Hornig v. Canby

BUBNETT, J. 1. The demurrer to the defense based on the "Workmen’s Compensation Act was properly sustained, for as the law then stood, a municipality was not an employer within the meaning of the statute. 2. The principal question for our decision is whether or not there was any liability on the part of the town, inasmuch as there was.no ordinance authorizing the employment of the plaintiff'. The charter contains this provision: ‘£ Canby is not bound by contract, or in any way liable thereon, unless the same is authorized by a city ordinance, and made in writing and signed by the mayor and recorder in behalf of the city; but an ordinance may authorize any officer or agent of the city naming him to bind the city without a contract in writing, for the payment of any sum not exceeding $100.” It is not pretended that any ordinance was adopted by the council authorizing the employment of the plaintiff. Employment, indeed must rest in contract, and the contention of the defendant is that authority for making the contract of employment upon which the plaintiff relies must be traced directly or indirectly to some city ordinance. This would seem to be a plausible construction of the charter provision above quoted, but, in Beers v. Dalles City, 16 Or. 334 (18 Pac. 835), the court had under consideration a section of the charter of that municipality identical in language [615] •with the one mentioned in the charter of the defendant. In an opinion by Mr. Justice'' Strahan in that case this language occurs: “That section was designed to apply to.those cases and only to those where an ordinance is required by the charter and where the work is expressly required to be let * # after, notice, as in Section 86 of the charter. ’ ’ According to that case, under the doctrine of stare decisis, it was not necessary to have an ordinance to authorize making a contract with the plaintiff for his services as substitute for his son, who was the regular employee in charge of the pumping station. 3. The minutes of the council meeting contain only this about the employment of the son under date of November 6,1916: “Motion made that Kenneth Hornig be appointed to operate the engine of the waterworks for the remainder of the year, at $16.00 per month. Carried/’ Supplementing this, the plaintiff introduced oral testimony of individuals present at the meeting, to the effect that it was agreed that young Hornig should be employed, and that he should procure the services of his father in his place when he was absent. This supplemental testimony, varying the journal record, was justified by Stout v. Yamhill County, 31 Or. 314 (51 Pac. 442), holding in effect that a party contracting with a County Court is not bound to see that the full terms of the contract are entered on the journal of the court. 4. There was enough testimony, therefore, on this point to take to the jury the question of whether or not the plaintiff was in the employ of the municipality at the time of the accident. 5. This being true, the way was open for the jury to find that the town was negligent in violation of the [616] Employer’s Liability Aet (Laws 1911, p. 16), in that it did not use every care and precaution which might have been used without impairing the efficiency of the plant, to prevent the plaintiff’s clothing from catching upon the exposed key and causing his injury. The assignments of error are centered about the proposition that the section of the charter referred to prevents the employment of the plaintiff unless the right to engage him can be derived mediately or immediately from an ordinance. The Beers case forecloses this contention, and the result is that the judgment must be affirmed. Affirmed. McBride, C. J., and Benson and Harris, JJ., concur.