Thompson v. Union Fishermen's Co-Op. Packing Co.

246 P. 733, 235 P. 694, 118 Or. 436, 1925 Ore. LEXIS 174

• Court: Oregon Supreme Court
• Decided: February 11, 1925
• Status: Published

Opinions

RAND, J.

This action was brought by plaintiff as administratrix of the estate of Olga Thompson, her deceased daughter, an employee of the defendant, who was killed on August 23, 1920, while on a freight elevator in a cannery owned and operated by the defendant corporation at Astoria.

The complaint alleges that decedent’s death was caused by the negligence of the defendant. It alleges that in the conduct of its business the defendant used an elevator which was operated by means of motive power for carrying freight and employees between the different floors of its cannery; that the elevator was not inclosed by any cage or equipment commonly used for the protection of persons using the same, or with any system offsignals by which communication could be had between its employees and the person operating it without vocally calling from one floor to another, with which it is alleged it could have been equipped without affecting its efficiency and without unreasonable cost or expense; that plaintiff’s intestate at the time of her death was a minor child fifteen years of age, was wholly inexperienced in the use or operation of an elevator, and was employed by the defendant on or about August 16, 1920, to do general errand work in and about the cannery and had been at work but one week, and that it was her duty to carry boxes from one floor to another, to work on a lacquering machine, and generally to do and perform such duties as might be required of her, for which she was to be paid at the rate of three dollars per day; that her lack of skill and inexperience in the operation or control of an elevator were known, or by the exercise of due care upon the part of defendant, would have been known; that other children of about the same age as decedent were employed by the defendant and were permitted to operate the elevator while carrying on their work and while going from one floor to another, and that the use of the elevator by them had become a custom and usage known to the defendant and acquiesced in by it; that decedent had on different occasions operated the elevator with the knowledge of the defendant and with, its permission, and had never been instructed not to use the same; that defendant failed to employ a legally competent person to operate its elevator, and on the day of decedent’s death had placed the same in charge of one Thomas Nelson, Jr., the son of the manager of the defendant corporation and a boy less than fifteen years of age, in violation of the statute which forbids any person, firm or corporation to employ or permit any person under the age of eighteen years to operate an elevator, and makes the violation of the statute a misdemeanor punishable by fine or imprisonment, or both; that in the operation of the cannery the employees quit work at 12 o’clock noon for lunch and were required to resume work at 1 o’clock p. m., and that it was their duty to return to the cannery in time to resume work at 1 o’clock of each day; that on the day when decedent was killed she had returned to the cannery a few minutes before 1 o’clock and there found Thomas Nelson, Jr., in charge.of the elevator; that he invited and requested her and another minor child to ride on the elevator with him, and in acceptance of his invitation they went on to the elevator and rode with him, — he operating the same; that said Nelson turned on the switch and brought the elevator to the third floor, where he left decedent and the other minor child on the elevator and went to inspect the machinery of the elevator while the same was in motion without directing them to step off of the elevator or warning them of the dangers incident to their remaining thereon; that he requested them to bring the elevator to the place where he was and that at the same time someone on the g’round floor called for the elevator; that the elevator was started in motion while decedent and the other minor child were on it, and being confused by the call from below, in some manner unknown to plaintiff, plaintiff’s intestate was caught between the floor of the elevator and the ceiling of the third floor, causing the injuries which resulted in her death; that the defendant had knowledge of the fact that the elevator was of a dangerous character and liable to cause injury or death to its employees, and that the decedent was a minor child, inexperienced in the use of an elevator, and that its employees were in the habit of using the elevator, and thus knowing, failed and neglected to prohibit decedent from using the elevator or to caution her against the dangers thereof, and failed to make and publish rules in reference to the use of the elevator or forbidding its use by its minor employees, which acts, it is alleged, was the proximate cause of the injuries and death of the deceased.

It is further alleged that if the defendant had properly instructed the deceased how to use the elevator, or had not permitted her to operate it, or had published rules regarding the use of the elevator and forbidding its use by minors, or had forbidden the deceased to use the elevator or had employed a .person over the age of eighteen years to operate it, she would not have been on the elevator at the time of her death and consequently would not have been injured or killed.

The complaint also alleges that the defendant was negligent in that it had no rules posted in the cannery regulating the use of the elevator or forbidding its use, and that said failure was a proximate cause of the injuries and death of the deceased.

It is also alleged that Thomas Nelson, Jr., the boy who had been placed in charge of the elevator, was incapable of comprehending the dangers incident to the operation of an elevator by a child of the tender years and inexperience of the deceased, and did not realize or appreciate the danger of allowing the deceased to remain on or to operate the same.

The defendant admitted its corporate existence and denied all of the other allegations of the complaint, and by its answer alleged four affirmative defenses. The first is a plea of contributory negligence. By this defense the defendant averred that decedent was thoroughly familiar with the construction of the building where the elevator was installed and with the elevator and the manner in which the same was operated, and “during the term of her employment had many times seen the said elevator operated, and during the lunch hour, while not carrying out any of the duties of her employment, unbeknown to defendant, had many times secretly ridden thereon for her own pleasure and amusement, but that nevertheless, said Olga Thompson carelessly and negligently allowed her head or other part of her body to protrude or extend beyond the platform of said elevator, well knowing, or, by the exercise of reasonable care and diligence, capable of knowing and appreciating that by her allowing her head or other parts of her body to protrude or extend beyond the platform of said elevator, that her head or other parts of her body so protruding or extending, would or might come in contact with the floors or ceiling of said building as said elevator ascended or descended, and was liable to be caught by said automatically falling gate. That said Olga Thompson, in so failing to exercise reasonable care in the particulars as heretofore alleged, was guilty of contributory negligence, and said Olga Thompson’s said negligence contributed toward the receiving of her said injuries, resulting in her death, and was one of the concurrent, proximate causes thereof. ’ ’

In the second affirmative defense the defendant repeats the allegations of the first-affirmative defense as to the acquaintance of decedent with the elevator and the building, and alleges that decedent knew that the elevator was not used for the purpose of carrying employees from one floor to another, but was used exclusively by a few adult employees while raising or lowering heavy articles from one floor to another. It then alleges: ‘1 That, at the time said Olga Thompson received her said injuries, she was not carrying out any of the duties of her said employment, but was riding on said elevator for her own pleasure and amusement, and in play, and for the further purpose of gratifying the curiosity of one certain Thomas Nelson, Jr., a fellow-servant and the operator in charge of said elevator, and that, in doing so, said Olga Thompson assumed all of the risks, dangers and hazards incident to the construction of said building and said elevator, and the operation thereof.”

By its third defense defendant alleges that the elevator was of standard make and in good operating condition. It then repeats the allegation of decedent’s knowledge of its not being used to carry employees from one floor to another, and closes with the allegation that “the said Olga Thompson well knew that she had no right or authority to operate said elevator, or to use the same, and that the said elevator was not one of the places in which, or on which the said Olga Thompson was to work, or carry out or perform any of the duties of her employment. ’ ’

By its fourth defense it alleges that decedent and young Nelson were fellow-servants. Its allegations in that regard are as follows: “That on the particular day on which said Olga Thompson received the injuries culminating in her death, defendant herein had placed one certain Thomas Nelson, Jr., in charge of said elevator, and the said Thomas Nelson, Jr., assumed his duties of operating the same at about 8 o’clock in the morning of said day, and thereafter continuously operated the same whenever necessary. That said Olga Thompson well knew that the said elevator was placed in charge of said Thomas Nelson, Jr., and that the said Thomas Nelson, Jr., had full and complete charge and control thereof, and well knew, or by the exercise of ordinary care and diligence, should have known that she, the said Olga Thompson, had no right or authority to operate said elevator herself. That during all of said times, and particularly at the time said Olga Thompson met with the injuries finally culminating in her death, said Thomas Nelson, Jr., and said Olga Thompson were fellow-servants.”

The allegations of these affirmative defenses were put in issue by the reply, except that the reply contained the following- admissions as to the fourth affirmative defense: “Admits that on the particular day on which said Olga Thompson received the injuries culminating in her death, the defendant herein had placed one certain Thomas Nelson, Jr., in charge of said elevator, and that the said Thomas Nelson, Jr., assumed his duties of operating the same about 8 o’clock in the morning of said day, and continuously operated the same whenever necessary. Admits that the said Olga Thompson knew that said elevator was placed in charge of said Thomas Nelson, Jr.”

In part, the court instructed the jury as to the law of contributory negligence, and that to employ or allow a person under the age of eighteen years to run, operate, or have charge of, an elevator carrying other persons or property is a violation of the statutes of this state, and that a violation of the statute in that particular would constitute negligence as a matter of law and would render the defendant liable for the injuries complained of if the jury should find that the operation of the elevator by a minor under the age of eighteen years was the cause of the injuries which resulted in decedent’s death, and further find that the negligence of the decedent did not contribute to her injury. The court then instructed the jury over the objection and exception of the plaintiff as follows: “If you find from the evidence that Olga Thompson, while employed in said cannery, was under the age of eighteen years and that while so employed, she was permitted by the agents of the defendant to go upon said elevator and operate it, or that she did so use the elevator without the express permission but with the knowledge of the agents of the defendant, then the defendant would be negligent in so permitting her to use the elevator and in the absence of negligence on her part proximately contributing to her injuries, if she was so injured, the defendant would be liable in damages for such injury.

“If, however, you find from the evidence that the said Olga Thompson was forbidden by the agents of the defendant to go upon or operate said elevator, or that she knew that she was not permitted to go upon the elevator, but that notwithstanding said orders and knowledge, she, without the knowledge of the agents of the defendant, clandestinely and secretly went into the elevator and operated it and thereby received the injuries complained of, then the defendant would not be liable to respond in damage for such injuries, and in that event, your verdict should be for the defendant. That is, if the deceased Olga Thompson, without the knowledge of any of the agents of the cannery defendant corporation who were in authority and had the right to represent the company were ignorant of the fact that she was in the elevator and attempted to operate it, then, of course, they could not be liable for negligence in her so doing, as that would not be their act, either by knowledge or permission. The only thing you would take into consideration in that connection would be the extent to .• which the agents of the defendant would be required to exercise control over the employees to protect them and prevent them from operating the elevator and to warn them and notify them what danger might result from their using the machine and forbidding them from using it.

“If you find from the evidence that the defendant had employed Thomas W. Nelson, Jr., and placed him in charge of the elevator, then he was an agent of the defendant for the operation and control of the elevator and knowledge by and notice to him of matters pertaining to the operation of the elevator would be the knowledge of and notice to the defendant as to such matters.”

The defendant had verdict in the court below and from the judgment entered on the verdict plaintiff appeals, relying upon nineteen assignments of error growing out of the instructions above set forth and certain other instructions which the plaintiff requested and the court refused to give. Plaintiff’s objection to the instructions above set forth is that they were not applicable to the facts of the case. Before considering these assignments it will be necessary to dispose of the contention urged by the defendant that the action should have been brought under the Em ployers’ Liability Act, and if considered as brought under that act that it does not state facts sufficient to constitute a cause of action. It will not be necessary, under the view which we take of the law of the case, to consider whether the complaint states a cause of action under the Employers’ Liability Act, since it does state a cause of action under Section 380, Or. L., and if this action can be maintained under that section defendant’s objection must be overruled.

Within the meaning of the terms “machinery” and “employee” as used in the Employers’ Liability Act, and under the facts alleged in the complaint, the elevator on which it is alleged that plaintiff’s intestate was killed was “machinery” not “operated by hand power” and not “provided with a system of communication by means of signals so that at all times there may be prompt and efficient communication between the employees or other persons and the operator of the motive power,” and plaintiff’s intestate was an “employee” of the defendant at the time she sustained the injuries complained of, and hence an action for her death might have been brought under that act. Defendant insists that where the facts alleged in the complaint bring the case within the application of the provisions of the Employers’ Liability Act, the remedy given by that act for the death of an employee is exclusive of all other statutory remedies, and for that reason it is urged this action which is brought under another statute cannot be maintained.

This action was brought under Section 380 to recover the damage resulting to the estate of the deceased from the death, of plaintiff’s intestate, which it is alleged was caused by the negligent acts of defendant’s agents, servants and employees. There are three statutes in our Code, which, before verdict, pro vide that an action for the death of a person resulting from a 'wrongful act or omission of another shall not abate by his death, viz., Sections 34, 380, and the Employers’ Liability Act. Section 34 provides that a father, or, in case of his death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of the child, and a guardian for the injury or death of his ward. Section 380 provides that where the death of a person is caused by the wrongful act or omission of another, an action may be maintained by the personal representative of the deceased to recover the damages resulting to his estate from the death of the deceased, if the deceased, had he lived, might have maintained an action for an injury done by the same act or omission, and limits the amount recoverable to a sum not exceeding $7,500 and directs that the amount recovered shall be administered as other personal property of the deceased person.

In determining whether the enforcement of the remedy provided by either Section 34 or Section 380 would be a bar to the enforcement of the remedy provided by the other section, this court, speaking through

Mr. Justice Wolverton in Schleiger v. Northern Terminal Co., 43 Or. 4 (72 Pac. 324), said:

“One gives the right of action to the father, mother, or guardian, as the case may be, for pecuniary loss of the minor child, and the other for such as the estate has sustained by his death. The one ends where the other begins. The estate could not be injured while the minor child would be supposed to continue in the service of the parent, and, upon the other hand, the parent could not be injured when the child is relieved of the duty of rendering service to him, or has attained the age of majority. It is not analogous that two actions should spring from the same wrongful act. Injuries of different nature to different persons may thus he inflicted, and actions may be prosecuted and damages given according to the nature of the right and principles involved.”

Under the Employers ’ Liability Act where the death of a person resulted from a failure to comply with the requirements of that act, Section 4 thereof, being Section 6788, Or. L., provides:

“If there shall be any loss of life by reason of the neglects or failures or violations of the provisions of this act by any owner, contractor, or sub-contractor, or any person liable under the provisions of this act, the widow of the person so killed, his lineal heirs or adopted children, or the husband, mother or father, as the case may be, shall have a right of action, without any limit as to the amount of damages which may be awarded; provided, that if none of the persons entitled to maintain such action reside within the state of Oregon, then the executor or administrator of such deceased person shall have a right to maintain such action for the respective benefit in the order above named.”

Where the death of a person coming within the embrace of the Employers’ Liability Act has resulted from a violation of the provisions of the act, it is clear from the language of the section just quoted that the right to maintain an action for the death resides in the persons named in the statute, and in them only in the order that they are there named, and that an action under the act to enforce the liability created by the act cannot be maintained by an executor or administrator of the deceased person, except in the case provided for by the statute, namely, where the particular person or persons who are entitled under the statute to maintain the action happen to reside out of the state, and then only for the benefit of such person or persons. If the widow of the deceased is living, she only can bring the action. If the deceased left no widow surviving him, but left lineal heirs or adopted children, then the action must be brought by them; while if the deceased was a married woman leaving a husband surviving her, the action must be brought by him, and if the deceased left no widow, lineal heirs, or adopted children, or husband, then the action must be brought by the mother of the deceased, and if she did not survive, then by the father. If none of such persons survive, then an action under the Employers’ Liability Act to enforce the particular liability created by the act cannot be maintained at all, for the statute authorizes no other persons to prosecute the action except those specifically named therein. This, however, does not mean that liability for the death of a person may not arise through a violation of the Employers’ Liability Act in a case where none of the parties named in that statute survive the deceased, nor that, in such case, an action to recover damages for the death cannot be maintained under Sections 34 or 380, or both. See Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 352 (173 Pac. 267, 175 Pac. 659, 176 Pac. 589).

It is obvious from the mere reading of the Employers’ Liability Act that the act creates both legal duties and legal liabilities, and that in case of death the employer is answerable for the damage resulting from his failure to observe the duty created by the act, whether the relatives named in the act survive or not. The duty to conform to the requirements of the act is absolute, and in no way depends upon the survival of relatives. Where this duty has not been discharged and death has resulted from the breach, the act confers upon the relatives named, and in the order named, if they survive, the right to recover, not for the benefit of the estate, but for their individual benefit, the damage sustained by the estate as well as all other damage resulting from the death. This remedy which is in the nature of a special and particular privilege is conferred only upon those persons who are named in the act. But, where none of the relatives named survive and the death of a party has resulted from a breach of a duty created by the act, the Employers’ Liability Act contains no prohibition against the commencement of an action under Section 380 by the personal representatives of the deceased to recover the damage resulting to the estate from his death, or, where the deceased was a child and both of its parents were dead, by the guardian under Section 34 to recover the damage sustained by the estate of the ward. Hence, where none of the relatives named in the statute survive, and death has resulted from a violation of a duty imposed by the Employers’ Liability Act, an action may be maintained to recover the damage resulting from the death for the benefit of the estate of the deceased by the personal representative of the deceased under Section 380, or, if the deceased was a child and his parents did not survive, then the guardian of the child also may sue under Section 34 to recover the damages sustained by the estate of the ward.

In the case at bar plaintiff’s intestate at the time of her death was only fifteen years, seven months and twenty-six days old. She was unmarried, had no lineal descendants, and her mother survived her. Since decedent was not married and had no lineal descendants and' left her mother surviving her, the surviving mother was the only person who could sue under the Employers’ Liability Act for a violation of a duty imposed by the act which resulted in the death of the deceased. If the death resulted from a violation of the Employers’ Liability Act an action for the death would not lie unless brought by the mother, for the mother alone was entitled to maintain the action for her sole benefit and to recover all of the damages resulting from the death of her daughter. The right to sue under the Employers’ Liability Act was vested exclusively in her, and whatever might, be recovered would be her sole property and be discharged of any claim of the estate of the deceased.

In the instant case plaintiff, possessing this sole and exclusive right to recover for her, own use all of the damages resulting from the death of her daughter, waived her individual right and sued for the benefit of her daughter’s estate, and it is contended that the present action cannot be maintained since it was not brought under the Employers’ Liability Act, although brought in a representative capacity by the person who was entitled to bring the action in her individual capacity. The Employers’ Liability Act contains no language indicating an intention to prohibit the person entitled to maintain an action under the Employers’ Liability Act from waiving the right to sue under that act and pursuing the remedy provided for in Section 380, and, since both remedies are provided by statute and no harm can result to the defendant from such waiver, we can see no reason why the plaintiff who' is the sole party in interest, should not be permitted to make such choice. The right of the person, who alone is entitled to sue for the death- of another under the Employers’ Liability Act, to waive his right to sue under that act and to bring an action under Section 380 has -not been heretofore decided by this court. That Section 380 is not abrogated by the enactment of the Employers’ Liability Act was held in Statts v. Twohy Bros. Co., 61 Or. 602 (123 Pac. 909), Niemi v. Stanley Smith Lwnber Co., 77 Or. 221, 234 (147 Pac. 532, 149 Pac. 1033), and McFarland v. Oregon Electric Ry. Co., 70 Or. 27 (138 Pac. 458, Ann. Cas. 1916B, 527). In the later case, Mr. Justice Moore, speaking for the court, said:

“This act (the Employers’ Liability Act) does not repeal sections 34 and 380, L. O. L., * * It is an additional enactment upon the subject and having been designed to enable the person sustaining the greatest loss for the untimely death of their natural or legal protector, the statute is remedial and as far as possible ought to “be liberally construed and favor the beneficiaries.”

Statts v. Twohy Bros. Co., supra, was an action under Section 380 by the administrator of the estate of the deceased who left surviving him a father living in Austria. One of the defenses was that the cause of action arose from a violation of the Employers’ Liability Act. In disposing pf that defense the court said the Employers’ Liability Act “is limited in its application to certain enumerated causes and it would appear that an action to recover damages for the death of an employee could be maintained only by a relative of the deceased,” but contrary to the later decisions of this court it was held that an action could be maintained by an administrator under Section 380 even though the deceased left a father surviving him. It is only proper to say, however, that the court stated that the averments of the complaint, when read in connection with the prayer for judgment, led to the conclusion that the cause of action thus set forth was founded on Section 380 and not on the Employers ’ Liability Act. An explanation of this ruling may be found in McDaniel v. Lebanon Lumber Co., 71 Or. 15, 24 (140 Pac. 990).

McClaugherty v. Rogue River Electric Co., 73 Or. 135, 161 (140 Pac. 64, 144 Pac. 569), was an action under the Employers’ Liability Act instituted by the father of the deceased to recover damages for the death of the son resulting from a violation of a duty imposed by the Employers’ Liability Act. Whether the mother was dead or not does not appear. If she was dead, the father was the proper person to bring the action, — the decedent not being a married man and leaving- no lineal descendants. In affirming the judgment in favor of the plaintiff the court said:

“As stated in our former opinion the act authorizes but one action for an injury caused by a violation of the law in case of death. Where there is any one of the beneficiaries named living and in position to bring the action, it cannot be brought by the personal representative of the decedent under Section 380, L. O. L.”

In the Niemi case, supra, an action was brought under Section 380 by the administrator of the estate of the deceased to recover damages for his deáth resulting from a violation of the Employers’ Liability Act. In reversing the judgment in favor of the plaintiff the court said: “The two acts, being directed to one common object (that is, to provide a statutory action for the death of a person resulting from the wrongful act or omission of another), must be construed together, and, as far as possible, effect must be given to the provision of each. A special provision for a certain class of cases will take that class out of the general terms used in either statute. Thus the Employers’ Liability Act provides by whom an action for the wrongful acts or omissions enumerated therein shall be instituted, and, as to a death arising therefrom, it is exclusive of Section 380, as long as'any one of the beneficiaries named therein survive, * * ”

In none of the cases cited was the point now under consideration directly involved or decided, and the question therefore is open for decision.

By commencing action under Section 380 plaintiff relieved the defendant of being subject to the liability, unlimited in amount, imposed by the Employers’ Liability Act, and made it possible for the defendant to interpose defenses which would not otherwise have been available. In exercising her choice of remedies plaintiff was dealing with rights vested solely in herself, and her choice of remedies injuriously affected the rights of no other person, and no one can be injured by the choice except herself. The statute provided two remedies and contained no prohibition against her exercising the right to choose between the two, and since a recovery under one will bar a recovery under the other, no reasonable ground exists for holding that she could not pursue her choice of either remedy and bring the action under either statute.

Over plaintiff’s objection and exception the court charged the jury to the effect that if they should find that deceased had been forbidden by the officers or agents of the defendant to go upon or operate the elevator, defendant would not be liable for the damage sustained in consequence of her being on the elevator and operating it at the time of her death. It is contended that this instruction was not relevant to any issue or to the facts proven. We find no allegation in the pleadings and no proof in the record that any officer or agent of the defendant ever forbade decedent to go on to or operate the elevator. All of the testimony upon that subject was that given by Mr. J. W. Angberg, the superintendent of the defendant corporation, and this is as follows:

“Q. Did you ever notice any of the girls — employees of the cannery riding on the elevator, Mr. Angberg? A. Yes.

“Q. You had seen them do it? A. Yes.

“Q. Have you ever seen Olga ride on it? A. Well, I could not say for sure I have seen her.

“Q. But you saw some of the other girls riding on it? A. Yes, sir.

“Q. Did you ever instruct or warn any of the girls not to ride on it? A. Yes, sir.

“Q. Did you ever instruct or warn Olga Thompson not to ride on it? A. Well, I ain’t sure if she was amongst the rest of them, she might have been there, but I wasn’t taking much notice. I just simply told them to keep away from that elevator.

“Q. You just told them to keep away from the elevator? A. Yes, sir.

“Q. Now, did you have any rules or regulations of any kind posted up in the cannery warning people to keep away from the elevator? A. No, sir.

“Q. You did not? A. No.

“Q. Well, was there any rule against using it for pleasure purposes? A. No, sir, there was no rule, it was a general understanding that it was not for pleasure.

“Q. Well, then I see — there was a general understanding that — you say that it was not to be used for pleasure purposes? A. Yes.

“Q. Mr. Angberg, the question is, — did you ever tell the employees there, among whom was Olga Thompson, — did you make any statement to them to the effect that the elevator should not be used for anything except business purposes? No, I never. No.

“Q. To the employees generally? A. No.

“Q. You say you never did? A. I told them to keep away from the elevator around — not to play around where the elevator was. That is all I told them. ’ ’

It is settled law in this state that it is error for a trial court to instruct the jury upon abstract propositions of law not applicable to the facts of the case, since the giving of such instructions tends to mislead the jury into assuming that a state of facts exist which cannot be found in the record, and that the giving of such instructions may be grounds for a reversal depending upon the extent to which the facts assumed in the instructions are adverse and injurious to the party complaining: Bowen v. Clark, 22 Or. 566 (30 Pac. 430, 29 Am. St. Rep. 625); State v. Weaver, 35 Or. 415, 418 (58 Pac. 109); Pearson v. Dryden, 28 Or. 380 (43 Pac. 166, and cases there cited).

And that it is error for the court to misstate to the jury the issues in a case on trial before them where it is probable that the jury were thereby confused or misled to the prejudice of the party against whom the verdict was rendered: Carson v. Lauer, 40 Or. 269, 273 (65 Pac. 1060). And also that it is error for the court to instruct the jury outside the issues if the facts assumed are adverse to the party complaining thereof: Tonseth v. Portland Ry. L & P. Co., 70 Or. 341, 347 (141 Pac. 868); Paldanius v. Strauss, 100 Or. 497, 508 (198 Pac. 253).

It is also contended that it was error for the court to instruct the jury to the effect that if they should find that the decedent “without the knowledge of the agents of the defendant clandestinely and secretly went into the elevator and operated it and thereby received the injuries complained of, then the defendant would not be liable to respond in damages for such injuries, and in that event, your verdict should be for the defendant. That is, if the deceased Olga Thompson, without the knowledge of any of the agents of the cannery who were in authority and had the right to represent the company were ignorant of the fact that she was in the elevator and attempted to operate it, then, of course, they could not be liable for negligence in her so doing, as that would not be their act, either by knowledge or permission.”

We think that it was error for the court to thus instruct the jury and that the error was not cured by what seems to be an inconsistent instruction later given that if the jury found “that the defendant had employed Thomas W. Nelson, Jr., and placed him in charge of the elevator, then he was an agent of the defendant for the operation and control of the elevator, and knowledge by and notice to him of matters pertaining to the operation of the elevator would be the knowledge of and notice to the defendant as to such matters.” Under the admissions of defendant’s answer in its fourth affirmative defense, defendant, on the day of decedent’s death, had placed Thomas Nelson, Jr., in charge of its elevator and had given him “full and complete charge and control thereof,” and, as it alleges, he had “assumed his duties of operating the same at about 8 o’clock in the morning of said day, and thereafter continuously operated the same whenever necessary.” Under these admissions and under the undisputed evidence in the case the defendant corporation had chosen Thomas Nelson, Jr., as its servant and had put him in charge of its business of operating its elevator, and while he was operating it and in the exercise of the power that the defendant had conferred upon him decedent sustained the injury which caused her death. It is undisputed under the evidence that decedent at the time of her death was on the elevator at his express invitation, and that at or just before her death she had been operating it with his permission, if not at his request. Hence it was error for the court to instruct the jury that if they should find that the decedent was on the elevator or operating it without the knowledge of the agents of the defendant who were fin authority and had the right to represent the company, or clandestinely and secretly, because under ,these admissions Thomas Nelson, Jr., was the agent of the defendant and authorized to speak for it so far as the operation of the elevator at that particular time was concerned, and his knowledge was the knowledge of the defendant corporation, as much so as if its manager or superintendent had himself been placed in charge and was engaged in the operation of it, and had done the acts which it is admitted Nelson did.

“The master is liable for the acts of his servant not only when they are directed by him, but also when the scope of his employment or trust is such that he has been left at liberty to do, while pursuing or attempting to discharge it, the injurious act complained of. It is not merely for the wrongful acts he was directed to do, but the wrongful acts he was suffered to do, that the master must respond.” Cooley on Torts (2 ed.), p. 626.

In Davis v. Ohio Valley Banking & T. Co., 127 Ky. 800 (106 S. W. 843, 15 L. R. A. (N. S.) 402, 409), the court said:

“The operator was placed in charge of the elevator by appellee. It thus assumed responsibility for his acts. If he permitted boys to play on the elevator, or ride on it in dangerous places, his employer must be held to the same degree of accountability as if the person in charge of the elevator had been a careful and experienced man. The liability of appellee is to be tested in this particular case, not by the age, understanding, or fitness of its employee, but by his acts.”

“So soon as it is admitted that there is authority to do a thing, the hand that actually does it may be the servant’s, yet the reason of the act is the master’s authorization or the master’s interest; therefore the master, as the motive power, is responsible.”

In a footnote on the same page the author quotes the following:

“ ‘The law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability’: Per Willes, J., 539; Byrne v. Londonderry Tramway Co. (1902), 2 I. R. 457. Objections have been made to the justice of imposing on the master, the possibly ruinous consequences of his servant’s negligence. The answer is, that the master, for his own purposes, has armed his servant with a destructive agency. The misuse of it should enure to the master’s detriment rather than that those injured by it should suffer loss.” 1 Beven, Negligence in Law (3 ed.), p. 574.

“Whether the act of the servant be one of omission or commission, whether negligent or fraudulent, ‘if,’ as was adjudged in Philadelphia & Reading R. R. v. Derby, 14 How. 468, 486 (14 L. Ed. 502), ‘it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize or even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment.’ ” New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 645 (30 L. Ed. 1049, 7 Sup. Ct. Rep. 1039, see, also, Rose’s U. S. Notes).

One of the defendant’s defenses was that the deceased was not acting within the proper scope of her employment and was at a place where she had no right to be when she sustained the injuries complained of, but there was no allegation of proof that Thomas Nelson,' Jr., the operator whom the defendant had placed in charge of its elevator, was not acting within the proper scope of his employment when the accident occurred. Under those circumstances one of the grounds upon which the liability of the defendant would depend was whether Thomas Nelson, Jr., knew of the peril of leaving the decedent on the elevator with permission to operate it, and with such knowledge failed to exercise due care to save her from the threatened danger. Since the defendant corporation had placed him in charge and control of the elevator, which he was at the time exercising, the defendant was charged with the same knowledge of decedent’s presence on the elevator that Nelson himself possessed, or would have possessed had he exercised due diligence. And the knowledge which the defendant is charged with through Nelson’s knowledge is the knowledge that Nelson would have possessed if, instead of being only fourteen years of age, he had been an experienced adult person. Hence the instruction of the court to the jury upon the theory that the defendant corporation may not have known of decedent’s presence on the elevator was error.

For these reasons the judgment must be reversed and the cause will be remanded to the court below for such further proceedings as are not inconsistent herewith.

Reversed and Remanded.

McBride, C. J., and Burnett and Coshow, JJ., concur. For appellant there was a brief over the name of Messrs. Mathison & Mannix, with an oral argument by Mr. Enoch E. Mathison. For respondent there was a brief over the name of Messrs. Norblad & Hesse, with an oral argument by Mr. Frank E. Hesse.

Reversed on rehearing June 1, 1926.