Varrelman v. Flora Logging Co. , 133 Or. 541 ( 1929 )

Former opinion and judgment of circuit court reversed on rehearing March 18, 1930 ON REHEARING (286 P. 541) In Banc. The material facts of this case are the same as those disposed of today in Lamm v. Silver Falls Timber Co. The statement of facts set forth therein is substantially sufficient to indicate the relationship between the plaintiff and the defendant; it seems desirable, however, to particularly notice the following: The plaintiff left defendant's camp Saturday, October 30, 1926, at 8 a.m., to go to Portland for the purpose of purchasing some shoes and clothing. Before beginning his trip he did not terminate his employment; no such thought was present in his mind nor in the defendant's. Upon the other hand he expected to resume work for the defendant Monday morning at 7:30 o'clock and the defendant entertained a like expectation; in fact he was injured in the near vicinity of the camp while upon his return. Plaintiff's brief cessation of labor was satisfactory to his employer; here it seems pertinent to mention that as a courtesy to the latter he performed an errand for it in Portland. The trip from camp to Carlton, which is the end of the logging railroad, is 27 miles in length. The plaintiff testified that practically no one uses this railroad, except the defendant and its employees, and that it constitutes the only means of ingress to and egress from the scene of defendant's operations. The ownership of the railroad was thus: from Carlton to Tillamook Gate it is owned by a corporation entitled Carlton Coast Railroad company; from Tillamook Gate to the camp it is owned by the defendant; both the latter and the Carlton Coast Railroad company are owned by the Carlton Consolidated Lumber company. The plaintiff's injuries befell him upon the portion owned by defendant. Before undertaking his trip he purchased a ticket at a cost of 60 cents, which was issued by the Carlton Coast Railroad company, and which provided that it entitled the purchaser to ride from Carlton to Tillamook Gate. After the conveyance upon which the plaintiff was riding had reached a point beyond Tillamook Gate it failed to operate, and a conveyance known as a speeder was sent by the defendant to convey the passengers to camp. Those aboard the disabled vehicle mounted the speeder and the journey was resumed. No new fare was charged, and as we have seen the plaintiff's ticket entitled him to a ride from Carlton to Tillamook Gate only. All the controversies presented by the above facts, except that arising out of the charge for transportation, are controlled by the disposition made of the similar facts in Lamm v. Silver Falls Timber Co. We believe that the charge for transportation does not demand a different result for the following reasons: (1) plaintiff's injury was sustained at a place beyond the point for which a fare was charged; hence, we may assume that this portion of his transportation was given as an incident of his employment; (2) the palintiff's trips back and forth were incidental to his employment and made necessary by it; they were undertaken upon a conveyance furnished by the employer and operated upon its premises. These circumstances are more favorable to the defendant than those present in American CoalMining Co. v. Crenshaw, 77 Ind. App. 644 (133 N.E. 394), andCentral Const. Co. v. Harrison, 137 Md. 256 (112 A. 627). In each of those cases it was held that since the journeys upon the conveyance were incidental to the employment and were undertaken upon a vehicle provided by the employer, the payment of a fare was an immaterial fact. The same conclusion, we believe, is justified by the circumstances before us.

It follows that our previous decision was in error, that the judgment below should be reversed, and that the plaintiff's action should be dismissed.

BELT, J., McBRIDE and RAND, JJ., concur.

Second petition for rehearing denied September 9, 1930 ON PETITION FOR REHEARING (290 P. 751) [Based upon the written opinion denying the petition for rehearing in the companion case of Lamm v. Silver Falls Timber Company, an oral order issued denying the petition in the instant case. To the oral order denying the petition for rehearing Mr. Justice BROWN dissents in the following language.]