King v. State Industrial Accident Commission , 211 Or. 40 ( 1957 )

ROSSMAN, J.

This is an appeal by the defendant, State Industrial Accident Commission, from a judgment in favor of the plaintiff, Elsie King, which the circuit court entered in a proceeding instituted by her as the widow of Lyle M. King to recover compensation for her husband’s death. The judgment was entered after a jury had found that (1) at the time of his death King was an employee of a firm entitled Huber & Fisher; (2) King was engaged in a hazardous occupation; and (3) the accident which resulted in the death arose out of and in the course of King’s employment.

The death of Lyle M. King, to whom we will refer as King, occurred through drowning January 2, 1954, after lie had entered a small boat at Waldport on Alsea Bay. After the death, the plaintiff filed with the defendant Industrial Accident Commission a report of it. September 3,1954, the defendant rejected the claim for compensation benefits. January 20, 1955, the commission reaffirmed its order. February 7, 1955, this proceeding was instituted.

The complaint alleged that at the time of the fatal accident, King was an employee of the aforementioned partnership, that he and the partnership were engaged in a hazardous occupation and that the work consisted of “construction of a log raft, placing of boom sticks, repairing a pile driver, and driving of piling at the logging operation of his employer on Alsea Bay near Waldport.” Further, the complaint, alleged that the defendant rejected the claim for compensation benefits “on the grounds that the deceased was an independent contractor and not subject to the provisions of the Workmen’s Compensation Law on the date of said death.” The answer admitted the averment last quoted. Other parts of the complaint, which the answer denied, stated that Bung “was an employee of Huber & Fisher at the time of his death. ’ ’ In the manner just indicated, the issue was created to which the parties have devoted their principal efforts; that is, was Bang at the time of the accident an employee of Huber & Fisher or was he an independent contractor.

The following is a copy of the jury’s verdict:

“1. Was Lyle M. Bang on January 2, 1954, an employe of Huber and Fisher and while in such employ engaged in a hazardous occupation?

“Answer: — yes — (yes or no).

(If your answer is ‘no,’ you need not answer Question 2. If your answer is ‘yes,’ then you will answer the following question.)

“2. Did the accident and resultant death of Lyle M. King on January 2, 1954, arise out of and in the course of his employment as an employee for Huber and Fisher?

“Answer: — yes — (yes or no).”

The challenged judgment remanded the claim to the defendant

“to cancel and set aside its orders of September 1, 1954 and January 20, 1955, and that she be granted widow’s benefits and that her minor children, Judy Kay King and Larry D. King, be allowed benefits as surviving dependent children * *

If the trial in the circuit court was free from prejudicial error and if the verdict is supported by substantial evidence, the challenged judgment must be affirmed. The following is a synopsis of the evidence.

The firm of Huber & Fisher was engaged in the logging industry in the area adjacent to Alsea Bay. King had entered into a contract with the firm whereby he agreed to fell trees, buck the logs and skid them to the bay. The place of the operations was about two miles across the bay from Waldport. In conducting his operations, King had three employees. One was his son Alton, another his son-in-law Loren McWhorter and the third, Henry King, seemingly was his brother. The record affords scant information as to the terms of the logging contract which King had with Huber & Fisher, but indicates that it was in parol and that operations began in October. Sometime after the logging got under way the site was shifted and in consequence provision had to be made whereby the logs that were brought to the bay by King could be cared for. Thereupon Huber & Fisher decided to construct a log boom for the reception of the logs and incidental thereto to drive piling so that the boom sticks which would form one side of the log boom could be fastened to the piling, thereby preventing the boom from floating away. Since no pile driver was available, it was necessary to construct one. King and his three aforementioned helpers were engaged by Huber & Fisher to build the pile driver. After it had been constructed, Huber & Fisher transported it to the place where it would be used, and then King and his crew were employed to drive the piles and string the boom sticks. Parts of November and December were devoted to the work which we just mentioned. One witness testified that at the time of King’s death (January 2, 1954) “the lower end” of the log boom was not finished. Another said that about ten or fifteen of the boom sticks had been strung and that six or seven more remained to be put in place. While King and his fellow workers were performing the above-described work, the logging operations were suspended.

The above shows that King performed two types of service for Huber & Fisher; one consisted of logging and the other of construction work. Both parties agree that the logging (falling, bucking and skidding) was performed under an agreement which constituted King an employer. King was, in fact, registered with the commission as an employer engaged in logging. The parties are at issue as to King’s status while he and the other three men were engaged in constructing the pile driver and the log boom.

January 2, 1954, King, who lived about 55 miles from Waldport, left his home at 6:00 a. m. in his pickup truck and shortly called at the homes of two, or possibly all three, of the men with whom he worked. The group drove to a dock at Waldport where King kept a boat, 14 feet long, equipped with a seven-horse-power motor. He and the other three men generally used the boat in crossing the bay to the scene of their work. After he had left his home King was not seen alive by any person who testified. His body and that of his three companions were later found in the bay — all had drowned. Likewise, the upturned boat and its motor were found in the bay. King’s watch had stopped at 9:05 a. m. When his body was found it was seen that he was wearing his working clothes including his logging boots. The shoes which he wore when he left home were in the truck. No one claims that King or any of his companions had reached the site of the incomplete log boom. Evidence indicates that during the night before the fatality a storm had come in from the ocean and the water of the bay had become rough. In the morning when death struck, an exceptionally high tide was running. The boat which King possessed would have been necessary to their work of stringing the log sticks had that been the work for which they were headed. The trip across the bay, two miles in length, was the only means by which the group could have reached the boom which they were constructing, for the other route by automobile was impassable at high tide.

The defendant contends that the record contains no evidence showing that King was an employee of Huber & Fisher. It argues that King worked upon the pile driver and the log boom as an independent contractor. If that is true, the record contains no evidence as to the amount which King was to receive for his work. The plaintiff submits that King and his three fellow workers built the pile driver, operated it and were constructing the log boom as employees of Huber & Fisher. According to her, they worked for wages which were based upon an hourly scale.

OES 656.202 says:

“If any workman * * * sustains a personal injury by accident arising out of and in the course of his employment * * * he or his beneficiaries, if the injury results in death, shall receive compensation * *

ORS 656.124 says:

“If any person engaged in a business subject to * * * as an employer, in the course of such business, lets a contract the principal purpose of which is the performance of labor, such labor to be performed by the person to whom the contract was let or by such person with the assistance of others, all workmen engaged in the performance of the contract are deemed workmen of the person letting the contract, if the person to whom the contract was let was not engaged in a separate business involving the occupation covered by the contract at the time of commencing the performance of the contract.”

We shall now summarize the evidence which the plaintiff presented upon the issue of which we have just taken note. It was received over the objections of the defendant, and the rulings which admitted it are the subject matter of assignments of error to which we will later give attention.

Lawrence C. Huber, a member of Huber & Fisher, gave the following testimony:

“Q As a matter of fact, did Mr. Lyle King do other work for Huber & Fisher in the late part of 1958 as an employee of Huber & Fisher, as well as the work he had done as an independent contractor?

“A In the late part he did. I might clarify this a little bit. Due to the movement of this next setting which required putting the logs into the water over a tide flat, instead of putting them into the water over a rollway, which had been the case prior to bad weather, why it involved driving some piling into the channel across a distance of about a thousand feet of tide flat, and stringing some boom logs out there to corral the logs as they come in. It was necessary to construct a pile driver, as there was no facilities of driving piling on the river, and in addition there was other specific work they could have done later on and done the welding. We decided to construct the pile driver and use it for putting this work, piling in for our own operation, and then at a later date I agreed with Mr. King that he would work, he and his crew, for driving on the river. That work at that time would be doing work for us, and at the time doing work on the pile driver as construction work would be doing it for ourselves.

*4¿. jr, jf. ji. w w w ÍF

“Q In all of their pile driving activities then, you would say they were acting as your employees ?

“ A Tes. Agreed to pay them for the work they did on the water.”

Another part of Mr. Huber’s testimony is the following:

“Q At the time Lyle King and his men were driving this piling, did you consider them your employees in that ease?

“A Tes.

“Q On an hourly basis?

“A I paid them by the hour. . . . Paid at the rate of $2.00 an hour, such as that.

* * * Sfs #

“Q Had the Kings, include Lyle King, been engaged in stringing those boom sticks?

“ A Tes. We were short-handed and had employed the Kings to do this work, which we agreed to pay them for. He was keeping his own time in the matter and inasmuch as Mr. Fisher wasn’t there a great deal of the time, and it was impossible for me to be there except to check and see what had been done, we agreed to let them go ahead and do the work to speed things along, get the operation started. They had done quite a bit of falling and bucking and were anxious to get tbe logs in the water. Instead of getting someone else to do it, told them to go ahead and we would pay them for it.

‘ ‘ Q This would be work then of Huber & Fisher ?

“A Yes.

“Q It wasn’t a part of his logging contract?

“A No, it wasn’t.

# * # #

“Q Was it the practice of Mr. King and his helpers to go over and work without either you or Mr. Fisher being present?

“A Yes, because neither Fisher or myself were on the job continuously. We had to depend on that part of it. We had that agreement. That is why Mr. King was keeping the time on the work.”

The plaintiff testified that her husband, with her assistance, kept records of the time which he and the other three men spent upon the work of constructing the pile driver and the log boom. She produced two sheets of those records and they became exhibits. One of the two is the December page of a 1953 calendar with some marldngs upon it. The other is a page of a common notebook containing entries of a bookkeeping character. The former became Exhibit B and the notebook sheet became Exhibit A. The witness swore that all of the entries on the two sheets were made by her husband with the exception of three which we will presently describe. Upon some of the numbers of the calendar page which designate days there appear penciled circles and X’s, the meaning of which the witness was not permitted to mention. Upon each of the figures of the calendar page which designate December 2, 4, 7, 12, 14 and 16, her husband penciled the figure 4, and upon each of the numbers which designate December 10, 11 and 15 he penciled the figure 3. Ixi the spaces which represent December 10 and 11 he wrote, in addition to the penciled 3’s, the words “Not Loren.” In the space which represents December 15 he penciled, in addition to the figure 3, “Me The entries which the plaintiff said she made appear in the places which designate December 7, 8 and 9. Over the figure 7 she wrote “F didn’t wk”, and testified that it meant “Fred didn’t work.” Fred, whoever he may be, is not involved in this proceeding. Under the figures 8 and 9, which represent December 8 and 9, she wrote “No wk.” The witness swore that she made the entries upon her husband’s direction. The following is a copy of Exhibit A: -

“Huber & Fisher — Dee. 1953

Assemble & work on pile driver

Dee 2 — 8 hrs. Alton Henry Lyle King King King Loren McWhorter

” 4 — 8 9 9 9 9 99 99

7 — 8 9 9 99 99 99 99

10 — 8 99 99 9 9 9 9 9 9 0

” 11 — 8 ” 9 9 99 99 0

12 — 8 99 99 99 99 99 99

14 — 8 99 99 99 99 99

15 — 8 99 9 9 9 9 99 % 99

” 16 — 8 99 99 99 99 99

17 — Loren & John rafting hrs

18 — Alton & J ohn rafting ’ ’

9 day 8 hrs at 2.00 — 16.00 $144.00

q ” ” ” *> ” _ ” 144 00

7 ,, » >> ” _ » 1121)0

8i/2 ” 8 ” ”3.00 — 24.00 204.00

608.00”

It will be observed that the above computation is concerned in part with December 17 and 18. However, those entries did not concern Lyle King and, hence, we will mention them no further.

The plaintiff testified that her husband compiled Exhibit A from the entries upon Exhibit B (the calendar page) and that he had prepared records in similar form in preceding months. She swore that monthly, after the computations were made and the sum due was paid, the sheets were discarded. We mentioned that in the space upon the calendar page which designates December 2 a small penciled 4 appears. Returning to Exhibit A it will be noticed that all of the four members of the crew were entered as having worked that day. Likewise, in the spaces on the calendar page which represent December 4 and 7 there appear small 4’s. Exhibit A entered all four members of the crew as having worked on those two days. On December 8 and 9 the calendar page has an entry “No wk”. Exhibit A omits those two days. In each of the spaces on the calendar page which represent December 10 and 11 there appear, as we have indicated, “Not Loren” and small penciled 3’s. On Exhibit A ciphers were entered under the name of Loren McWhorter for December 10 and 11, but check marks under the names of the other three members of the crew. We turn now to December 15. IJpon that day of the calendar page there appear the two entries “Me y2” and the numeral 3. On Exhibit A the fraction y2 was entered under the name of Lyle King and check marks under the names of the other three members of the crew. In the computation constituting the last of the entries on Exhibit A, all members of the crew were given credit for the time which the above entries showed they worked. Three of them were credited with $2.00 per hour, and one, being the member who had designated himself as “Me y2”, was credited with $3.00 per hour.

It is apparent from the above that the calendar sheet and the page torn from the notebook represented a-crude but effective manner of keeping track of the men’s time. It will be recalled that Huber testified:

“Mr. King was keeping the time on the work. * * * I paid them by the hour . . . paid at the rate of $2.00 an hour, such as that.”

The above constitutes evidence that the work upon the pile driver and the log boom was not performed under the logging contract, but was rendered as employees of Huber & Fisher upon a basis of an hourly wage.

However, the mere fact that the work upon the log boom was separate from the contract for logging does not establish that on January 2, when death struck, King and the other three men intended to work upon the log boom. The defendant contends that it may be that at that time the men planned to go to the scene of the suspended logging operations and had no thought of working upon the log boom. Since the record indicates that a yarding engine which was a part of King’s equipment required attention before logging could resume, the defendant argues that it may be that on January 2, when King entered the boat at Waldport, he intended to go to the yarding engine and prepare it for operation. In fact, the defendant argues that it is as probable that King intended to work on the yarding engine as upon the log boom. We shall now take note of evidence which was presented upon that score.

The plaintiff testified that in the evening before the fatality and in the morning immediately before her husband departed upon the trip which cost him his life, he told her that he had some more work to. do upon the boom sticks arid, that he would perform- it that- day (January 2). Alma Monyer, plaintiff’s daughter, and at the time of his death the wife of Loren McWhorter, testified that on January 2 immediately prior to the departure of her husband from their home in the company of her father, the latter declared that “they was going over to work on the boom sticks over there at Alsea Bay at Waldport.” Dorothy King, widow of Henry King, testified that on the afternoon of Friday, January 1, King came to her home and, speaking to her husband, said:

“* * * let’s go over and finish up the boom sticks and put the piling poles, or something * * * the piling or boom sticks or something * * * I can’t remember the exact words but, anyway, that they be ready for their job Monday morning.”

Homer Hull, a tree farmer, testified that on January 1, while he and King were discussing a venture which the two had under consideration, King told him that on the following day “he was going to Waldport in the morning” to “straighten the boom logs.”

The above is a sufficient statement of the facts.

The appellant (Industrial Accident Commission) presents seventeen assignments of error. Before considering those which challenge the sufficiency of the evidence, we will give attention to others which contend that the circuit court admitted inadmissible evidence and gave to the jury erroneous instructions.

The fourth assignment of error is based upon a ruling which admitted into evidence Exhibit A (the sheet of paper which contained the computations). The objection to it was “irrelevant, immaterial.” Counsel elucidated by adding:

“The last date shown on the record offered is under date of December 18, 1953. It’s completely irrelevant in period of time to prove any point in issue at the trial of this case. They have brought an action which took place some. two weeks after that.”

The fifth assignment of error, which we will consider concurrently with the fourth, is based upon a ruling which admitted into evidence Exhibit B (the calendar page and its entries). The objections to it were the same as those to A, with the following addition: “seems to be two different handwritings on the exhibit.”

The defendant cites no statute or rule of evidence which it claims was violated when Exhibits A and B were received in evidence, with the exception of the rule against irrelevancy and OKS 41.280. The latter says:

“The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution or making, in a part material to the question in dispute, shall account for the appearance or alteration. * * * If he does that, he may give the writing in evidence, but not otherwise.”

It is true that Exhibits A and B were concerned with labor which was performed two weeks before the deceased lost his life, but the jury could have found that King was hired, not only for the period represented by A and B, but to perform in its entirety the job of constructing the log boom. That work was not complete when the drowning occurred. Exhibits A and B had a tendency to show that Kang was an employee, working for wages, and the jury could reasonably infer from the evidence that the relationship of employer and employee would have continued until the log boom was completed had death not intervened. The two papers were, therefore, material.

The plaintiff’s notations upon Exhibit B, which are described in a preceding paragraph, were not alterations. Her uncontradieted testimony was that she made them under the direction of her husband as his assistant. They were original entries. Further, she fully explained them. The fourth and fifth assignments of error lack merit.

The sixth assignment of error combines within itself two rulings which were made during the reception of evidence. Each of the two denied a motion for mistrial. The plaintiff’s first witness was herself. After she had stated that her husband “had done bucking and falling and yarding for Huber & Fisher,” she was asked: “You said he did have a contract to fall and buck and yard?” and replied, “He had a verbal contract.” Presently the defendant was granted the privilege of inquiring of the witness concerning her knowledge of the relationship between her husband and Huber & Fisher. Defendant then asked her: “Mrs. King, were you ever present at any time when Mr. Huber or Mr. Fisher and your husband made the contract that you stated they made?” The answer was “No, I was not.” In reply to another question, the witness granted that her only knowledge of the relationship was “hearsay.” At that point, defendant moved that “the witness’ testimony in regard to the contract be stricken.”

It will be noticed that before the motion was made, the word “contract” had been uttered four times, twice by defendant’s counsel, once by plaintiff’s counsel, and once by the plaintiff herself. But, in all four instances, it was used in connection with Kang’s work of logging, and not to characterize the arrangement under which the pile driver and the log boom were constructed. We understand that the defendant agrees that King performed his logging operations under some form of compact whereby he became an employer. Before a ruling was made upon defendant’s motion, colloquy occurred in which plaintiff’s counsel expressed a desire to show, through records, that the work upon the boom sticks was not performed as a part of the logging undertaking. The trial judge interrupted the colloquy by declaring, “If she has no knowledge she can’t testify about a contract that she has no knowledge of.” Shortly he terminated the discussion by ruling, “Well, let the objection be sustained. I think it’s a proper objection.” Then defendant’s counsel was granted a further privilege of asking the witness some questions. He asked: “Mrs. King, were you ever at the operation on the other side of the bay?” and she answered “No, I was not.” At that point, defendant moved, “I move that all of the testimony offered by the plaintiff’s witness at this time be stricken as irrelevant and hearsay.” The motion was sustained. Thereupon plaintiff’s counsel announced a purpose to inquire of his client whether she “helped him and was she doing any bookkeeping in connection with his work.” The court, in granting the request, added, “There is no contract in evidence yet or any evidence of a contract.” Presently the examination centered in the circles and X’s that appear upon Exhibit B. Plaintiff’s counsel then asked, “So you have no idea of what the circles on the calendar did mean?” She replied, “Not unless they meant that they were just working # * Thereupon defendant’s counsel declared, “I object. I move .for a mistrial.” The ruling was, “I will strike that and withdraw it from the consideration of this jury.” As the examination proceeded, plaintiff’s attorney asked, “For the months of October and November, did you know how the men were paid —”. An objection, on the ground of irrelevancy, was sustained by a ruling which asked plaintiff’s counsel, “What do you claim for back in October and November?” Colloquy again occurred, in the course of which plaintiff’s counsel said, “We admit, Your Honor, that under this contract Lyle King was paid —At that juncture defendant stated, “I object to this continual reference to a contract, Your Honor, and I move for a mistrial.” The motion was denied, whereupon the court and counsel went into chambers. After they had returned to the courtroom, plaintiff’s counsel asked his client, “Did you make or did you and your husband make checks payable to these other three men during the latter half of October and during the month of November?” Defendant’s objection on the ground of irrelevancy was overruled, with an admonition that plaintiff would have to show that the fact which she sought to elicit had some connection with the incident of January 2. At that point, defendant’s counsel said, “May it please the Court, the defendant would like the record to show also that defendant is moving for a mistrial in the event that there is no connecting up because of the fact that once the bell is rung you cannot unring it.” The ruling was, “I can’t consider a motion for a mistrial in the future.”

Although we have read and reread the testimony concerning the above incidents, we found nothing that indicates that the plaintiff was seeking to get before the jury any inadmissible testimony, or was attempting to prejudice the jury against the defendant by an improper utterance. The plaintiff’s unsuccessful efforts to say that the logging was done under a contract could not have prejudiced the defendant, for the latter itself asserted that the logging was performed by the defendant as an employer. Far from contending that the construction work upon the pile driver and log boom was performed under a contract, the plaintiff apparently wished to testify that it was done by her husband as an employee. But the objections of counsel for the defendant, who was thoroughly alert, and the emphatic rulings of the trial judge prevented the plaintiff from saying anything upon that subject. In fact, the rulings struck from the record some testimony which possibly should have been permitted to remain.

It is our belief that the motions for mistrial were properly denied. This assignment of error is without merit.

The seventh assignment of error challenges rulings which permitted Mrs. Monyer, Mrs. Dorothy Bang and the plaintiff to give the testimony summarized in a preceding paragraph in which each testified that shortly before Bang departed upon the trip which took his life he told them that he intended to cross the bay and complete the log boom. The eighth assignment of error is based upon a similar ruling concerning Homer Hull, who also testified that Bang had told him of his intention to cross the bay and finish the log boom.

The principal attack upon the rulings which permitted those witnesses to testify is that the testimony which they gave was hearsay.

In State v. Farnam, 82 Or 211, 161 P 417, Ann Cas 1918A 318 (homicide of a woman seduced), one of the principal questions was the identity of charred remains found in the ashes of a barn which had burned to the ground. The state wished to prove that the decedent, Edna Morgan, had gone to the barn with the defendant. The decision held that the state was entitled to show that on the day prior to the homicide she had said she could not go home with some girl friends who were present because the defendant was coining to see her. We quote from the decision:

“If the doing of an act is a material question, then the existence of a design or plan to do that specific act is relevant to show that the act was probably done (1 Wigmore, Ev., § 102); and, considering the plan or design as a condition of the mind, a person’s own statements of a present existing state of mind, when made in a natural manner and under circumstances dispelling suspicion and containing no suggestion of sinister motives, only reflect the mental state, and therefore are competent to prove the condition of the mind, or, in other words, the plan or design.”

The decision added:

“The declaration of Edna Morgan was made in a perfectly natural manner, and there is nowhere in the record any intimation that it was made otherwise. The whereabouts of Edna Morgan was a material issue. It was important to know what she did and where she went. The state contended that she met the defendant and accompanied him to the B earner barn. Evidence of her declaration was competent to show what was in her mind, and that what she intended to do was probably done: State v. Mortensen, 26 Utah, 312 (73 Pac. 562, 633). The language used by her was only one way of stating that she intended to meet Roy Farnam, * *

McKinnon v. Chenoweth, 176 Or 74, 155 P2d 944, was based upon charges that the defendant had alienated the affections of plaintiff’s wife. It held admissible a declaration made by the wife during the crucial period that she was on her way to a hotel to see a friend. The defendant at that time was registered at that hotel, and the plaintiff claimed that a clandestine meeting was planned. The declarant (wife) was living when the testimony was presented. The decision cited Stale v. Farnam, supra, and Wigmore on Evidence, 3d Ed, § 1725. The latter mentions with approval the Farnam decision, and the pocket part refers approvingly to the McKinnon opinion. Wigmore (§1725) declares:

“# * * as a condition of mind, the plan or design, may also, it is clear, be evidenced under the present Exception by the person’s own statements as to its existence.”

The text explains:

“The use of such statements of design or plan is illustrated in a variety of precedents.”

and adds:

“In most of the precedents, the issue involves the conduct of a victim of a crime, or of an insured person, or of a sufferer from an injury. But the principle has no narrow limitations; for example, 3Í5 Í ?

McCormick on Evidence, p 572, after setting forth an enlightening analysis of the rule, says:

“* * * Nevertheless, the modern cases and texts leave no room to doubt the statement that the accepted principle today is that evidence of declarations of a plan, design or intention presently entertained by the declarant is, subject to the usual limitations as to remoteness in time and apparent sincerity common to all declarations of mental state, admissible when offered as evidence that the design was carried out by acts or omissions of the declarant.”

The defendant depends upon Pratt v. State Industrial Accident Commission, 201 Or 658, 271 P2d 659, and Shepard v. Purvine, 196 Or 348, 248 P2d 352, to sustain a contention which it makes that the rule employed in the Farnam and McKinnon decisions was abrogated by OES 41.840, 41.850 and 41.900(4). The first of those sections, briefly stated, renders admissible the declaration of a deceased member of a family upon issues of pedigree. The first sentence of 41.850 renders admissible against a successor in interest the declarations against pecuniary interest made by his predecessor. The second sentence deems admissible self-serving declarations of a deceased if the proceeding is by or against an estate’s representative and if the party has appeared as a witness in his own behalf or has offered statements made by the deceased against his interest. The part of 41.900, upon which the defendant relies, renders admissible (a) the declaration of a deceased in respect to relationship, birth, marriage or death of any person related by blood or marriage to the decedent; (b) the declaration of a deceased against his interest in respect to his real property; and (c) the declaration of a dying person made under a sense of impending death concerning the cause of death. It is clear that none of those sections have any bearing upon the statements attributed to Bung that are under analysis.

All of the code sections which the defendant cited were a part of our laws in their present form when the Farnam and McKinnon decisions were written. The majority opinion in the Farnam case expressly referred to the section which is now ORS 41.900(4). The dissenting opinion quoted it. The majority opinion said:

“* * * The rule making the statement of Edna Morgan admissible does not contravene any section of the Code. If, as held by most courts, the res gestae doctrine is the basis of the rule admitting the declaration, then it is expressly sanctioned by the Code; or if the rule is founded on the idea that the utterance is a verbal act, a notion entertained by a few courts, then, strictly spealdng, the evidence is not hearsay; or if, as the writer thinks, the true theory of the rale is that the statement of the deceased is original evidence of her intention, which the jury can consider as a circumstance indicating that she probably did what she intended to do, then on that theory no section of the Code is transgressed.”

Shepard v. Purvine, supra, was based upon an averment that one C. M. Purvine, whose death preceded the filing of the suit, had granted the plaintiffs an easement to take water from a spring upon Purvine’s farm and transmit it by pipeline to the plaintiffs’ property. The defendants were the sole heirs at law of the deceased. They conceded that their father had granted the plaintiffs the privilege to take water, but claimed that the right granted was temporary only. In order to establish their contention, they presented declarations upon the subject which, they swore, the deceased had made. The purported declarations were received without objection. The decision described them as “obviously self-serving.” Even though received without objection, this court considered their admissibility, and in so doing stated:

“Testimony respecting declarations made during his lifetime by a deceased person is admissible •only in certain cases: * *

Following that statement, the decision summarized the several sections of our laws which are mentioned in a preceding paragraph. After the summary had been made, the decision continued:

“The testimony respecting the statements attributed to the deceased did not come within any of these exceptions to the hearsay rule.”

Since the declarations were received without objection, the decision considered them in the same manner as the other evidence.

Pratt v. State Industrial Accident Commission, supra, was an action by a widow, pursuant to the Workmen’s Compensation Act, to recover compensation benefits under averments that her husband lost his life through an accident arising out of and in the course of his employment. The circuit court held the evidence insufficient to prove the charge. Our decision found that the sole evidence, indicating that the deceased sustained injury by accident arising out of and in the course of employment, consisted of casual statements made by him that he was injured when a slab of stone fell upon his foot while he was engaged in his labors. In holding the declarations inadmissible, our decision, referring to Shepard v. Purvine, supra, said:

“* * * In the Shepard case this court, speaking through Mr. Justice Tooze, summarized in the following words the limited occasions and circumstances under which the declarations of a decedent are admissible.”

At that point the decision quoted from the Shepard opinion the part concerning the code sections which are now OES 41.840, 41.850 and 41.900(4).

As we have said, the defendant contends that the Pratt and Shepard decisions constitute holdings that the rule in the Parnam and the McKinnon decisions was abrogated by ORS 41.840, 41.850 and 41.900(4). It is apparent from one of the quotations which we made from the Parnam decision that the rule employed in it is embraced by the rules of evidence which were codified in this state in 1866. As to the codification, see Deady’s General Laws of Oregon (1845-1864), footnote p 315.

A reading of State v. Farnam indicates that before this court, adopted the rule that declarations of intent, design or plan made by one who, it is claimed, later carried Ms purpose into execution, it bestowed exhaustive attention upon the problem. Since that time, as is shown by the sections of Wigmore and McCormick to which we have referred, many decisions by other courts have employed the same rule. Clearly, the Shepard and Pratt pronouncements did not intend to overrule the Farnam and McKinnon decisions nor to discard the rule they employed. Possibly the Shepard and Pratt opinions were remiss in overlooking the fact that the rules governing the admissibility of a deceased’s declarations are broader than the sections of our laws wMeh they cited. We are satisfied that the rule employed in the Farnam and McKinnon decisions is sound and adhere to it. We conclude that the trial judge did not err when he overruled the aforementioned objections made by the defendant. We add that the evidence indicates that the declarations were made in a natural manner and that no one claims they were attended by suspicious or discrediting circumstances.

The seventh and eighth assignments of error are dismissed for lack of merit.

We now consider the ninth assignment of error. It challenges rulings which permitted the plaintiff to read to the jury testimony wMeh was given December 13, 1954, by the aforementioned Lawrence C. Huber before an assistant commissioner of the Industrial Accident Commission wMle that agency was considering the plaintiff’s claim. The hearing was conducted pursuant to ORS 656.282, which empowers the commission to “hear and determine all questions within its jurisdiction.” The record terms the hearing a “rehearing” but we will refer to it as a hearing. When Huber testified before the assistant commissioner he was under oath. He was first examined by plaintiff’s counsel and was then cross-examined by the assistant commissioner. An employee of the commission, who identified herself as “hearing reporter,” made a shorthand record of the testimony and later transcribed it. In the circuit court, counsel for the defendant, in referring to the transcribed testimony, said: “I agree to stipulate with Mr. Richards that this was the true transcript of the testimony.” The record shows that Mr. Huber was in British Columbia and, therefore, outside this jurisdiction at the time of the trial. The only parts of Mr. Huber’s testimony which the plaintiff did not offer to read were those which she assumed were vulnerable to valid objections. The defendant made no request that they be read.

ORS 41.900 provides:

“Evidence may be given of the following facts: &

“(8) The testimony of a witness, deceased, or out of the state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter.”

The defendant challenged the ruling which permitted the plaintiff to read Mr. Huber’s testimony by objecting: (1) “No foundation laid here to this being in the form of a deposition. There is no foundation laid here that the reporter taking these reports was an official court reporter”; (2) “The defendant objects to the introduction of this testimony at this time as not being in compliance with the provisions of ORS 41.900, subsection 8, as the rehearing not qualifying as a proceeding as intended by the statute.”

Other objections were voiced in the circuit court, but we do not interpret the assignment of error under consideration as submitting them.

The defendant’s first attack upon the testimony which Huber gave before the assistant commissioner points out that it is not “in the form of a deposition”, and adds that it was not certified by “an official court reporter.”

The plaintiff makes no claim that the testimony given by Huber before the assistant commissioner, as transcribed by the “hearing reporter”, is a deposition. It was presented as former testimony under the provisions of OES 41.900(8). Former testimony, if it was given (a) “in a former action, suit or proceeding” and “between the same parties”; (b) by a witness who has since died, is “out of the state or unable to testify” may be used in a later trial. The admissibility in the later trial is not dependent upon whether or not a reporter, official or otherwise, attended the former proceeding. McCormick on Evidence, § 237 ; 31 CJS, Evidence, §401, p 1208; 20 Am Jur, Evidence, §710, p 595. However, OES 8.360 offers a simple means of proving former testimony if it was reported by an official reporter.

The defendant next contends that the hearing which the Industrial Accident Commission conducted through its assistant commissioner December 13, 1954, was not a “proceeding” within the contemplation of OES 41.900(8). The extensive use of administrative agencies, such as the Industrial Accident' Commission, as quasi-judicial bodies is an important feature today in the administration of justice. Generally, the courts attach to the findings of such agencies the effect of a verdict by a jury, but OES 656.288 requires that appeals to the circuit court from the orders of the defendant shall be tried de novo.

The word “proceeding” which occurs in OES 41.900(8) has a broad ambit, and its meaning in any-given situation in which it was employed must be determined “according to the context and the subject to which it relates.” Fish v. Bishop, 176 Or 210, 156 P2d 204. McCormick on Evidence, § 235, says:

“If the accepted requirements of the administration of the oath, adequate opportunity to cross-examine on substantially the same issue, and present unavailability of the witness, are satisfied then the character of the tribunal whether judicial, legislative, or administrative, and the form of the proceedings are immaterial, and the former testimony should be received. Accordingly, when these conditions are met, testimony taken before arbitrators, or before a committing magistrate at a preliminary hearing, or in a sworn examination before the Comptroller by the Corporation Counsel of a person asserting a claim against a city, has been held admissible.” •

See, to like effect, Wigmore on Evidence, 3d Ed, § 1373.

The following is taken from 31 C JS, Evidence, § 386, p 1192:

“The fact that the evidence was originally given before a subordinate court is not usually regarded as an objection to its reception. Testimony given before referees, quasi judicial tribunals, and magistrates as arbitrators has been received.”

Federal Rubber Co. v. Industrial Commission, 185 Wis 299, 201 NW 261, 40 ALE 491, ruled:

u * * # enforcement of a claim under the Workmen’s Compensation Act is certainly a proceeding coming well within the title of chapter 330, relating to limitations of actions.”

Industrial Commission of Ohio v. Glide, 49 Ohio App 415, 197 NE 372, stated:

“The sole question presented by the proceeding in error involves the admissibility of the testimony of a deceased witness, who testified at the initial hearing before a referee appointed by the Industrial Commission.”

The testimony of the witness was offered by the plaintiff and, over the objection of the appellant, was admitted. Without the evidence there would have been no proof of the cause of the injury. In holding that no error was committed when the trial judge received the testimony, the court ruled: “The referee acts in a dual capacity as a pseudo judge and as a representative of the Commission.”

The following is taken from Heil v. Big Horn Construction Co., 65 Wyo 175, 197 P2d 692:

“Does an application for compensation under the Workmen’s Compensation law of Wyoming result in a pending ‘proceeding’ within the provisions of Section 16-404 supra? We are inclined to affirm that it does. We are not without authority on the point. In Industrial Commission of Ohio vs. Vail, 110 Oh. St. 304, 143 N.E. 716, the Supreme Court of Ohio decided that:

“ ‘An application for compensation under the Workmen’s Compensation Law (Gen. Codé, §§ 1465-37 to 1465-108) filed with the Industrial Commission of Ohio prior to August 16, 1921, the date the amendment to section 1465-90, General Code, became effective, is a proceeding, within the provisions of section 26, General Code, which ripens into an action upon an appeal from a denial of such claim by the Industrial Commission, and the amendment is not applicable in the trial of such action.’ ”

We think that the authorities of which we took note correctly interpreted the meaning of the word “proeeeding” and that the latter as it occurs in ORS 41.900(8) includes a hearing conducted by a quasi judicial officer, provided he had jurisdiction over the subject matter of the hearing and provided further that, pursuant to authority vested in him, he permitted adequate cross-examination.

We conclude that the ninth assignment of error discloses no merit.

The tenth, eleventh, twelfth, thirteenth and seventeenth assignments of error are not accompanied with any argument or citation to authority. We considered each of them but found no merit. We deem it unnecessary to set forth a statement of our reasons. We dismiss them as lacking in merit.

The fourteenth assignment of error is based upon a contention that the trial judge should have given to the jury the following requested instruction: “The State Industrial Accident Commission is not in any sense a party adverse to plaintiff. The fund in its hands for disbursement is a trust fund and it must be disbursed only according to law.” None of the state’s agencies is “a party adverse” to anyone who enters its office on agency business, but we do not believe that the jury would have been better equipped to decide the issues submitted to it had the requested instruction been given. We dismiss this assignment of error as lacking in merit.

The fifteenth assignment of error is based upon an instruction which was given to the jury. It is challenged by the following exception: “* * # it was a clear comment on the evidence by the Court.” We think the exception lacks merit.

The sixteenth assignment of error, likewise, is based upon an instruction given to the jury. The exception to it was expressed in these words: “The instruction was completely irrelevant and highly prejudicial.” We do not believe that the exception was warranted. We dismiss the fifteenth and sixteenth assignments of error as lacking in merit.

The first assignment of error is based upon a ruling which denied the defendant’s motion for an order of involuntary nonsuit; the second upon a ruling which denied an order for a directed verdict; and the third complains because the court declined to enter judgment in favor of the defendant notwithstanding the verdict.

In preceding paragraphs we set forth a review of the evidence. The motions to which we have just referred were based in part upon contentions that (1) Lyle King was an employer and not an employee; (2) the record contains no proof that King was endeavoring at the time of his death to cross the bay to the place where the incomplete log boom was moored; and (3) if King was heading for the log boom, his drowning would not entitle the plaintiff to compensation.

Without again analyzing the testimony, we express our belief that it warranted a finding that the construction of the log boom was performed by King as an employee and that at the time of his death he was on his way to resume work upon that object. The defendant, it is conceded, awarded compensation for the death of Bang’s son, his brother, and his son-in-law, all three of whom were in the same small boat that King occupied when death struck. Those three individuals were embarked upon the same journey as King, and there is no reason for believing that their objective was different from his. The award of compensation for the death of those three men constituted the holding by the commission that they lost their lives in an accident which arose out of and in the course of their employment. The holding was justified by authorities, sneh as Horovitz, Current Trends in Workmen’s Compensation, p 671; 1 Larson, Workmen’s Compensation Law, § 15.11; Cudahy Packing Co. v. Parramore, 263 US 418, 68 L Ed 366, 44 S Ct 153, 30 ALE 532; Lamm v. Silver Falls Timber Co., 133 Or 468, 277 P 91, 286 P 527, 291 P 375; Kowcun v. Bybee, 182 Or 271, 186 P2d 790; and Freire v. Matson Navigation Co., 19 Cal 2d 8, 118 P2d 809. We conclude that this assignment of error lacks merit.

The above disposes of all assignments of error. We have not mentioned herein some of the numerous authorities cited by the parties, but all received careful attention.

Since we have found no error, the judgment of the circuit court is affirmed.