Wise v. State Industrial Accident Commission

• Decision Date: 31 July 1934
• Citation: 148 Or. 461,35 P.2d 242
• Parties: WISE v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

35 P.2d 242

148 Or. 461

WISE v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

July 31, 1934

Department 1.

Appeal from Circuit Court, Multnomah County; H. D. Norton, Judge.

Proceeding under Workmen's Compensation Law (sections 49-1801 to 49-1845, inclusive, Oregon Code 1930) by Elizabeth Wise widow of Samuel Wise, deceased, against the State Industrial Accident Commission. From a judgment of involuntary nonsuit claimant appeals.

Affirmed.

Walter T. McGuirk, of Portland (McGuirk & Schneider of Portland, on the brief), for appellant.

Miles H. McKey, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., and Victor R. Griggs, Asst. Atty. Gen., on the brief), for respondent.

KELLY, Justice.

One of the questions in this case is whether the report made to the State Industrial Accident Commission by an employer, that claimant's decedent met with an accident arising out of and in the course of his employment, constitutes prima facie evidence of such fact upon issue joined in the circuit court upon claimant's appeal from an order denying claimant's motion for rehearing by the commission.

Claimant's decedent died on March 3, 1932.

The report under consideration was made by Mr. William B. Wright. It bears date, March 4, 1932.

We quote from part I of the report: "Describe in full how accident happened. Was handling peanuts and wrenched his side. He did not report it at the time. In fact, Mr. Wise would not report any accident at any time, believing that he would be all right in the end."

We also quote from part II of said report:

"Is the information furnished by the workman on part I of this form correct? As far as I know.

"State any reason you may have why the validity of this claim should be questioned. None. Mr. Wise was always very conscientious and he gave me this information February 27 1932."

Mr. Wright was called as a witness in behalf of claimant. We quote from his testimony:

"Q. You were working, you say, in the evening there with him (Mr. Wise) on November 12th? A. I was.

"Q. And at that time was he handling sacks of peanuts there? A. We were.

"Q. You were handling sacks of peanuts. Were those sacks of peanuts heavy or not? A. They were stacked in piles of six.

"Q. Stacked in piles of six. A. We run a truck under them and broke them and pulled them over. We didn't handle the sacks at all.

"Q. Don't answer this question; I suppose it may be objected to. As you have read this over here, did he complain of having received a strain or any injury at that time or any time after *** A. He did not.

"Q. He did not? A. He did not.

"Q. Have you refreshed your memory? Do you remember what was said in here?

"Mr. Griggs: Now I understand the question was directed to this particular time, Mr. McGuirk.

"The witness: You mean the question here that the information furnished by the workman-

"Mr. McGuirk: Wait a minute. Don't read it. You are not supposed to read it.

"The witness: The first I knew of it was February 27th.

"Q. I refer you again, to refresh your mind, to this part there, Mr. Wright. A. That was told to me by another party."

We also quote the cross-examination of this witness.

"Q. I understand you were working with him on November 12th? A. Yes sir.

"Q. And you didn't hear about any accident at that time? A. I did not."

This testimony of claimant's witness impeaches the report, in that the report contains the statement that Mr. Wise gave witness the information on February 27th, while the testimony above quoted discloses that the information was given to witness by another party.

The testimony is also at variance with that part of the report which states that witness should have no reason for questioning the validity of this claim, because the testimony shows that on November 12, 1931, witness was present assisting Mr. Wise; that Mr. Wise made no complaint about having received a strain or injury, and witness did not hear about any accident at that time.

The only ground upon which the report in question could be deemed to be admissible is that it is a self-disserving statement of a party. That brings us to a consideration of the question whether an employer is a party to a proceeding such as the one at bar.

Section 49-1825, Oregon Code 1930 (present effective amendment 1933, Second Special Session, chapter 12, p. 33), among other things, provides that: "When, during the first fiscal year, any employer is a contributor to the industrial accident fund and the total amount paid out of the industrial accident fund or set apart therefrom as hereinafter provided on account of injuries sustained by his workmen shall be less than 50 per cent of the amount contributed to said fund by such employer during such period, not including, however, moneys retained from the workmen's wages, the rate of contribution of such employer during the following year shall be reduced by 20 per cent of the amount hereinbefore prescribed; where the total amount paid out or set aside is more than 50 per cent and not more than 60 per cent of the amount contributed, the rate shall be reduced by 15 per cent; where the total amount paid out or set aside is more than 60 per cent and not more than 70 per cent of the amount contributed, the rate shall be reduced by 10 per cent. Where an employer continues as a contributor to the industrial accident fund, the rate of contribution for each succeeding fiscal year shall be determined in like manner by combining the amounts paid out and set aside on account of injuries sustained by the workmen of such employer during the entire period such employer has been subject to the act, but not more than the preceding five years, and combining, also, the amounts contributed by such employer to the accident fund during each period; and provided further, that no employer shall be entitled to any such reduction if the commission shall find that during the preceding fiscal year he has wilfully failed to install or maintain any safety appliance, device or safeguard required by statute. If, during any fiscal year, the contribution of any employer is less than $20, the provisions of this paragraph shall not apply and rate of contribution for the ensuing year for such employer shall be base rate. For the purpose of determining the rate, as in this section provided, the amount paid out or set aside on account of an accident resulting in the fatal injury or permanent total disability of a workman shall be deemed to be the average amount paid out and set aside on account of all such injuries during the preceding fiscal year."

It is urged that, because of the provision of the statute just quoted, the employer has such financial interest in this proceeding that his admissions against interest are admissible in evidence.

We think that a contingent financial interest in the result of a given suit does not in itself alone constitute the one having it a party to the suit, nor render his admissions competent on the ground that they are against his interest. It may affect the credibility of his testimony, but it does not render his declarations binding upon either of the parties in interest. 2 Jones Commentaries on Evidence (2d Ed.) 1663, § 906.

The recovery of a judgment against a city or county might have the effect of materially increasing a large property owner's taxes in that city or county; but that fact would not render the taxpayer a party to the case wherein such judgment was being sought, and certainly an admission, whether written or oral, or by conduct of such taxpayer, would not be binding upon the city or county as evidence in support of plaintiff's claim therein.

It is also urged that the employer sustains a contractual relationship by virtue of the Workmen's Compensation Law which renders him a party giving to his declarations the effect of prima facie evidence against the commission.

It is stated in West et al. v. Kozer, 104 Or. 94, 206 P. 542, that in cases of this kind there is no doubt of the existence of a contract between the employer, the employee, and the state, that in case of an injury to the employee sustained while in the course of his employment, the compensation of such employee should be adjusted and paid from the fund provided in the Workmen's Compensation Law.

The contractual relationship existing in such a case as this is clearly stated. It does not render the contract of employment available as the basis of claimant's demand. The statute defines the relationship and substitutes a statutory proceeding for an action based upon negligence. The parties to this statutory proceeding are the commission and the employee. We think that the relationship between the employer, the employee, and the commission under the Workmen's Compensation Act of Oregon does not render admissible the declarations of the employer as self-disserving admissions in such a proceeding as this.

In the case at bar, the employer is not a party to the record, nor a party in interest, nor yet the agent of the commission.

It is true that the statute requires employers to make reports of injuries sustained by their employees; but it nowhere declares that such reports shall constitute evidence of any character.

We think that no error was committed by the trial court in rejecting said report.

This holding is made after a consideration of cases based upon workmen's compensation statutes of other jurisdictions wherein reports of employers have been considered as evidence, even, in a few instances, when not formally offered.

The sister jurisdictions, to which we allude, are Michigan, Maine, Indiana, Massachusetts, Wisconsin, Wyoming, Oklahoma, and Ireland. (With one accord the writer's colleagues insist that Ireland is a foreign jurisdiction.)

Among others, we...