Clark v. U. S. Plywood , 288 Or. 255 ( 1980 )

HOLMAN, J.,

concurring.

It is my conclusion that the rule of implied authorization set forth in the majority opinion is nothing more than the reverse side of the coin of Professor Larson’s rule of implied prohibition and that, in truth, the two rules are the same. I prefer the positive way of stating the rule used in the opinion, rather than Professor Larson’s negative way of stating it, but that does not make the rule any different. Indicative of the identity of the rules is that the proof used to prove claimant’s case would be identical in each instance. The plaintiff would prove that it was usual for workmen to do as the injured person did at the time of his injury, that the circumstances were such that the activity must have been known to management, and that there was no order prohibiting it. The plaintiff could also prove that related or similar activities were engaged in, were probably known to management and were not prohibited. The proof would be the same and would be subjected to the same evaluation regardless of whether the rule is stated in a positive or negative manner.