Holland v. Hartwig

KELLY, J. About 10:20 a. m. on the 26th day of March, 1931, Melbourne C. Holland, who will be referred to herein as decedent, was killed at the Jackson street railway crossing in Albany. At the time of his death, he was in the employ of the Albany Door Company, a corporation, which will be referred to as the Door Company. Defendant had been so employed for eighteen months immediately prior to his death. His working hours were from eight a. m. until twelve noon and from one p. m. until five p. m. The Door Company maintained and operated two plants in Albany, one known as Plant No. 1 at 7th and Madison streets and the other known as Plant No. 2 at 11th and Hill streets. Mr. E. Y. Ferrin, who had accompanied decedent in his work for 60 or 70 days until the day before the fatal accident, testified in effect that decedent’s duties included the operation of a Ford truck in hauling freight, sawdust, chairs, furniture and fuel known as “hog feed”; also that decedent took his fuel orders from the fireman. This witness also testified that decedent knew that, if there was any freight, it would have to start at four o ’clock and so he would go in and ask the bookkeeper whether there was anything to *8 go out or not. This witness further testified that at times decedent would bring some furniture up to the Albany furniture dealers and occasionally would bring back something that had to be refitted; and that if the article to be transported was small, decedent used his own car, otherwise, he used the truck. As a witness for defendants, Mr. H. C. Morris, manager of the Door Company, testified that decedent was employed as a truck driver; that his business was principally hauling fuel and other material from plant to plant; and that, on the morning of his death, decedent had been hauling fuel and possibly some other material earlier in the day. Mr. Morris also testified that employees of the Door Company were not supposed to take repairs down town when anything was broken without getting an order from some department head; and that no one had authority to leave the plant except with the authority of some official. Mr. Morris also testified that decedent “was possibly — not in any particular department, he was working out of what we call plant Number Two that morning, he would have come under the supervision of that superintendent ’ ’. This witness also testified that William Harper, now deceased, was in charge of the filing room of the Door Company and had authority to have decedent go down town to get the machinery fixed which pertained to Harper’s department. Mr. Morris also testified that on the fatal morning decedent was not handling the sawdust in boxes; that he saw the Ford truck that morning at Plant No. 1 partly loaded and backed up to the fuel bin. He also testified that he made an investigation, but was unable to find anyone who had given decedent an order to go down town upon an errand. *9 By stipulation, the testimony of Mr. Harper, given upon rehearing before the Commission, was introduced in evidence and read to the court and jury. By this testimony, it appears that frequently decedent would go in his own car upon errands for the Door Company instead of going in the truck and that decedent made quite a few trips to the machine shops to get stuff repaired that belonged to the company. We quote from Mr. Harper’s testimony: “Q. What is the fact about it being part of his” (decedent’s) “job when this machinery was out of repair of having to take it to the shop to have it repaired? Did he have to do that? A. That would not come under my observation because he was at the other plant but the only time I knew about was when I would call him to go to the shop for me and lots of times I would see him hauling the wood trucks with trimming and shavings and that is the only time I saw him simply because he stayed at Plant 2 and I did not go to this plant except when I was called. Lots of times when we had stuff that was small we would take his car and go and I would say to him for instance ‘when will you have to go to the shop again’ and maybe he knew and maybe not, and I would say, ‘when you go down again bring that back and don’t wait for me to call you and disturb the office, but the first time you get the chance then you go get it’.” Fuel boxes or trucks, to which metal wheels or castors were attached, were in use in the Door Company’s plants by means of which mill ends and sawdust were transported; and, at times, in the course of his employment, decedent handled these fuel boxes or trucks by loading them upon the Ford truck at one plant and transporting them to the other plant. It is admitted that the Albany Door Company had elected to protect its employees under the Workmen’s *10 Compensation Act and to that end had complied with the provisions of said act. The question to he determined herein is whether the trial court was justified in submitting the case to the jury. It is contended by the State Industrial Accident Commission, which will be referred to herein as the Commission, that there is no evidence in the record tending to prove that the accident which resulted in decedent’s death arose out of or in the course of his employment. The Commission insists that the state of the record is such that an inference to that effect must be based upon not only another inference but a chain of inferences. Seduced to simpler terms, therefore, the question is whether facts have been proved upon which an inference could be based to the effect that the accident, causing decedent’s death, arose out of and in the course of his employment. The question may be further simplified by bearing in mind that in determining whether the cause should have been submitted to the jury, direct evidence of any fact or facts should be construed as proof thereof. Where any fact, even though disputed, is disclosed by direct evidence, such fact may support an inference, because, with respect to disputed testimony in solving the question here involved, it is not for the appellate court to determine what the truth is. This court has but to ascertain whether there is direct testimony which the jury could have construed as proving the fact in question. The testimony of Ferrin, who, as stated, was with decedent in his work constantly for sixty or seventy days until the day before the accident in suit, is to the effect that during said period of sixty or seventy days, decedent did not leave his employment on any *11 business of Ms own. From that, in the absence of any direct testimony whatever to the contrary, it could be inferred that on the day of his death he did not do so. The Jackson street railroad crossing is upon the usually traveled route between the Door Company’s plants and the Albany Iron Works and other machine shops where repairs were made for the Door Company. When decedent went down town from the Door Company’s plant, he- would cross the railroad at that crossing. We quote from Ferrin’s testimony: * ‘ Q. When you were with him, and he was engaged in Ms usual work how often would he cross Jackson street, that is the Jackson street railroad crossing? A. When we would be sent up town after something. Q. And how many times would that be, ordinarily, a day? A. Oh it would be — I don’t think it would be more than two or three times a week, maybe. ’ ’ ConstrMng the foregoing excerpt of testimony most favorably to claimant, as we must for the purposes of the question involved, it discloses that in the course of his employment, decedent made from twenty to tMrty trips across that crossing during the time Ferrin was with him. Ferrin further testified that the manager of the Door Company, Mr. Morris, appeared at decedent’s truck only once during that time. Manifestly, many of the trips decedent made across the railroad crossing were made without any orders from the manager. In spite of Mr. Morris’ testimony to the contrary, Mr. Harper’s evidence, above quoted, when construed most favorably to plaintiff, discloses that decedent’s employment embraced within its scope the exercise of some discretion on decedent’s part as to when he *12 should go on an errand with reference to machinery which had been repaired, or was to be repaired, without waiting for express orders or for the head of the department to call him. This construction does not involve any inference. Decedent was told not to wait for an express order, but “the first time you get the chance then you go get it”. Harper’s said testimony is contradictory of Morris’ testimony to the effect that decedent was not allowed to leave the place at any time without an express order from the head of a department or an official of the Door Company. Ferrin’s testimony, in reference to decedent leaving the plant to deliver freight, is also contradictory of the manager’s declaration that an employee was not supposed to leave the plant at any time during working hours without an express order from an official or the head of a department. On that point, Ferrin testified that decedent merely ascertained from the bookkeeper whether there was freight to be shipped. It appeals to us that it would be very unusual and cumbersome to require a truckman to obtain an express order each time freight was to be taken to the shipping point from the plant. A wheel was found in decedent’s ear shortly after the fatal accident. There is direct evidence to the effect that similar wheels were in use upon the fuel boxes or trucks above mentioned. There is direct evidence that these wheels were constantly becoming detached from the trucks by reason of the bolts by means of which the wheels were attached being pushed through the woodwork. There is direct evidence that several such trucks or portable boxes were minus these wheels. There is direct evidence also that metal plates or bands had been in use reinforcing the portion of the trucks to which these wheels had been fastened, but these *13 metal bands had been lost. The wheel, itself, is physical evidence that to adapt a metal band to purposes of reinforcement of the wooden portion of the truck, holes through such reinforcing band or plate would have to be drilled to correspond with the holes upon the frame of the wheel through which the attaching bolts might pass. With direct evidence that for sixty or seventy days consecutively, decedent did not go upon any errand personal to himself, during working hours; that during that time he went across the crossing in suit from two to three times a week in the course of his employment ; that except upon one occasion there was no opportunity for decedent to have received any order directly from the manager of the company; in other words, that many of the twenty or thirty trips across said crossing were made by decedent in the course of his employment without any express order from the manager; that one of the subordinate heads of the company, with authority to do so, had directed decedent to use his discretion as to when he should go and get machinery which needed attention; that the portable boxes or trucks used for moving fuel in the plant of the company were in need of reinforcing plates to render them fully efficient; that the wheel in decedent’s car at the time of the accident would afford means for determining where the necessary holes should be bored for such a reinforcing plate by the use of which at least one portable box could be improved by accommodating said wheel, and that such reinforcing bands and wheels, similar to the one in evidence were gone from several such portable boxes or trucks; and in the absence of any evidence whatever tending to show that decedent was on an errand personal to himself, we think that the jury could, at its option, infer that de *14 cedent was npon Ms employer’s business when he was Mlled. TMs inference, if drawn, would not be based upon any other inference; but upon the foregoing chain of facts. We have held that, where undisputed direct testimoney establishes a fact, an inference to the contrary cannot be invoked. Judson v. Bee Hive Auto Service Co., 136 Or. 1 (294 P. 588, 297 P. 1050, 74 A. L. R. 944). In the case at bar, however, as above stated, the direct evidence of Morris, restricting the right of decedent to leave the Door Company’s plant to those occasions only when some official or head of a department expressly ordered him to do so, is itself contradicted by the direct evidence of Ferrin and Harper. For the reasons above stated, the judgment of the circuit court is affirmed. Band, C. J. and Bailey, J., concur. Campbell, J., dissents.