Lamm v. Silver Falls Tbr. Co. , 133 Or. 468 ( 1929 )

The plaintiff has filed a petition for rehearing. For a statement of the facts involved in this case and the law applicable thereto, see the original opinion, wherein the judgment of the lower court was affirmed and the plaintiff was awarded damages arising out of personal injuries sustained by him while a passenger, by invitation, upon a logging train of the defendant. Upon argument on rehearing, an opinion was rendered setting aside the original opinion, four of the seven members of the court voting for a reversal of the former decision, and the three remaining justices dissenting.

In his opinion, written for the purpose of denying the plaintiff's petition for a rehearing, Mr. Justice ROSSMAN, after discussing the effect of the majority opinion which overruled the original opinion herein, says:

"Our decision * * * held that his (plaintiff's) redress must come from the industrial accident fund."

This holding is without merit. The plaintiff has no claim upon the industrial accident fund, nor has he filed any claim under the provisions of the Workmen's Compensation Law. See Lough v.State Industrial Acc. Com., 104 Or. 313 (207 P. 354), where this court held:

"Under section 6632, subdivision `d,' Or. L., providing that no claim for workmen's compensation shall be valid or enforceable `unless filed within three months after the date upon which the injury occurred,' the claimant, who by the injury for which he seeks compensation was rendered mentally incapable of filing such claim until after such time had elapsed, cannot recover, as the statute, having created the right of recovery, does not merely limit the remedy, and, being general, allows of no exceptions." Syl., par. 3.

In our consideration of this petition for a rehearing, it is not proper to approach a discussion of the matter involved as advocates of a former holding, but rather is it our duty to take the question assigned under careful, deliberate, candid consideration, with the intent to comprehend and administer the law as it exists. If the result of our deliberations be at variance with our former views, it becomes our further duty promptly and frankly to correct any errors found therein. We are here, not as lawmakers, but to administer justice as established by law.

At the argument it was urged upon us by the defendant that the case of Wadnec v. Clemons Logging Co., 146 Wash. 469 (263 P. 592), was directly in point, and was, in fact, the only parallel case. The fallacy of this argument is at once apparent. As we have heretofore written, that case is not in point upon the question involved herein, for the reason that it was based upon the statute of Washington, which, so far as material here, was essentially different from our own. For a complete discussion of the Wadnec case, see the interesting case of Hama Hama LoggingCo. v. Department of Labor and Industries (Wash.), 288 P. 655, where the distinction is drawn between the law defining the term "workman" under the workmen's compensation act of Washington as it existed at the time of Wadnec's injury and the present law of the state of Washington, which reads:

"Each workman who shall be injured in the course of his employment * * * shall receive out of the accident fund compensation in accordance with the following schedule": § 4, c. 310, p. 834, Laws of 1927.

The facts in the case of Hama Hama Logging Co. v. Departmentof Labor and Industries, supra, are stated by the Supreme Court of Washington in the following language:

"Spears was not engaged in furthering the interests of his employer at the time he received his injuries. Those injuries were sustained on an occasion when time was his own. He was making the trip from the camp on his own time and for his own personal business or pleasure. He was not working. No one had any supervision over him. He was not receiving pay from his employer on the day he was injured."

These facts are identical with the facts in the cause before us.

The Washington court then continues with the following observation, which, for the reason that it is so clearly applicable to the facts in the case before this court, we quote at length:

"It is argued that, had Spears lived at Eldon and had been transported daily to and from his work in the woods over his employer's railroad, there being no other way of reaching his work, such transportation would have been incident to his employment. The facts of this case do not present that question. Spears did not live at Eldon. His home, to all intents and purposes, was at the camp. Had Spears lived at Eldon and as a part of his contract of employment the logging company supplied transportation for Spears from his home to his work and back to his home each day, the rule (with which we do not disagree) enunciated in Swanson v. Latham, 92 Conn. 87 (101 A. 492), would apply. That is, where as a part of a contract of employment the employer supplies a conveyance for the transportation of the employee from his home to his work and back to his home each day, the work begins when the employee boards the conveyance and continues during the trip and during the work and on the return trip. Under such a special contract if an injury occur during the transportation, the injury occurs within the period of the employment, at a place where the employee has a right to be, and while he is doing something incidental to his employment, because contemplated by it. `An injury received by an employee while riding, pursuant to his contract of employment, to or from his work in a conveyance furnished by his employer, is one which arises in the course of and out of the employment.' Swanson v.Latham, 92 Conn. 87 (101 A. 492, 494). The logging company merely permitted or authorized its employees to ride on the speeder free of charge, as a convenience to the employees, and not in the furtherance of its business. This is not a case wherein the employer has agreed to transport its employees to and from their work daily as a part of its contract with them. Here the employee sustained an injury while he was not performing any duty that he owed to his employer. The employer had no control over him whatsoever. The trip on which the employee had started was one of choice and was being made for personal reasons solely. The logging company's transportation facilities afforded opportunity to the employee to enjoy periods of rest outside of the camp. The speeder was available for the convenience of the employees when off duty. Transportation thereon was free to the employees. The contribution of the means whereby the employees could frequently seek diversions outside of the camp, though deemed in the nature of compensation paid by the employer to the employee, does not constitute employment. A trip for the purpose of pleasure was not in any sense employment.

"The language of the 1927 statute is free from ambiguity. There is no reason why that language should not be literally construed, as the language is plain, the meaning unmistakable. The purpose of the amendment (§ 2, c. 310, p. 515, Laws 1927) is as clear as language can express. When the 1927 statute is read in the light of the language of the prior act and our decisions thereunder, the legislative purpose is accentuated. The legislature intended that the protection under the Workmen's Compensation Act should be restricted to employees injured in the course of their employment; that presence on the premises of the employer at the time of the injury is not alone sufficient. It follows that an employee, injured at a time when he is doing something solely for his own benefit or accommodation, and not while engaged in or furthering his employer's business, is not injured `in the course of his employment.'"

Now note the following expression of the court in that case, and concurred in by eight of the nine justices, with reference to the majority opinion of this court in the case at issue:

"We have not overlooked Lamm v. Silver Falls Timber Co. (Or.), 286 P. 527, but are not inclined to follow the holding in that case for the reasons above stated."

The following Oregon cases are in point, and have never been overruled: Simmons v. Oregon R.R. Co., 41 Or. 151 (69 P. 440);Putnam v. Pacific Monthly Co., 68 Or. 36, 54 (130 P. 986, 136 P. 838, Ann. Cas. 1915C 256, 45 L.R.A. (N.S.) 338 L.R.A. 1915F, 782); Susznik v. Alger Logging Co., 76 Or. 189 (147 P. 922, Ann. Cas. 1917C, 700); Wells v. Clark Wilson Lumber Co.,114 Or. 297 (235 P. 283); Brady v. Oregon Lumber Co., 117 Or. 188 (243 P. 96, 118 Or. 15, 245 P. 732, 45 A.L.R. 812).

Joe C. Lamm, the plaintiff herein, possessed and pursued his common-law remedy. It was a legal remedy. He rightfully contends that at the time he sustained his personal injuries he was neither engaged in the furtherance of his employer's business, nor in doing something incidental thereto. He was a passenger by invitation, riding upon the defendant's logging train, and had naught to do in or about the operation of that train. The law provides the conditions under which the industrial accident fund shall be disbursed by way of compensation. When a workman as defined by statute, who is subject to the act "and in the service of an employer who is thus bound to contribute to the industrial accident fund, shall sustain a personal injury by accident arising out of and in the course of his employment caused by violent or external means," he shall be entitled to compensation. The record plainly shows that Lamm was hurt during his vacation period, and that the relation of employer and workman as defined by the act had been temporarily suspended during that period and had not been resumed. We believe, and courts have often observed, that, to the end that justice be established, the wholesome provisions of the Workmen's Compensation Act should be liberally construed. But we deny the right of any court to defeat a common-law action by expanding and enlarging upon the meaning of plain language by liberal construction or otherwise. That a crippled workman who possesses a legitimate claim for damages on account of injuries sustained should be thus defeated and sent out of court without a dollar is, to the writer, greatly to be regretted. Joe C. Lamm was a logger and engaged in that vocation by the defendant. However, at the time he sustained his injury, he not only was not engaged in logging, but he was ten or twenty miles distant from the woods where he performed services for the defendant when at his work.

For a further definition of the phrase "arising out of and in the course of his employment," see Hama Hama Logging Co. v.Department of Labor and Industries (Wash.), 288 P. 655; Lamm v.Silver Falls Timber Co., supra; Varrelman v. Flora LoggingCo., infra p. 541.

The petition for rehearing should prevail.

COSHOW, C.J., and BEAN, J., concur in this dissent.