Gray v. Hammond Lumber Co.

BROWN, J. Plaintiff, by her amended complaint, alleges, among other things, that the defendant Hammond Lumber Company is a corporation, and that defendant Lukins is its foreman and in charge of the work in which Harold Cray and the defendant corporation were engaged at the time of the accident; that on the day of the accident the corporation was operating a sawmill at Mill City, Linn County, Oregon, in the manufacture of lumber from saw logs supplied by the corporation from its logging camp in that county, and that Cray was employed by the corporation in that logging camp; that while thus employed he was under the immediate supervision, control, and direction of Lukins, as superintendent in charge of the work of the camp; that on the above-mentioned day, while the corporation was engaged in moving a donkey-engine up a steep mountainside by its own power, using for that purpose a wire rope or choker with which to anchor a block or pulley to a stump, and while Harold Cray was in the performance of his duties, through the negligence of the defendants herein the wire rope *575 broke, permitting tbe engine “to crash or fall or tumble down the slope or side of said mountain,” crushing and killing Harold Gray. Plaintiff alleged that at the time of the accident, the corporation, its foreman, and its employees, including Gray, were engaged in a hazardous occupation within the purview of the Workmen’s Compensation Law of Oregon, to wit, Or. L., §§ 6605-6659, and that prior to that time the corporation had, by its affirmative action, rejected the provisions, protections and benefits of the act; further, that at the time of 'his death, Gray was seventeen years of age, in good health, and in the enjoyment of all his physical and mental faculties; that he was capable of, and was, earning $4.40 per day, and had an expectancy of fifty years. Plaintiff demanded judgment in the sum of $40,000. The defendants filed separate motions, each requesting an order of the court striking out the amended complaint for the reason that it contained two causes of action not pleaded separately. Thereafter defendants filed separate demurrers upon the ground— “That the plaintiff has no legal capacity to sue. “That several causes of action have been improperly united. “That the amended complaint does not state facts sufficient to constitute a cause of action against the defendant. ’ ’ The motions were overruled, as were the demurrers. Defendants, answering, denied that Gray was killed through the negligence of defendants, or either of them, and filed further and separate answers and defenses, in which, among other things, they averred that Gray was negligent in failing to occupy a safe *576 position while the donkey-engine and sled were being moved, and that the “accident and injuries to said Gray were wholly unavoidable, accidental and unforeseen, and could not have been prevented by the exercise of that degree of care required by law.” Plaintiff replied, and, on the trial of the case, was awarded a judgment against the defendants for the sum of $6,500, together with her costs and disbursements. Defendants complain that the complaint alleges two causes of action not separately stated, and that several causes of action have been improperly united therein. Plaintiff’s complaint contains the usual and necessary allegations to bring the case within the embrace of the Employers’ Liability Act (Or. L., §§ 6785-6791), and this action is maintained under the provisions thereof. When statutes are enacted which undertake to declare rights and establish a standard of conduct for their protection, any acts or omissions in violation of such statute, which destroy the enjoyment of such rights, may be treated as legal wrongs or torts: 38 Oyc. 415. According to the complaint, the defendant corporation, while acting through its superintendent, violated a statutory duty owing to its employee, Harold Gray. Under its averments, they are jointly charged with the omission of a duty to the boy, imposed by law. The theory of the plaintiff is that the Employers’ Liability Law confers a right of action against the superintendent, as well as against the employer. If this were so, this action could rightfully have been maintained .against either, or both, of the alleged joint tort-feasors, and the joinder of *577 the superintendent with the corporation in a single cause of action would have been proper: Harvey v. Corbett, 77 Or. 51, 61, 62 (150 Pac. 263); Cauldwell v. Bingham, & Shelley Co., 84 Or. 257 (155 Pac. 190, 163 Pac. 827); 38 Cyc. 490; 1 Kerr’s Pleading and Practice in the Western States, 674; Fallon v. United, Railroads, 28 Cal. App. 60 (151 Pac. 290); Whalen v. Pennsylvania R. Co., 73 N. J. L. 192 (63 Atl. 993); 1 Kerr’s Pleading and Practice in the Western States, 701, and authorities cited in notes. The defendants’ motions were properly overruled, for— “The question of joinder of causes can only arise where two or more good causes of action aré pleaded.” 1 O. J. 1062. The plaintiff avers one “good cause” of action. She does not attempt to assert a cause of action in a representative capacity. Further on in this opinion we shall refer to the complaint with reference to the action against the superintendent. The complaint is also challenged on the ground that the plaintiff has no capacity to sue. Under our Code, a demurrer for want of capacity to sue must be directed to some disability of plaintiff appearing upon the face of the complaint: Or. L., § 68; Pomeroy Code Remedies, § 208; Bliss Code Pleading, §407; Miller v. Luco, 80 Cal. 257 (22 Pac. 195); Swamp & Overflowed Land Dist. No. 110 v. Feck, 60 Cal. 405; Campbell v. Campbell, 121 Ind. 178 (23 N. E. 81). The want of capacity to sue does not affirmatively appear in this complaint, and it is not enough that the complaint fails to aver facts showing capacity: 31 Cyc. 296, 297. *578 “So a demurrer on the gronnd that plaintiff has no legal capacity to sue cannot be sustained unless it affirmatively appears on the face of the complaint that he has not such capacity.” 31 Cyc. 324, 325. The demurrer likewise challenges the sufficiency of the complaint for the reason that it fails to state facts sufficient to constitute a cause of 'action. The statute gives the right of action and provides the remedy, and this action can be maintained under that statute, subject to the conditions and limitations imposed thereby. “And where the statute, in designating the beneficiaries, indicates a preference according to the degree of relationship to the deceased, the action must be brought by or in behalf of the beneficiaries in the order preferred, and where there exists a preferred beneficiary no other beneficiary not thus preferred is entitled to maintain the action.” L. R. A. 1916E, 160. And again: “If the act gives a right of action first to a designated class of beneficiaries, and if there be none of that class then to another class, in an action on behalf of beneficiaries of the latter class the nonexistence of beneficiaries of the first class must be averred.” Death by Wrongful Act, Tiffany (2 ed.), § 182. In this court the defendants for the first time attack the complaint upon the specific ground that it fails to aver that the plaintiff is the particular survivor, to whom the right of action is given by Section 6788, Oregon Laws. The objection that a complaint fails to state facts sufficient to constitute a cause of suit is never waived: Duby et al. v. Hicks, 105 Or, 27 (209 Pac. 156), and local citations there collected. *579 True, the complaint fails to negative the fact that the deceased seventeen year old boy left surviving him widow, children, or other lineal heirs. The action, as we have seen, was prosecuted by the mother in accordance with a right and remedy provided by statute. She alleged that her son was seventeen years old at the time of the accident, and, upon proof of this allegation, the court drew the inference, and found as a fact, that the lad was unmarried. Reasonable inferences drawn from affirmative facts proved are evidence, and not presumptions built upon other presumptions: Hardwick v. Wabash R. Co., 181 Mo. App. 156 (168 S. W. 328). The defendants filed a general demurrer to the sufficiency of the complaint, but failed to suggest, by argument or otherwise, their contention that the mother is not shown by that pleading to be the proper party plaintiff. Therefore, from the doctrine heretofore announced by this court, the case on appeal is to be determined upon the sufficiency of the complaint after verdict: Minter v. Minter, 80 Or. 369 (157 Pac. 157); Bottig v. Polsky, 101 Or. 530 (201 Pac. 188). The case of Texas & P. Ry. Co. v. Lacey, 185 Fed. 225, as amended by Act No. 71 of 1884, 107 C. C. A. 331, is much in point. The Civil Code of Louisiana, Art. 2315, authorizes an action, for wrongful acts causing death and confers the right of action on the “minor children or widow of the deceased, or either of them, and, in default of these, in favor of the surviving father and mother, or either of them.” The father instituted an action, and averred that the son, when killed, was only eighteen years old, but failed to allege that he was unmarried, or, that he left surviving him minor children, a minor child, or widow. Neither was there any evidence adduced upon that *580 question. The case was submitted to the jury on the issues made by a general denial of plaintiff’s petition, together with the defense of contributory negligence. It was contended on appeal that the pleadings failed to show that the plaintiff had any right of action under the statute referred to. The court said: “If the decedent had been married or had left surviving him a minor child, the fact could have been made to appear at any time from the filing of the answer to the motion for a new trial. The point, if it occurred to counsel—and it probably did not—was held in ambush till the case reached this court, when it came out in the open. * * But it is urged, also, that there, was no proof that decedent was unmarried. From what we have already said, we might conclude that the conditions of the pleading did not call on the plaintiff for such proof. The petition averred, and the proof showed, that the decedent was only eighteen years old. It is a matter of common knowledge that men do not often marry in this country before reaching eighteen years of age. It would seem reasonable to indulge the presumption, till the contrary was proved, that a lad of eighteen years was unmarried. Boys do not begin life married, and it is a rule that, where the existence at one time of a certain condition or state of things of a continuing nature is shown, the general presumption arises that such condition or state continues till the contrary is shown by either circumstantial or direct evidence. It would be presumed that a boy continued unmarried until eighteen years of age. This view has prevailed against a defendant in a criminal case.” The court then cites, and quotes from, Gaunt v. State, 50 N. J. L. 490, 491 (14 Atl. 600). Another valuable case supporting the sufficiency of the pleading is McIntosh v. Missouri Pacific Ry. Co., *581 103 Mo. 131, 133 (15 S. W. 80). See, also, 10 R. C. L. 884; 22 Am. & Eng. Ency. of Law (2 ed.), 1285; 22 C. J. 88. The trial court’s finding that Harold Gray was of a given age and unmarried at the time of his death has the force of a verdict. Findings made by a court upon the facts in an action tried before it without the intervention of a jury are deemed a verdict : Or. L., § 159. The rule in this state is that, while a verdict will not supply the omission to state some facts essential to the cause of action, it will cure all formal defects in a pleading and establish every reasonable inference that can be drawn from the facts stated. See the many local decisions cited in Duby et al. v. Hicks, supra. The doctrine of intendment, as here discussed, “results from the just view that a party should not be permitted to lie by and take his chances for a verdict, and then if it is rendered against him, raise some technical objection, remediable or amendable if made at a proper stage of the proceedings.” 22 Ency. Plead. & Prac., pp. 949, 950. Verdicts should have a reasonable intendment and a reasonable construction, and should be construed and applied in the light of all the proceedings: 22 Ency. Plead. & Prac., pp. 951—957. In the instant case, the pleading is susceptible of the construction which will support it. Therefore, every fair and reasonable intendment must be indulged to that end: 6 Ency. Plead. & Prac., p. 389. “Even on demurrer, pleadings are to be liberally construed. The complaint on demurrer must be deemed to allege that which can be implied from the allegations therein by a reasonable and fair intendment.” 4 Ency. Plead. & Prac., p. 755. *582 The complaint in the cause at issue avers that Harold Gray, the injured boy, was of the age .of seventeen years. That the youth was unmarried is only a reasonable and fair inference to be drawn from that allegation and the evidence in support thereof. Does the Employers’ Liability Law (Or. L., §§ 6785-6791) give a cause of civil action against employers alone as its name indicates, or does it also include within its embrace a civil action against the employee? ! Our decisions may not be in exact accord upon this subject. For an elaborate discussion of the title and history of the act, see Turnidge v. Thompson, 89 Or. 637, 652 (175 Pac. 281), Camenzind v. Freeland Furniture Co., 89 Or. 158, 170 (174 Pac. 139), and Saylor v. Enterprise Electric Co., 106 Or. 421 (212 Pac. 477), and the authorities therein cited. We have seen that the cause of action against the employee Lukins is based upon a statutory enactment. That the statute denounces as a crime certain acts of commission and omission is clear from the language of the act. But we are treating of civil actions within the embrace of the statute. In all those cases in which a statute gives a cause of action and designates the person or persons who may sue or be sued, such person or persons alone may maintain an action thereunder or may properly be made defendants, as the case may be: Romero v. Atchison T. & S. F. R. Co., 11 N. M. 679 (72 Pac. 37). In Lawton v. Morgan, Fliedner & Boyce, 66 Or. 292, 297, 300 (131 Pac. 314, 134 Pac. 1037), this court, in discussing the provisions of the Employers’ Liability Law, said, through Mr. Justice Moore: *583 “It is evident that an employer, whether owner, contractor, or subcontractor, who is engaged in the construction of a building is the only party defendant in an action to recover damages for a personal injury suffered by an employee while engaged in the same branch of the service. This determination is obvious from the language of Section 5 of the act, to wit: ‘In all actions brought to recover from an employer for injuries suffered by an employee, ’ etc. ’ ’ The court there held, also, that the act created a several, and not a joint, liability resulting from an injury to an employee. On petition for rehearing, the court, speaking through Mr. Chief Justice McBride, said: “The act is substantially quoted in the original opinion, and these excerpts indicate its intention was to create a liability as between employer and employee.” In the case of Tamm v. Sauset, 67 Or. 292, 297 (135 Pac. 868, L. R. A. 1917D, 988), Mr. Justice McNary, speaking for this court, said: “The evident intent of the statute was to hold responsible, for personal injuries to an employee, only that member of the class enumerated who was engaged in the undertaking or enterprise embraced in the statute whereby the injury occurred. To conceive otherwise would be going wide of the rule established by this court in the case of Lawton v. Morgan, Fliedner & Boyce, 66 Or. 292 (131 Pac. 314, 134 Pac. 1037).” In Hoag v. Washington-Oregon Corporation, 75 Or. 588, 594, 596, 602 (144 Pac. 574, 147 Pac. 756), this court, speaking through Mr. Justice Eakin, said: “Section 2 of the act provides that the manager, superintendent, foreman, etc., in charge or control of *584 the work shall he held to he the agent of the employer, and the act does not create a liability upon the superintendent or manager. This is decided in Lawton v. Morgan, Fliedner & Boyce, 66 Or. 292 (131 Pac. 314, 134 Pac. 1037). * * “The statute provides that an employer having charge (having charge of) any work involving risk or danger to employees shall use every precaution practicable for the safety of life and limb, and the manager and superintendent in charge or control of the work shall be held to be the agent of the employer. That is a brie! statement of the liability, leaving out all verbiage not applicable to this case.” The case was reversed on account of the failure of the court properly to instruct the jury. On rehearing the pronouncement of the law in the original opinion was not recalled or set aside. The case was modified and affirmed, and judgment entered under the provisions of Section 3-c, Article 7, Oregon Constitution. The pleadings stated a common-law liability. In the majority opinion on rehearing, Mr. Justice McBride, in speaking for the court, wrote: “The case presented by the pleadings involved a double aspect charging matters upon which a recovery might have been had either at common law or under the Employers’ Liability Act, and the defendant, without demurring, moving to make more definite and certain, or to elect, promptly answered, denying all allegations of negligence and pleading assumption of risk and contributory negligence.” In Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 317, 350 (173 Pac. 267, 175 Pac. 659, 176 Pac. 589), Camp, the superintendent, was joined with the corporation as party defendant in an action for damages. In that case this court, speaking through Mr. Justice McCamant, after citing Lawton v. Morgan, *585 Fliedner & Boyce, supra, and Tamm v. Sauset, supra, said, in reference to the persons named in the act as liable: “We think the defendant Camp is not one of the persons so named, and that he cannot be held liable under this statute.” The case was reversed, and, on rehearing, was reversed as to the employee and affirmed as to the employer. The opinion on rehearing, by Mr. Justice Harris, in which all members of the court concurred in so far as it related to the liability of a superintendent under the provisions of the Employers’ Liability Law, holds that the act extends its criminal liability, but that it neither enlarges nor lesséns the civil liability of the superintendent. Among other things, the Justice wrote: “The verdict and judgment were against Camp, the superintendent, as well as against the Marshall-Wells Hardware Company, the employer. Camp admitted that he was a superintendent, and moreover there was ample evidence from which the jury could find that Camp had charge of all the work done in the barn; that he caused the hatch to be enlarged and the block and tackle to be installed. * * The plaintiff contends that since Camp was the superintendent in charge of the work at the barn, the Employers’ Liability Act applies to Camp with the same force and to the same extent as it does to the Marshall-Wells Hardware Company. * * “It is manifest * * that the excerpt quoted from Section 3 neither enlarges nor lessens ‘the civil liability of such persons,’ but this language is evidently inserted in the section merely for the purpose of removing even the 'possibility of claiming that punishment by fine or imprisonment shall relieve the person fined or imprisoned from liability for damages. The *586 language quoted from Section 3 simply leaves the subject of civil liability at large; and, moreover, tbe words, ‘as the case may be,’ are themselves significant when considered in connection with tbe different classes of persons named in tbe action. “A careful examination of tbe Employers’ Liability Act, together with its title, makes it obvious that tbe act does not completely embrace an action for damages against a foreman or superintendent like Camp; and consequently it becomes necessary to reverse the judgment as against Camp.” This doctrine was referred to with approval in Saylor v. Enterprise Electric Co., supra. We have carefully read tbe cases of Harvey v. Corbett, supra, and Cauldwell v. Bingham & Shelley Co., supra, and we have again read, and re-read, the statute. From tbe consideration of tbe statute and all of tbe cases noted, we are impelled to follow tbe latest expression of tbe court, as announced in Malloy v. Marshall-Wells Hardware Co., supra, an opinion that sets forth the unanimous bolding of this court. Of course we do not decide that a superintendent employee cannot be held liable in an action for damages, but we do bold that be is not liable in a civil action prosecuted under tbe provisions of tbe Employers’ Liability Law with its limitation of defenses. We have considered all questions presented by tbe record. This case should be affirmed as against tbe Hammond Lumber Company and reversed as to the employee, -Lúkins. It is so ordered. Modified. McBride, C. J., and Bean and Coshow, JJ., concur. *587 For the petition, Messrs. Goss & Murphy and Mr. Arthur K. McMahan. Contra, Messrs. Kaste & Rand. Rehearing denied February 24, 1925.