McGuire v. Brown

342 P.2d 774, 217 Or. 300, 1959 Ore. LEXIS 376
CourtOregon Supreme Court
DecidedJuly 22, 1959
StatusPublished
Cited by4 cases

This text of 342 P.2d 774 (McGuire v. Brown) 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
McGuire v. Brown, 342 P.2d 774, 217 Or. 300, 1959 Ore. LEXIS 376 (Or. 1959).

Opinions

CRAWFORD, J.

(Pro Tempore).

Plaintiff sued defendant for damages due to personal injuries sustained through the alleged negligence of the defendant’s employee, Charles O. Dennis. At the time of the accident plaintiff was employed by the Umpqua Plywood Corporation as its timber department manager, and defendant was an independent logging contractor.

Defendant challenged plaintiff’s right to maintain a third party action, asserting plaintiff’s sole remedy was under the Workmen’s Compensation Law. ORS [302]*302656.154. Both Umpqua Plywood Corporation and defendant were operating under the compensation act and subject thereto. The trial judge, proceeding under ORS 656.324(3), decided the issue thus raised against the plaintiff, holding the action barred, and entered findings, conclusions and judgment in favor of defendant, from which plaintiff appeals. Plaintiff poses the following as the questions presented by this appeal: (1) Were the injured workmen, plaintiff McGuire, and the employee of the defendant who caused the injury, namely, Dennis, a faller, on the same “premises” within the meaning of the statute? (2) Did the two employers have joint supervision and control of the premises? (3) Were the two employers engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in operation?

“(1) If the injury to a workman is due to the negligence or wrong of a third person not in the same employ, the injured workman, or if death results from the injury, his widow, children or other dependents, as the case may be, may elect to seek a remedy against such third person. However, no action shall be brought against any such third person if he or his workman causing the injury was, at the time of the injury, on premises over which he had joint supervision and control with the employer of the injured workman and was an employer subject to ORS 656.002 to 656.590.
“(2) As used in this section, ‘premises’ means the place where the employer, or his workman causing the injury, and the employer of the injured workman, are engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in operation.” ORS 656.154.

Little difference of opinion exists as to either law [303]*303or fact. It is the application of the law to the facts that presents onr problem.

The facts are these: On April 20, 1954, Umpqna Plywood Corporation purchased timber from the United States Department of Agriculture Forest Service. This eighty-two-acre tract was known as the Clover Ridge sale. Umpqua was obligated to cut and remove all the timber by December 31, 1955. Umpqna contracted to construct, according to Forest Service specifications, a main access road into the sale area and to maintain and repair all roads constructed by it and used for log hauling or other purposes in the area. Maintenance and repairs to be done according to standard required by the Forest Supervisor. On June 10, 1954, Umpqua entered into a contract with defendant, by which defendant agreed to fall, buck, yard, load and deliver the logs produced from the Clover Ridge sale area to Umpqua’s millsites. The contract between Umpqua and the Forest Service was made a part of the contract between Umpqua and defendant. Umpqua agreed to construct the required main access road into the area and defendant agreed to keep it in repair and to construct all other roads necessary for proper logging at his own expense, and on completion of the logging contract to condition the road so as to be acceptable to the Forest Service. The contract between the United States and Umpqua located the main access road Umpqua had agreed to construct and which was to be completed in a manner satisfactory to the Forest Service Supervisor before timber could be removed thereover. A part of this main access road had been completed by Umpqua at the time of the execution of the contract with defendant. The construction continued thereafter.

In late 1954 Umpqua had begun construction of [304]*304the main access road, and in December 1954 defendant began his logging operations in the area. May 9, 1955, Umpqna was finishing the upper portion of the Clover Ridge main access road and was preparing the main access road for inspection by the Forest Service, preparatory to turning it over to defendant for his use. Both logging operations and road construction proceeded at the same time. The Umpqua-Forest Service contract required a dirt road, only, and Umpqua was under no obligation to defendant Brown to rock the road, though rock was required to stabilize for the winter use Brown intended to make of it. Brown was required to log continuously.

On May 9, 1955, McGuire and Brown entered the area to determine the suitability of rock which Brown proposed to use on the lower portion of the road; inspected it, and returned to the site where the road crew was working, and stopped to talk to Shelton, Umpqua’s foreman. While so conversing, a tree was felled by Charles 0. Dennis, a member of defendant’s falling and bucking crew, striking both plaintiff and defendant. The stump of this tree was about 125 feet from the road, and the tree itself was about 160 feet long. It fell across the roadway. McGuire was charged with the responsibility of seeing that Umpqua performed its contract with the Forest Service and had the duty “to supervise the logging operations, including the duty to see that the independent contractors are performing their work properly.” Two other employees of Umpqua worked in connection with defendant’s logging operation. A “peeler picker”, who marked and directed the destination of logs suitable for plywood manufacture, and a “bucker”, who saw to it that logs were bucked in conformity with the contracts to obtain the maximum number of “peeler [305]*305grade logs.” Operation “bucking” was subject to Umpqua’s direction in this respect. The work of the logging and road crews was co-ordinated to eliminate danger from blasting and falling trees. A safety zone was maintained between the two operations when they were carried on simultaneously. Dennis, at the time of the accident, was falling timber in the safety area, contrary to defendant’s practice and to Shelton’s orders.

Let us first consider the origin of contractual responsibilities arising from the two contracts; the one between Umpqua and the Forest Service, the other between Umpqua and Brown, which adopted and incorporated the first. We consider such portions of these contracts as are relevant to this particular matter.

The Forest Service sales agreement, entered into between Umpqua and the Forest Service, describes the timber and provides that:

“Period of Contract. — 3. * * * all timber shall be cut and removed and the requirements of this agreement satisfied on or before December 31, 1955.
“Logging. — 8. As far as may be deemed necessary for the protection of National Forests interests, the plan of logging operations on the sale area shall be approved by the Forest Supervisor or by the' officer to whom he may have delegated authority to give this approval.

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Cite This Page — Counsel Stack

Bluebook (online)
342 P.2d 774, 217 Or. 300, 1959 Ore. LEXIS 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcguire-v-brown-or-1959.