O'Neill v. Odd Fellows Home

BEAN, J. — This action is brought under the Employers’ Liability Act, Laws of Oregon, 1911, p. 16, entitled, An Act “Providing for the protection and safety of persons engaged in the construction, repairing, alteration, or other work, upon buildings, bridges, viaducts, tanks, stacks and other structures, or engaged in any work upon or about electrical wires, or condue — 388 — tors or poles, or supports, or other electrical appliances or contrivances carrying a dangerous current of electricity; or about any machinery or in any dangerous occupation and extending and defining the liability of employers in any or all acts of negligence, or for injury or death of their employees, and defining who are the agents of the employer, and declaring what shall not be a defense in actions by employees against employers, and prescribing a penalty for a violation of the law.” While it is alleged in plaintiff’s complaint that the work plaintiff was engaged in, at the time of the injury, involved a risk or danger to plaintiff, this of course is a conclusion which will depend upon the facts as set forth in the complaint. It will be noticed that the complaint asserts that the stepladder in question was light, narrow and unstable, without sufficient base; the weight, width or height is not stated. It is complained that the ladder was not equipped with a handrail or other appliance whereby plaintiff might steady herself. It is not alleged that the stepladder was more .than twenty feet from the ground or floor so as to. require the same to be “provided with a strong and efficient safety rail or other contrivance so as to prevent any person from falling therefrom,” as provided in the employers’ liability law, see clauses 15 to 19 of the act as outlined in Camezind v. Freeland Furniture Company in an opinion by Mr. Justice Harris, rendered June 18, 1918. The act does not command that a stepladder two or three feet in height shall be protected by a safety rail. It will be remembered that the height of the ladder is not stated in the complaint, therefore the averment of the answer in that regard is not in conflict therewith. Turning now to the general clause of-the Employers’ Liability Act, it should be noticed that the facts set — 389 — forth in plaintiff’s primary pleading do not show that the business in which defendant was engaged, namely, conducting a home for old men and women and orphan children, and in which plaintiff was employed at the time of the injury, involved a risk or danger inherent therein either to the plaintiff or the public. The first part of Section 1 of the law refers to persons engaged in the construction or repairing, etc., of any building or other structure, or the operation of machinery or the manufacture or transmission of electricity, or the use of any dangerous appliance or substance or machinery, and to shafts, wells, floor openings and similar places of danger and specifies definitely certain precautions to be taken for the safety of employees and the public. None of these things entered into the work in which plaintiff was employed. The general clause following requires that: “All owners, contractors and other persons having charge of, or responsible for any work involving a risk or danger to the employees or public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb.” 1, 2. It is manifest that this general clause, providing for care and precaution to be used in work involving a risk or danger, refers to employments additional to those mentioned in the first part of the section, which are similar in kind as to having danger inherent therein, or involved in the same, or combined inextricably, or nearly so, therewith. The act, as its title indicates, embraces within its scope what is usually termed dangerous or hazardous employment. It is a general rule of statutory construction that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest — 390 — extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned, unless the legislative intent clearly appears to the contrary: Black on Interpretation of Laws, p. l4l; 2 Lewis’ Sutherland Statutory Construction, § 360. In a certain sense, there is a risk or danger in a person going up or down an ordinary flight of stairs in a home, but this is not the kind of risk or danger embraced within the meaning of the statute. It would hardly be said that a person’s work which required him to go up and down ordinary stairs, or hang clothing on a line using a common stepladder two or three feet in height not inherently defective, and with no particular danger involved therein, would be likely to harm or would be perilous, hazardous or unsafe. The whole language of the act denotes that the kind of employment thereby protected is that which is beset with danger, the hazardous, dangerous employments similar to those enumerated in the act, or which under the circumstances or manner in which it is being executed is rendered dangerous, within the meaning of the act: See Olds v. Olds, 88 Or. 209 (171 Pac. 1046, 1048). We therefore hold that the case, as delineated by the complaint and the admitted portions of the answer, does not come within the employers’ liability law. The next question involved is whether, under .the admitted facts of the pleadings, the defendant is answerable for a common-law liability. The question involved was before this court in the case of Hill v. Tualatin Academy, 61 Or. 190 (121 Pac. 901), reference is hereby made for a full discussion of the subject to the opinion therein by Mr. Justice Moore. It was said at page 198 of the opinion: “In the case at bar it is evident upon principle and authority that, since the University holds all its prop — 391 — erty in trust for charitable purposes, it is not liable for the alleged negligent acts of its officers or employees, under the circumstances detailed, and that in directing a verdict in its favor no error was committed. ’ ’ 3, 4. An action may be maintained against an officer of a charitable institution to recover damages for an injury caused by the negligence of such person, but the action must be against him in his individual and not in his corporate capacity so that if a recovery is awarded it will not be discharged from the trust funds: 11 C. J., p. 374. See, also, Currier v. Trustees of Dartmouth College, 117 Fed. 44, 54 C. C. A. 430; Farrigan v. Pevear, 193 Mass. 147 (78 N. E. 855, 118 Am. St. Rep. 484, 8 Ann. Cas. 1109, 7 L. R. A. (N. S.) 481); Parks v. Northwestern University, 218 Ill. 381 (75 N. E. 991, 4 Ann. Cas. 103, 2 L. R. A. (N. S.) 556); 15 Am. & Eng. Ency. Law (2 ed.), 762; 6 Cyc. 975. The “Tualatin Academy and Pacific University” was incorporated by a special act of the legislature in 1854. It is admitted in the instant case that the Odd Fellows Home of Oregon is conducted without profit of any kind and is maintained by assessment made upon the lodges and membership of the State of Oregon; that all the property of the institution is held by the Odd Fellows Home in trust and not otherwise, for the maintenance of the old men and women of the order, and the care and education of the orphan children of members of the order; that the defendant is a benevolent, eleemosynary corporation and is trustee only. It is organized under Chapter V, Title XLIV, L. O. L., for the organization of religious, charitable and educational corporations, Section 6796, which specifies the powers of such corporations, provides as follows: “Upon the making and filing for record articles of incorporation as herein provided, the person or per — 392 — sons subscribing tbe same, and his or their successor or successors in office, by the name or title specified in the articles, shall thereafter be deemed a body corporate, with continual perpetual succession, and shall have power to acquire and possess by donation, gift, or purchase, and to retain and enjoy, property, real, personal, and mixed, and the same to sell, grant, convey, or rent, or otherwise dispose of at pleasure; provided, however, that no part of the resources of said corporation shall ever be used for any other than the object herein named. * * ” The restriction as to the use of the resources in this section is to the same effect as the statute under which the Tualatin Academy, etc., was incorporated, which was considered in Hill v. Tualatin Academy, 61 Or. 190 (121 Pac. 901). It seems, the reason for the enactment of the proviso quoted is that the liability of charitable organizations for the torts of their agents has been the subject of much confusion and apparent conflict among the courts passing on the question of the liability of a charitable corporation for the negligence or other torts of its officers or servants. The reason most generally assigned for denying the liability of such organization for the negligence of its officers and servants, is that to permit the institution to be held liable for the neglect of its employees, would authorize the diversion of its funds intrusted to it from the purpose for which they were derived. There are two general classes of opinions where the liability is denied. First. Those cases in which the injury was received by a person who at the time was a recipient of the charity. Second. Those cases in which the injury was inflicted on a stranger. Many of the courts have declared generally that those administering a trust fund are not responsible for the torts of their agents because damages for such torts cannot be paid from the trust fund. However, liability is recog — 393 — nized as to strangers and servants to be compensated from such trust funds. In' one jurisdiction, it has been held that a charitable corporation is liable for the torts of its sérvants the same as any private- individual or other corporation: See 5 E. C. L., p. 374, et seq., §§ 121-124. Under these conditions of the decisions of the courts, the wisdom of the legislature is apparent in making the proviso that no part of the resources of such a corporation shall ever be used for any other than the object named in the statute. The meaning of this proviso is also made clear on account of the same circumstances. The restriction is sweeping without any exception whatever. Laying aside the adjectives and conclusions, outside of the complaint as to the want of a safety rail and rubber nubs and other safety devices and precautions, which it is alleged could have been provided by defendant without interfering with the use of the ladder, and which plaintiff claims should have been furnished and taken in order to comply with the requirements of the employers’ liability law, there is nothing left suggesting negligence. Only the pure accident of catching plaintiff’s skirt on the stepladder is disclosed. The mere fact remains that plaintiff in the performance of her duties was required to use a small stepladder in hanging clothes on a line. It is not claimed, and we do not think that it could be claimed that this alone would constitute actionable negligence. According to the facts admitted in the pleadings in this case, defendant is not liable for damages. The facts set forth in- the complaint do not bring the cause within the provisions of the Employers ’ Liability Act, requiring the use of the devices mentioned and the strict care and precautions thereby enjoined. — 394 — There is no cause of action stated in the complaint. The trial court was right in granting a judgment in favor of defendant. The judgment is therefore affirmed. Affirmed. Rehearing Denied. McBride, C. J., Moore and Johns, JJ., concur.