Warner v. Synnes

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] REVERSED. In his complaint against the West Oregon Lumber Company, a corporation, and one Severin Synnes, the plaintiff alleges and it is admitted that the defendant Synnes was employed by the company as a contractor to furnish the necessary labor to do repairing, construction and alteration work about the company's manufacturing plant, including the construction of a dock mentioned in the complaint. Averring that on January 24, 1922, he was employed by Synnes to work in repairing the docks of the company located on the Willamette River near Linnton, Oregon, the plaintiff says that he was working on a scaffold about twenty-five feet above the water; that it was resting on a piece of lumber, which was in turn held up and suspended by a rope attached to the piling and that on that day, while engaged in that work, the rope parted and broke, as a result of which the plaintiff fell into the river and sustained certain injuries described. After describing his hurts and averring damages, the complaint alleges in substance that the rope which broke was furnished by the company; that it directed the plaintiff to do the dock work and directed him and his fellow-employees what work to do and how it should be done. That Synnes instructed the plaintiff and his fellow-employees to do the repair work following the instructions of the company, using the material furnished by it, and that the company was engaged in and had charge of the construction and the repair of the dock, furnished all the material, appliances, equipment and tools used therein, and that the defendant Synnes instructed the plaintiff to use the material, appliances, equipment and tools furnished by the defendant lumber company,

"and plaintiff was working on said dock and repairing the same as an employee and under a contract with defendant Severin Synnes at a daily wage, the said defendant Severin Synnes having employed him to do the repair work at said dock."

The concluding paragraph of the complaint is as follows:

"That defendants and each of them were negligent herein in not furnishing the plaintiff a safe place to work and in requiring and allowing the use of an improper and unsuitable rope in the construction of said scaffold, and in failing to use every device and precaution for the protection of plaintiff, and in failing to test the material furnished in building the scaffold."

After denying some material allegations of the complaint, the defendant company averred in substance that Synnes was an independent contractor in charge of the work, and that the defendant company had nothing to do with the means and methods employed in accomplishing the general result of the construction for which it had contracted. It also charged that the plaintiff was directly in charge of the work in which he was engaged, and that the accident which happened to him was the direct result of his own carelessness in the manner alleged in the complaint. The defendant Synnes filed an answer on his own behalf, which it is not material to consider because he has not appealed. The cause having been put at issue by a reply traversing the answer of the company, a trial was had resulting in a judgment for the plaintiff, from which the company has appealed.

The principal question for determination is whether the defendant Synnes was a contractor so as to relieve the defendant company from the responsibility of providing the plaintiff a safe place to work. The complaint itself directly avers that Synnes was a contractor in the performance of the work in which the plaintiff was engaged when he was hurt. It is true that the complaint elsewhere says that the company was engaged in and had charge of the construction and repair of said dock. Construing the pleading of the plaintiff most strongly against himself, we might well say that after having alleged that Synnes was a contractor by whom the plaintiff was employed to do the work in question, the averment that the company had charge of the construction would be sham.

However that may be, there is no testimony to support the charge that the company was engaged in and had charge of the repair of the dock. It is true that it furnished all the lumber and nails requisite for the purpose. There is testimony to the effect that one of its own employees had been engaged in the work, but that the company had withdrawn him from that employment, and through the foreman of the defendant Synnes, the plaintiff was directed as the employee of Synnes to proceed with the work. There is no testimony whatever to indicate that any person connected with the company undertook to direct or control him in the duty or manner in which he should perform the labor. It is said in the complaint that the company furnished the rope which parted, but there is no testimony whatever to indicate that the company or any of its employees knew that the rope was to be used or was used by the plaintiff in the work. The record is utterly devoid of any indication that the company, or any of its agents or servants, designated the rope in question for use on the job. The testimony is to the effect that the piece of lumber 2x6 inches in dimension had been securely nailed to a pile in the dock when the plaintiff, despite the warning of his fellow-workmen, took a piece of rope lying in the roadway on the dock, the strands of which had apparently been used by teamsters in tying bundles of boards, and himself tied the rope to the pile and also around the 2x6, and then with his maul knocked the piece loose, after which he stepped down upon it and a knot in the rope came untied on account of which he was precipitated to the water. No agent or employee of the defendant company assumed any direction of his methods of carrying on the work. So far as appears in the testimony, he was the master of his own actions, and the company was only concerned in the result to be attained. It is averred in the complaint as stated that he was the employee of the contractor and it was agreed throughout the testimony in several instances that he was not in the employ or service of the company. At the close of all the testimony on the part of the plaintiff, the defendant moved for a judgment of nonsuit on the ground that a case had not been proven by the testimony sufficiently to be submitted to the jury, which motion was denied.

It is well settled in this jurisdiction that where the work is in charge of a contractor and the party with whom he contracts is concerned only in the general result of the work and has no control of the details and manner in which the work shall be accomplished the contractor alone is responsible to the person in his employ who is injured during the progress of the work. The language of the Employer's Liability Law is that

"generally, all owners, contractors, or subcontractors, and other person having charge of, or responsible for any work involving a risk or danger to the employees or the public,"

shall use care and precaution for the protection and safety of life and limb. The reason for making the contractor alone responsible and exonerating the owner with whom he contracts is that the owner is not the person in charge of the work and so is not responsible for the injury complained of: Lawton v.Morgan, Fliedner Boyce, 66 Or. 9 (131 P. 314, 134 P. 1037); Tamm v. Sauset, 67 Or. 292 (135 P. 868, L.R.A. 1917D, 988); Woodard v. A.F. Coats Lumber Co., 97 Or. 302 (191 P. 668); McCauley v. Steamship Willamette, 109 Or. 131 (215 P. 892).

Of course, the company, in the general nature of things, would be required to direct what it wanted done in the way of repairs, else there could be no subject matter of a contract with the contractor. The mere retention by the owner of the right to inspect work as it progressed for the purpose of determining whether it was completed according to plans and specifications does not operate to create the relation of master and servant between the owner and those engaged on such work; PioneerFireproof Construction Co. v. Hansen, 176 Ill. 100 (52 N.E. 17); Foster v. Cityof Chicago, 197 Ill. 264 (64 N.E. 322).

Other errors are assigned, but they are immaterial in the light of the pleaded character of Synnes as a contractor and the attendant effect of that admission.

The judgment is reversed, with direction to enter a judgment of involuntary nonsuit in favor of the defendant, West Oregon Lumber Company.

REVERSED, WITH DIRECTIONS.

McBRIDE, C.J., and BROWN and COSHOW, JJ., concur.