Jennings v. State Industrial Accident Commission

227 P.2d 829, 190 Or. 557, 1951 Ore. LEXIS 182
CourtOregon Supreme Court
DecidedFebruary 14, 1951
StatusPublished
Cited by3 cases

This text of 227 P.2d 829 (Jennings v. State Industrial Accident Commission) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jennings v. State Industrial Accident Commission, 227 P.2d 829, 190 Or. 557, 1951 Ore. LEXIS 182 (Or. 1951).

Opinion

LATOURETTE, J.

This is an appeal by plaintiff from a judgment entered against him after defendant’s general demurrer to the complaint had been sustained and plaintiff had refused to further plead. The facts are as follows:

Plaintiff was employed by the owner and operator of a Ferris wheel, which, at the time in question, was being assembled preparatory to its actual operation. When plaintiff was injured, he was running the gasoline engine which turned the gypsy spool, which, in [559]*559turn, lifted parts of the Ferris wheel into place, and while he was thus employed, his arm was caught up and around the gypsy spool by a rope, severely injuring him. The employer had never notified the accident commission of engaging in a hazardous occupation, nor had he rejected the compensation law when the accident occurred. Plaintiff filed his claim for compensation with the accident commission, but the claim was refused.

Plaintiff’s first assignment of error follows:

“The Court erred in sustaining the defendant-respondent’s demurrer to the plaintiff-appellant’s complaint and in entering judgment based upon said order dismissing the action. The demurrer was based on the ground that the complaint did not state facts sufficient to constitute a cause of action.”

To determine whether or not plaintiff is entitled to recover compensation in this case, we must look to § 102-1725, O. C. L. A., which, in part, is as follows:

“If an employer is engaged in any of the occupations defined by this act as hazardous, the workmen employed by him in such occupations are deemed to be employed in a hazardous occupation but not otherwise. The hazardous occupations to which this act is applicable are as follows:
“ •( a) When power-driven machinery is used, the operation of printing, electrotyping, engraving, photoengraving, lithographing or stereotyping plants, laundries, irrigation works, grain warehouses, factories, mills or workshops; * * * ”;

and also to § 102-1702, O. C. L. A., a portion of which follows:

“ ‘Workshop’ means any plant, yard, premises, room or place wherein power-driven machinery is employed and manual labor is exercised by way of [560]*560trade for gain or otherwise in or incidental to the process of making, altering, repairing, printing or ornamenting, finishing or adapting for sale or otherwise any article or part of any article, machine or thing, over which plant, yard, premises, room or place the employer of the person worldng therein has control.”

The bone of contention beween the parties is whether or not at the time and place in question plaintiff was working in a “workshop” within the meaning of the above definition.

From the complaint, it is gleaned that plaintiff, when the accident occurred, was working in a place over which his employer had control and where power-driven machinery was employed. Both the employer and the employee were engaged in a trade for gain or otherwise. Webster’s dictionary defines “trade” as “The business one practices or the work in which one engages regularly; one’s calling; occupation; gainful employment; means of livelihood.”

The debatable question seems to be whether or not plaintiff was operating the gasoline engine in the “process of adapting for sale or otherwise” a Ferris wheel which he was attempting to set up. The accident commission in its brief defines “adapt” as meaning to “ ‘change, adjust, alter, make fit, make suitable.’ ” We agree that this is the usual conception of the word “adapt.” The operation in which plaintiff was injured involved the assembling of the ferris wheel by means of the engine then being operated by plaintiff. Unless the Ferris wheel was assembled into position by the means employed by plaintiff, there could have been no operation of the Ferris wheel in the business in which his employer was engaged. It, therefore, seems clear to the court that when plaintiff was operating the en[561]*561gine for the purposes hereinbefore delineated, he was making the Perris wheel fit and suitable for its operation in the furtherance of his employer’s business.

The next query is whether or not the plaintiff was adapting or assembling the Perris wheel “for sale or otherwise. ’ ’ Since there is no doubt that the employer was not having the Perris wheel erected so it could be sold, we must look to the meaning of the word “otherwise.” Since the term “sale” has a limited meaning, there is nothing else that might be deemed of a ldndred or similar nature; therefore, the rule of ejusdem generis does not apply. Fisher et al. v. City of Astoria, 126 Or. 268, 269 P. 853. “Otherwise” is a broad and comprehensive word and has many and varied meanings. In Kennedy v. New York Life Ins. Co., 178 Miss. 258, 172 So. 743, 745, we find the following:

“ ‘Otherwise’ is a compound word formed by adding the suffix ‘wise’ to the word ‘other,’ and the word ‘wise’ when used as an adverbial suffix denotes way, manner, respect,’ Webster’s New International Dictionary (2d Ed.); consequently, the word ‘otherwise’ means ‘in a different manner; in another way; or in other ways; eontrarily.’ ” See also 30 Words and Phrases, 497, et seq.

Construing the statute liberally, we believe that the legislature intended by the use of the words “for sale or otherwise,” to mean that, all other elements being present, an employee who was in the process of adapting an article or thing on which he was working for sale or not for sale, or for any purpose, should be covered by the Workmen’s Compensation Act.

So far as we are able to discover, only two cases in Oregon have discussed the matter of “workshop” in compensation cases, and they are Eckhardt v. Jones’ [562]*562Market, 105 Or. 204, 209 P. 470, and Hoffman v. Broadway Hazelwood, 139 Or. 519, 10 P. (2d) 349, 11 P. (2d) 814. But see McLean v. State Industrial Accident Commission, 189 Or. 405, 221 P. (2d) 566, 573.

In the Eckhardt case, the plaintiff was employed in a meat market where power-driven machinery was used in making sausage. The greater part of plaintiff’s duties was performed about and upon the sausage machinery and in the room where it was operated, the work in whieh plaintiff was engaged at the time of the accident being only occasional. When the accident occurred, plaintiff was not working in or about the machinery but was handling hams when a sharp bone projecting from one of the hams pierced his hand, causing blood poisoning. This court held that plaintiff was engaged in a hazardous occupation under the act. “Workshop” was not discussed, although it was mentioned in our opinion, but it is evident from reading the opinion that the court considered the place where plaintiff was working a “workshop.”

In the Hoffman case, plaintiff slipped on a greasy floor while going about her duties baking “biscuits, graham gems and potatoes.” There was a small electric silver polisher in the room where she was working and a machine used for the purpose of making sausage in the basement. Plaintiff in her work was never obliged to come in contact with the sausage machine. We said: “* * * In our opinion, this restaurant and confectionery business owned by defendant was not a ‘workshop’ within the meaning of the acl nor was plaintiff engaged in a hazardous employment.”

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Related

McLaughlin v. Wilson
449 P.3d 492 (Oregon Supreme Court, 2019)
Shaw v. State Industrial Accident Commission
254 P.2d 207 (Oregon Supreme Court, 1953)
Alber v. State Industrial Accident Commission
230 P.2d 548 (Oregon Supreme Court, 1951)

Cite This Page — Counsel Stack

Bluebook (online)
227 P.2d 829, 190 Or. 557, 1951 Ore. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennings-v-state-industrial-accident-commission-or-1951.