Mackay v. Commission of Post

Mr. Justice Benson delivered the opinion of the court. We shall consider the various assignments of error in the same order in which they are discussed in appellant’s brief. 1. Assignment numbered 10 involves a construction of the Employers’ Liability Act (Laws 1911, p. 16), since defendant contends that climbing a ladder does not involve the use of machinery or any of the enumerated employments mentioned in Section 1 of the law, and that therefore the acts complained of do not fall within the scope of the statute, and that it was entitled to the directed verdict for which it asked. Attention has been directed so frequently to the final clause of Section 1 of the Employers’ Liability Act that it would seem to be unnecessary to reiterate its terms; but for the purpose of this discussion we may say that it reads thus: “And generally, all owners, contractors or subcontractors 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 — 616 — 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. ’ ’ Commenting upon this clause, in the case of Davis v. Carlton Limber Co., 77 Or. 441 (151 Pac. 652), Mr. Justice Bean says: “It may now be regarded as settled by the decisions of this court that the general clause of the law quoted above is not restricted to the particular persons and acts mentioned in the first part of the section, but that it amplifies the scope of the statute, by extending.its injunction to all persons having charge of or responsible for any work involving a risk or danger to the employees or the public. ’ ’ 2. The question as to whether or not the work involved a risk or danger is one of fact, to be determined by the jury, rather than a question of law, and we are not at liberty to disturb their finding thereon. 3. We come next to a consideration, of the demurrer to defendant’s first affirmative answer, pleading exemption from liability by reason of the fact that it is a municipal corporation and was engaged in governmental functions at the time of the alleged injury. Section 358, L. O. L., reads thns: “An action may be maintained against any of the organized counties of this state upon a contract made by such county in its corporate character, and within the scope of its authority, and not otherwise; and an action may be maintained against any of the other public corporations in this state mentioned in Section 357, in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such other public corporation.” — 617 — It must be conceded that defendant is a municipal corporation and in the class of “the other public corporations” mentioned in the statute just quoted which the law permits to be sued in their corporate character for an injury to the rights of a plaintiff arising from its acts or omissions. As to such corporations the courts have undertaken to make a distinction between such acts as are governmental or, in a sense, judicial, upon the one hand, and such as are ministerial or for the sole benefit of the corporation, upon the other. This distinction, while clear, is difficult of definition in general terms, and must be determined largely upon the facts of the individual case. In this case, however, the decisions of this court have rendered our task less difficult than would have been possible without such clear and apt statements of the law. In the case of Wagner v. Portland, 40 Or. 389 (60 Pac. 985, 67 Pac. 300), Mr. Justice Wolverton says: “But the case at bar is distinguishable from any of those cases, or any that we have been able to find applying the doctrine referred to therein. Here the city was acting in the discharge of a legal duty to repair the fire-alarm system, and the case is one of common employment for the performance of a special service for and in behalf of the city. The duty was being performed through the instrumentality of private or corporate agencies, and not through the fire department or its officers, or through officers of the city whose duty it was to perform such work; and it might be added that the work of repairing was an act ministerial in its nature. In a similar case (Mulcairns v. City of Janesville, 67 Wis. 24 (29 N. W. 565), where the city was engaged in the construction of a cistern for the use of the fire department, and an employee was injured through the negligence of other employees, it was held that the city was liable, under the doctrine of respondeat superior; so in McCaughey v. Tripp, 12 — 618 — R. I. 449, where an employee was injured while the City of Providence was engaged in the construction of a city hall: See, also, Donahoe v. City of Kansas City, 136 Mo. 657 (38 S. W. 571); City of Toledo v. Cone, 41 Ohio St. 149. Prom these latter authorities we are impelled to the conclusion that corporate liability exists in the case at bar, and that the further and separate defense of nonliability was therefore properly stricken out.” Again in the case of Giaconi v. Astoria, 60 Or. 12 (113 Pac. 855, 118 Pac. 180), in the original opinion, written by Mr. Justice Moore, we find'the following language: “A municipal corporation, in devising plans for improving public highways within its borders, acts judicially, and when proceeding in good faith is not liable for errors of judgment; but in constructing the work it acts ministerially, and is bound to see that the plan is executed in a reasonably safe and skillful manner.” Anri further in the same opinion it is reiterated thus: “The execution of the plan is a ministerial service, and for any negligent performance thereof liability attaches.” In the opinion upon rehearing of the same case we find Mr. Justice Burnett emphasizing the same doctrine and supporting it with abundant authority. In the case at bar we find a municipal corporation improving a public highway, the Yaquina River, and engaged in the actual execution of the work. It follows that the demurrer was properly sustained. 4. In this connection there has been some discussion as to whether or not such a public corporation is subject to the provisions of the Employers’ Liability Act. — 619 — It seems 'clear to us, however, that if it is amenable to a common-law liability, as is held in the cases cited, it must logically follow that it is liable under a statute so comprehensive in its scope as the one to which reference is made. In the case of Josupeet v. City of Niagara Falls, 70 Misc. Rep. 638 (127 N. Y. Supp. 527), the court says: “If it be the individual duty of the municipality to keep the streets in repair and in condition for travel, it must employ men for that purpose, and it must exercise toward them the same care for their safety of life and limb as individual employers are bound to exercise toward their employees. We can see no reason why a municipality should not be held to the same care for the safety of its employees as an individual, nor why all the provisions of the Employers’ Liability Act (Consol. Laws, c. 31, §§ 200-204) should not apply to cities equally as to private corporations or individuals — employers of labor. The act makes no exceptions in favor of municipalities, and considerations of public policy require none should be made by judicial construction or decision.” The same doctrine is declared in 5 Labatt’s Master & Servant, Section 1666. 5. Considering assignments of error numbered 4 and 5, it is sufficient to say that, so far as the requested instructions were pertinent and applicable, they were fully covered by the instructions which the court gave. 6. Assignments numbered 1 and 2 are to the effect that the court erred in permitting the plaintiff to testify over objection, that after he went to work on the dredger he had a conversation with Clarke Copeland, one of the port commissioners, in which the latter said to him: “Dave Ross is your boss. Do whatever he tells you to. ’ ’ If there was any error in admitting this testimony, it was harmless, since, if this action falls — 620 — ■within the scope of the Employers’ Liability Act, and we think it does, the corporation would be bound by the acts or directions of the foreman of the work, and there was ample evidence that Boss was such foreman, in charge of the dredger, and directing the “deck hand” as to what he wanted done. 7. The last point for our consideration is defendant’s objection to instruction numbered 32, given by the court as follows: “If you find that the plaintiff is entitled to a verdict it will be then your duty to assess the damages plaintiff has sustained by reason of the injury, and you have the right when assessing the damages to take into consideration the bodily pain and suffering that plaintiff has already undergone and will hereafter suffer on account of the injuries received, also the loss of power to perform labor and duties which he would be called upon to perform in his condition in life and the impairment of his capacity to earn money, and if, after considering all these elements of damages, you conclude that the plaintiff is entitled to recover, it is your duty to determine the sum that, in your judgment, will compensate plaintiff for injuries he received, not exceeding the amount asked for in the complaint.” The instruction does not, so far as we can discover, assume any fact, but leaves it entirely to the jury to determine. It-may be noted that the same instruction has been approved by this court in the case of Doyle v. Southern Pac. Co., 56 Or. 495 (108 Pac. 201). Finding no substantial error in the record, the judgment of the lower court is affirmed. Affirmed. Mr. Justice McBride and Mr. Justice Bean concur. Mr. Chief Justice Moore dissenting.