, also pay all his hospital and doctors' bills. Plaintiff testified that the defendant also said to him: "The police may want to arrest you for this; there may be a small fine; I will pay the fine, don't worry about that. If they arrest you, I will go your bond."

Some time before this occurrence a watchman in yard B was shot through a leg of his trousers and his dog was injured. This was brought to the attention of defendant. The latter was also told by the police, about May, 1932, to discontinue the use of spring guns, which, according to his testimony, he did for the time being. In the beginning the spring guns were set so as to be discharged without probable injury to any trespasser, with the object of frightening away intruders rather than wounding them. Later the guns were so arranged as to...