Susznik v. Alger Logging Co.

Mr. Justice Benson delivered the opinion of- the court. There are some 35 assignments of error which we shall consider as far as necessary to a determination of the case. 1, 2. The first of these is that the trial court erred in requiring the defendant to elect between its affirmative defenses upon the ground of inconsistency. This court has frequently passed upon the question here presented, and the rule is quite clearly expressed — 195 — by Mr. Chief Justice Thayer in the case of McDonald v. American Mortgage Co., 17 Or. 633 (21 Pac. 886), when he says: “The rule, as I understand it, in regard to inconsistent defenses, is that defenses are not inconsistent when they may all be true; that they are only inconsistent when some of them must necessarily be false, if others of them are true; in such a case they cannot be united.” This has been reiterated by this court in several later cases. Applying such test to the answer in the present case, we must conclude that there is no inconsistency between the plea of the compensation act and the plea of negligence, for both may well be true. It must be conceded that the allegation in the first defense that plaintiff was riding on defendant’s train without its consent or knowledge, and the further averment of plaintiff’s negligence, were irrelevant, since, under the compensation act, all questions of this sort are entirely eliminated. These allegations were mere surplusage, in no way affecting the vital elements of the defense, therefore might properly have been stricken out. The court erred in requiring the defendant to elect. 3. The second assignment is that the court erred in striking out the defense of the Workmen’s Compensation Act. This ruling of the trial court was evidently based upon the theory of plaintiff’s counsel that, since the complaint alleges that the relation of passenger and carrier existed at the time of the accident, the defendant should be limited to denials. We cannot agree with court or counsel in this, but must insist that defendant was clearly entitled to plead, and prove if it could, that the relation of master and servant existed, and that, by reason of the compensation act — 196 — of the State of Washington, the courts of Oregon were without jurisdiction to entertain the action. It follows that the court erred in this respect also. 4, 5. This brings us to a consideration of the evidence upon the question as to what was the true relation of the parties at the moment of the injury. They agree in their allegations that plaintiff was not a passenger for hire. There is no substantial conflict in the evidence as to the facts upon which we are to determine whether or not the relation of master and servant then existed. Plaintiff had visited the Portland office of defendant, and had there been directed by the person in charge to go to its camp near Skamokawa, Washington, to begin work. When he reached Skamokawa, he went to the defendant’s logging train, and was there directed by the engineer to place his baggage upon the pilot of the engine and get aboard. He rode upon the pilot to the logging camp. Within a very brief period of time after such arrival, the accident occurred. He had not left the immediate vicinity of the train, had not reported to the foreman, had not spoken to anyone in charge, was not upon the pay-roll, and never did do any work or receive any compensation from defendant. Under these conditions, we are called upon to determine whether or not the plaintiff was an employee of defendant in the sense that he was entitled to indemnity under the compensation act of the State of Washington, and thereby barred from bringing this action: This is the first time we have been called upon to consider a compensation act, but this court has indicated quite clearly a reasonable test as to the relation of master and servant in the recent case of Putnam v. Pacific Monthly Co., 68 Or. 54 (136 Pac. 835, Ann. Cas. 1915C, 256, 45 L. R. A. (N. S.) 338), wherein Mr. — 197 — Chief Justice McBride in the opinion upon rehearing says: “The testimony shows that deceased was employed by defendant as a stenographer on the fourth floor of the building; that her duties began at 8:30 in the morning; and that the accident happened at 8:20. At the time of her accident her time was her own. She was not the servant of the defendant until it was time for her to begin such service.” The case at bar is still more decisively differentiated in that plaintiff had never worked for defendant, and had never reached the point where work could be assigned to him. We have read with care the English cases cited in the briefs, but they are not convincing upon the facts before us. The case most nearly in point is that of Leonard v. Baird & Co., 38 Scot. Law Rep. 649, but in that case the injured person had been employed to work in a coal mine. He had gone down into the pit. Before commencing work his lamp went out, and he took it and lighted one, borrowed from a fellow-workman, to the lamp station. While he was returning, he was crushed by a rake of hutches, and died from his injuries. Even under this state of facts, the court was reluctant to hold that he came within the provisions of the compensation act. There is no doubt that he was engaged in the employment of the company. The facts in the case at bar are very different. It is true that the defendant has pleaded in his answer and tendered in evidence a written opinion of the Industrial Insurance Commission of the state, based upon a reading of the complaint in this action, in which it held that the plaintiff is entitled to indemnity under the compensation act. But the same was prepared and delivered by two members of the commission in Portland, unofficially, since there, was — 198 — no application for such, compensation pending before them, and it does not impress us as having any more binding effect than a private expression of opinion by a trial judge upon the street corner. We conclude that plaintiff was not engaged in the employment of defendant at the time he was hurt. From this conclusion we reach the further inference that defendant suffered no substantial wrong by reason of the trial court’s action in striking out of its first affirmative defense, the allegations relating to the compensation act, since, under the evidence, such defense must necessarily fail. 6. We next consider the effect of the order of elec-, tion which resulted in striking out defendant’s plea of contributory negligence. Plaintiff insists that it is not a plea of contributory negligence, because it does not admit any negligence upon the part of defendant, and cites a number of authorities supporting his position. However, this court in the case of Edlefson v. Portland Ry., L. & P. Co., 69 Or. 25 (136 Pac. 834) has settled the question. In this case Mr. Chief Justice Moore says: “Though a process of reasoning seems to support the rule thus announced in cases where contributory negligence is specially alleged as a defense, it is believed that where, as in the case at bar, the answer denies the negligence charged in the complaint, and avers specially that the injury complained of was caused by the carelessness of the person hurt, without alleging that such negligence was contributory, the special plea is not equivalent to a confession and avoidance. It is possible that the injury might be sustained by a person sui juris without any negligence on the part of the party owning or controlling the instrumentality causing the hurt. In such cases, to hold that the answer must confess negligence, so as to — 199 — avoid its consequences, in order to introduce evidence of the carelessness of the person hurt, is to place the defendant at a great disadvantage before the jury. ’ ’ We conclude, therefore, that defendant was entitled to have the jury instructed upon the law of contributory negligence, and that the trial court erred in refusing such requested instruction. For these reasons it is not necessary to consider the other assignments of error. The judgment of the trial court is reversed and the cause remanded for a new trial. Reversed. Rehearing Denied.