Williams v. Clemen's Forest Products

• Decision Date: 21 March 1950
• Citation: 188 Or. 572,216 P.2d 241
• Parties: WILLIAMS et al. v. CLEMEN'S FOREST PRODUCTS, Inc.
• Court: Oregon Supreme Court

216 P.2d 241

188 Or. 572

WILLIAMS et al. v. CLEMEN'S FOREST PRODUCTS, Inc.

Supreme Court of Oregon.

March 21, 1950

Argued Jan. 26, 1950.

Karl T. Huston, of Corvallis, argued the cause for appellant. On the brief were Oehler & Huston, of Corvallis and Crum Dusenbery, Martin & Schwab, of Portland.

Orval N Thompson, of Albany, argued the cause for respondents. With him on the brief were Weatherford & Thompson, and Willis Kyle & Emmons, all of Albany.

Before LUSK, C. J and BRAND, BELT, ROSSMAN and HAY, JJ.

BRAND, Justice.

Calvin Clate Williams, an employee of the defendant Clemen's Forest Products, Inc., met his death while in the course of his employment in the sawmill operation of the defendant. His widow and three minor children brought this action for damages on the theory that the case was controlled by the provisions of the Employers' Liability Act, O.C.L.A. § 102-1601 et seq. The widow is the guardian ad litem of the minor children. Without going into details as to the allegations of the complaint at this time, it is therein stated that the defendant operated a sawmill which involved risk and danger to its employees and to the deceased in particular, and that it failed to use every device, care and precaution which it was practical to use for the safety of its employees. It is stated that as a part of the sawmill operation, it negligently operated a framework attached to the sawmill and extending away from it at a height of 35 feet, over which was run by power machinery a so-called elevator, consisting of belts, chain and cross pieces, which was kept in motion and was used for the purpose of moving mill ends, slab, and other refuse from the sawmill to a pile where the refuse was consumed by fire or otherwise disposed of. It is alleged that the elevator could practically have been equipped with sideboards to prevent pieces of timber from falling out, but that there was no such equipment and that pieces did fall out, and that one of them was negligently allowed to fall upon the head of the deceased, causing his death. The defendant denies negligence and liability.

After trial upon the merits, the jury returned a verdict for the defendant, and judgment was entered thereon. The plaintiffs then moved the court for an order granting a new trial, basing the motion, as they said:

'* * * upon the following ground, under Section 5-802, O.C.L.A.:

'1. Insufficiency of the evidence to justify the verdict.

'2. That the verdict is against law.

'3. That the verdict does not square with the evidence or with the law.

'This motion is further based upon all the evidence and the instructions given by the Court to the jury in this cause and upon the following and other decisions of the Supreme Court of the State of Oregon.'

The court, after hearing, found:

'1. That there is no evidence to justify the verdict;

'2. That the verdict is against the law;

'3. That the verdict does not square with the evidence or with the law;'

It therefore set aside the verdict and granted a new trial. The defendant appeals, assigning as error the order granting a new trial.

The order of events and the dates of their occurrence are as follows: June 10, 1948, verdict for the defendant; June 11, motion for new trial; on June 12, judgment for defendant on the verdict of the jury; on July 28 (more than 30 days after the filing of the judgment), order setting aside the verdict and granting a new trial. The statute provides that: 'If a new trial is granted by the court on its own motion, the order shall so state and shall be made within 30 days after the filing of the judgment. * * *' O.C.L.A. § 5-806.

It is therefore clear that in the case at bar, the authority of the trial court to grant a new trial more than 30 days after the filing of the judgment, was limited by the statute which provides that: 'In all cases of motion for a new trial, the grounds thereof shall be plainly specified, and no cause of new trial not so stated, shall be considered or regarded by the court. * * *' O.C.L.A. § 5-804.

It will be observed that the first ground specified in the motion for a new trial was 'Insufficiency of the evidence to justify the verdict', and that the first ground specified by the court for granting the motion was 'That there was no evidence to justify the verdict'. This portion of the motion is phrased in the language of O.C.L.A. § 5-802, which authorizes the granting of a new trial for '(6) Insufficiency of the evidence to justify the verdict or other decision, or that it is against law;' But the authority to grant a new trial under that section has been restricted by the provisions of art. VII, section 3 of the constitution, which forbid the trial court from reexamining a fact tried by a jury 'unless the court can affirmatively say there is no evidence to support the verdict.' We will assume that, by the language employed in the motion and order, it was intended merely to assert that there was no substantial evidence to support the verdict.

The brief which was filed in the circuit court presents the following proposition in support of the motion for a new trial: 'Where the evidence is not conflicting and shows negligence on the part of the defendant and the Court instructs the jury as under such conditions, the jury must find for the plaintiff. A verdict contrary to the evidence and to the instructions will be set aside. The ruling of the Court in so doing is not a violation of Section 3 of Article VII of the Constitution.'

In support of this proposition, three cases were cited. In Camirand v. De Lude, 124 Or. 189, 264 P. 355, the plaintiff brought suit for the alleged alienation of her husband's affections. Verdict was for the plaintiff and the defendant appealed. This court held that there was no evidence of any wrongful act by the defendant and that a motion for directed verdict should have been allowed. The judgment was reversed and the action dismissed. The case merely states the familiar rule. The only difficulty is in its application in specific cases. The second case cited in support of the motion was Tou Velle v. Farm Bureau Co-op. Exchange, 112 Or. 476, 229 P. 83, 1103. That was an action on contract for agreed purchase prices of goods sold. It was held that if the defendant was liable at all under the evidence, it was liable for $786.28, and the court had so instructed. The jury returned a compromise verdict for the plaintiff for one-half of the amount specified. It was held that the jury violated their legal duty and that a new trial should be granted. The third case cited was British Empire Ins. Co. v. Hasenmayer, 90 Or. 608, 178 P. 180. That was a contract case similar to the Tou Velle case, in each of which an impossible verdict had been returned.

Upon this appeal the plaintiff asserts the same proposition supported by the same authorities which were presented on the motion for new trial. The cases throw no light on the case at bar. The second and third grounds specified in motion for new trial add nothing to the first specified ground. It was argued before the trial judge that the court had instructed the jury 'that the defendant must use every care, precaution and device practical to use' and that the jury had violated the instruction. The instruction given was not as contended by the plaintiff. Under the instruction given the duty to use every care and precaution was made contingent upon a finding by the jury that the work involved risk or danger. The court, as the basis for its instructions quoted the 'and generally' clause of the Employers' Liability Act as follows: '* * * and generally, all owners, contractors or sub-contractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.' O.C.L.A. § 102-1601.

It then gave the following instructions, both of which were requested by the plaintiff:

'* * * The burden is upon the plaintiffs in this case to prove by a preponderance of the evidence that the work in which the defendants were engaged and in which decedent Williams was employed, involved a risk or danger to the employee. This case is brought under the statute. It is what is termed a statutory action and unless the plaintiffs have proved this element of the case by a preponderance of the evidence, they cannot recover in this case. If you find by a preponderance of the evidence that the plaintiffs have proved that the work in which the plaintiffs' decedent was engaged involved a risk or a danger to the said decedent Williams, then you will consider the other questions in the case.

* * *

* * *

'If you find from a preponderance of the evidence that the work being carried on by the defendant did involve a risk or danger to the said deceased Williams, and you further find that the defendant did not use every device, care, and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the apparatus being used and without regard to the additional cost of suitable material or safety appliances and devices in one or more of the particulars set forth in the complaint and as a result of such failure, if there was such failure, the decedent Williams was killed, then your verdict should be for the plaintiffs.'

The court also instructed as follows: 'I instruct you that you should determine from the evidence in this...