Former opinion adhered to on rehearing April 7, 1925. ON REHEARING. (235 P. 305.) 3. Without citing any precedents in addition to those in his original brief, the plaintiff and respondent has filed a petition for rehearing, claiming that the court committed error in holding that there is no testimony to support the charge "that the lumber company was engaged in or had charge of the repair of the dock." It is believed that this question cannot be decided without reference to the plaintiff's complaint. It is a theory long in use in the practice of law that the pleadings declare *Page 460 and control the issues to be determined and the relations that the parties bear to each other.
The plaintiff's complaint avers, and it is admitted:
"That defendant West Oregon Lumber Company employed the defendant Severin Synnes as a contractor to furnish the necessary labor to do such repair, construction and alteration work in and about its said lumbering plant as it required, including the dock construction or repair work hereinafter described.
"That defendant Severin Synnes was at all times herein mentioned engaged as a contractor in a hazardous occupation, to-wit: the repair and construction of buildings, wharves and docks, and working on buildings, wharves and docks, and employing more than five men as an employer, and subject to the Workmen's Compensation Act of the State of Oregon, but said defendant was not operating under said Workmen's Compensation Act but on the contrary had by written notice to the State Industrial Accident Commission rejected said compensation act, beginning July 1, 1918; that the work which plaintiff was doing on the dock, hereinafter described, was a hazardous occupation and dangerous and hazardous work.
"That on the 24th day of January, 1922, plaintiff was employed by defendant Severin Synnes to do certain work in repairing the river docks of the defendant West Oregon Lumber Company located on the Willamette River, near Linnton, Oregon, and on said date plaintiff was engaged in repairing said docks and was working on a scaffold about twenty-five feet and more than twenty-five feet above the water."
It is further said in the complaint that
"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 *Page 461 defendant Severin Synnes having employed him to do the repair work at said dock."
As between the plaintiff and the defendant West Oregon Lumber Company, the only appellant before us, this certainly fixes beyond question, using the very words of plaintiff's complaint, that Synnes was a contractor
"engaged as a contractor in a hazardous occupation, to wit: the repair and construction of buildings, wharves and docks."
There is no issue on this question and it is not by the mark to refer to testimony which by a constrained construction might indicate that the plaintiff was in the employ of the company. The settled construction of the Employers' Liability Law under such circumstances is laid down by such cases as Tamm v. Sauset,67 Or. 292 (135 P. 868, L.R.A. 1917D, 988), to the effect that the contractor alone is responsible to his employees for any defective material or other negligence occurring in the progress of the work which the contractor has undertaken. The principle underlying such cases is the familiar one that the owner who may have given plans and specifications and directions about how the work is to be performed is not responsible for injury to the employees of the contractor who undertakes to produce a result in harmony with those directions by his own methods. The contractor is responsible for the details of the work and the manner in which it is to be accomplished, while the owner looks only to the general result. This case of Tamm v. Sauset has stood as an unreversed decision for more than ten years and is the settled law of this state.
Nowhere in his pleadings, or in the evidence for that matter, does the plaintiff pretend in the least *Page 462 to be the employee of the company. He says in his complaint and in his testimony that he was employed by the contractor and paid by the contractor. Much is said in the testimony about the duty of the company to furnish the material, but the question to whom it was to be furnished is utterly ignored in the discussion. It was part of the contract between Synnes, the contractor, and the company that the latter should furnish to Synnes and not to any of his employees the material necessary to be used. It was the duty of Synnes and not of the company to inspect this material and to see that it was proper and safe to be used. It was Synnes and not the company that could not delegate this duty to another. It is hornbook learning that the master is charged with the nondelegable duty of providing for his employees a safe place and safe appliances with which to work. But who is the master in this instance? It is answered by the complaint, which states that Synnes was the master. Upon him the duty devolved of furnishing a safe place in which to work and safe appliances with which to work.
On the subject of who was the employer of the plaintiff, although it is conclusively settled by the pleadings and by repeated oral stipulations during the trial, considerable is said in the testimony by witnesses to the effect that they would have left the work if they had been directed so to do by the company's superintendent. That does not affect the case, for it is mere conjecture incapable of proof. What might have been, but which was not, is treated in the opinion of Mr. Justice MOORE inHughey v. Smith, 65 Or. 323 (133 P. 68), and in the later case of Churchill v. Meade, 92 Or. 626 (182 P. 368), to the effect that such testimony is utterly of no import *Page 463 whatever. Courts deal with facts and not mere vain conjectures.
The testimony does not disclose any direction whatever by the company or any of its employees given or communicated to the plaintiff as to how he should accomplish the result of repairing the dock. There is a great deal of impersonal allegation and vague statements about directions what to do, but they amount to no more than can be implied in any specification or plan promulgated by an owner respecting the work to be done. The record is utterly silent that the plaintiff received any directions from anyone to use the particular rope which he claims was defective. He does not say that the company directed him to knock loose the timber upon which he stood after having tied it with the rope in question. Without authority, directions or knowledge of the company he selected the rope, used it as he chose, with the result stated in his complaint, all without knowledge or direction of the company. In the matter involved it owed him no duty whatever under the allegations of his complaint. Although there may have been, for the sake of argument, a breach of the company's contract with its contractor whereby it agreed to furnish to him the necessary material for the work, yet there was no breach of contract or statutory duty on the part of the company towards the plaintiff within the meaning of Tamm v.Sauset, supra.
Such cases as Clayton v. Enterprise Electric Co., 82 Or. 149 (161 P. 411), Turnidge v. Thompson, 89 Or. 637 (175 P. 281), and Rorvik v. North Pac. Lumber Co., 99 Or. 58 (190 P. 331, 195 P. 163), are not in point here. In all those cases the instrumentality of the defendant company which caused the injury was in *Page 464 active operation and directly affected the plaintiff who in each instance was the employee of a third person, except in the Turnidge case, where the decedent was acting according to his own designs. Rorvik was the captain of a ship upon which lumber was being loaded from the defendant's dock and was standing in a place where he had a right to stand in his connection with the work when the lumber being loaded by the lumber company struck him and knocked him into the water. In Clayton v. EnterpriseElectric Co., where the plaintiff's decedent was electrocuted by the defendant's wires, they were in active operation carrying a high-tension charge of electricity which caused the death of the decedent. Here all the property of the defendant was inert. No operation of the company involved its use. The company, in reason, is not liable to the employee of a contractor when the latter, without any direction from anyone, assumed to take material which had never been designated for use on the job and so operated with it so as to bring about his own hurt.
Having in view the alleged duty of the company to furnish the material, yet a breach of that duty is a breach of its contract with its contractor Synnes. It did not relieve the latter from his duty, as master, to furnish to the plaintiff, his employee, a safe place in which to work and safe material with which to work. Synnes could not delegate that duty to the defendant, and there is no ground whatever for saying that the company assumed any duty towards the plaintiff. Neither is there any testimony whatever to show that the company designated this rope in question for use on that job. The plaintiff, indeed, says: *Page 465
"we had used this rope for letting down the two by sixes three feet below and then get down on the two by six and nail them to the piling; we had used this same rope, or the same kind of rope, that I used at this time.
"Q. You mean the rope that caused the accident?
"A. Yes, the rope that caused the accident. When I wanted a piece of rope, I didn't know if the ropes that we had been using were laying there or not, but I asked Mr. Johnson for a rope, he being on top of the dock, of course, helping me and he got me this rope and I tied it onto the other end of the two by six, and he held the rope, and he stood on top of the docks and held the rope, and I crossed over, got down on this two by six and nailed it to the piling."
Mr. Johnson, as the testimony shows, was also an employee of Synnes, and while the plaintiff as a witness is very careful to say that they had used the rope, he does not say that the use was by the direction of any employee or officer of the company. The plaintiff further says:
"When Mr. Knapp was foreman, we had tied this scaffolding work up this way in the same manner, with the same or the same kind of rope, and, as far as we knew, and as far as we could find, the best rope that we could find, and, in fact, about all we could find anywhere on the premises, and we had used this rope, in tying up this scaffolding work, when we would have to cut off one piling that was decayed or rotten."
But Mr. Knapp was the foreman for Synnes, according to most of the testimony, and it is not pretended anywhere that he was the employee or the agent of the company. The plaintiff was asked:
"Q. What kind of a rope was this?
"A. Well, in a way, it wasn't rope, but it was made up like rope and answered the same purpose. *Page 466 It was a twine, and, as far as I know, they used it about the mill — I have seen it on rolls there about the mill; as far as I know they used this rope or twine, they would cut it off in pieces, and they would pull strings out of it to tie up the lumber, the plain lumber and the best grades, it seemed, of lumber, is really what the rope was used for, as far as I know."
Every act of negligence charged in the complaint is referable solely to the nondelegable duty of the master to the employee to furnish suitable safe materials with which, and a safe place in which, to work. Beyond all question, under the pleadings, this was a duty incumbent upon Synnes. Upon him as a contractor, and as the employer of the plaintiff, rested the duty of seeing that
"all * * rope * * or other material whatever, shall be carefully selected and inspected and tested so as to detect any defects," etc.,
as prescribed in the Employers' Liability Law. The supposed breach of the company's contract with Synnes to furnish material reasonably suitable for the work in hand is not the proximate cause of the plaintiff's injury, which is attributable, as stated, to the duty of the master to furnish a safe place and safe materials.
In Chambers v. Everding Farrell, 71 Or. 521 (136 P. 885, 143 P. 616), is quoted with approval this excerpt fromBrown v. Oregon-Washington R. N. Co., 63 Or. 403 (128 P. 40):
"Proximate cause is such cause as would probably lead to injury and which has been shown to have led to it. It need not appear from the evidence that the injuries complained of resulted instantly and immediately from the negligence. The law regards the one as the proximate cause of the other, without *Page 467 regard to the lapse of time, where no other cause intervenes or comes between the negligence charged and the injuries received to contribute to it. There must be nothing to break the causal connection between the alleged negligence and the injuries."
In Washington v. Baltimore etc. R. Co., 17 W. Va. 196, it is said:
"The act or omission, which constitutes negligence, must be such as directly produces as its natural consequence an injury to another. And therefore if a party do an act, which might naturally produce an injury to another as its consequence, but, before any such injury results, a third person does some act or omits to perform some act, * * and this act or omission of such third person is an immediate cause of an injury, which would not have occurred but for his negligence, such third person is responsible for such injury and not the party guilty of the first negligence; for the causal connection between the first act of negligence and the injury is broken by the interposition of the act or omission of the third party."
See, also, Vanderflute v. Portland Ry., L. P. Co.,103 Or. 398 (205 P. 551).
Laying aside for the moment the utter absence of any testimony whatever that the company had submitted the rope in question for use by the plaintiff, or in other words, "furnished" the same for his use, yet if it had designated that rope for use in the work, it then became the nondelegable duty of the employer Synnes under the statute to inspect the same, test it and see that it was proper for use. The omission in this respect is the proximate cause of the plaintiff's alleged injury. It is not attributable to the company. There is no testimony that he was compelled or directed to use the rope at all, or to use it in the manner in which he did use it, at least, as affects the company and himself. He cannot *Page 468 claim damages from the company on any ground stated in the complaint.
There is no issue in the pleadings about Synnes being the contractor engaged in the work under consideration; that the plaintiff was his employee and not an employee of the defendant company. There is no issue either on the fact that the duty to furnish the material for the work was one due to Synnes with whom the company contracted. There is no proof whatever that the company furnished the rope in question, or indicated to or directed the plaintiff to use it in any manner whatever. The plaintiff did not apply to any officer or employee of the company for rope to be used on the occasion in question, but, according to his own testimony, asked Johnson, another employee of Synnes, for a rope, "and he got me this rope." No direction respecting the work is shown to emanate from the company, except what any owner may safely put into plans and specifications for the information of any contractor. The company contracted for a finished result. By the pleadings, as well as by the evidence, it had no control whatever over the details of the work or the manner in which it should be accomplished. As to that, the plaintiff was an independent actor, doing as he pleased, and using what he chose to use. In such cases, neither under the Employers' Liability Law as construed by our former decisions nor under the common law is the company liable to the plaintiff. He cannot make one case in his pleadings, and by impersonal statements in the testimony make another case so as to bind the defendant company.
Thus far the case in hand has been treated mainly with reference to the pleadings, on the principle *Page 469 that they are exclusive in defining the issues to be determined. The effort of the plaintiff, however, seems to be to establish by the testimony, regardless of the pleadings, that Synnes, his employer, temporarily loaned him to the company to perform certain labor for the latter on its premises. We will consider the subject from that standpoint.
"If an employer loans his servant to another for some special service, such servant, with respect to that special service, becomes the servant of the party to whom his services have been loaned.
"Where a servant in the general employment of one is employed, with his consent, to do work for another, he thereby becomes a servant of the latter. The fact that there is an intermediate party, in whose general employment the person whose acts are in question is engaged, does not prevent the principal from being held liable for the negligence of the subagent or under servant, unless the relation of such intermediate party to the subject matter of the business in which the under servant is engaged is such as to give him exclusive control of the means and manner of its accomplishment, and the exclusive direction of the persons employed therefor. * *
"The test is whether the servant has become subject to the direction and control of the party to whom his services have been temporarily transferred." 1 Bailey on Personal Injuries (2 ed.), § 25.
The excerpt above quoted clearly recognizes the direct liability of a contractor for injuries to his own servant, irrespective of the general employer, but for present purposes we treat the matter as if the plaintiff had been loaned by his employer to the defendant company. On that theory he became the servant of the company.
We read in the complaint: *Page 470
"The defendant West Oregon Lumber Company owns and operates a sawmill and lumbering plant in the vicinity of Linnton, Oregon."
We ascertain by further perusal of that pleading that the defendant company employed Synnes as a contractor to furnish the necessary labor to do such repair, construction and alteration work in and about its said lumbering plant as it required, including the dock construction or repair work described in the complaint, and that the work which plaintiff was doing on the dock was a hazardous occupation and dangerous and hazardous work. This reference to the complaint is made for the purpose of showing the character of the work which the plaintiff insists was being carried on by the company. What is said about a contractor may be considered as negligible for present purposes.
It is said in Section 6614, Or. L.:
"All persons, firms and corporations engaged as employers in any of the hazardous occupations hereafter specified shall be subject to the provisions of this act."
The remainder of the section gives a privilege to employers to decline the benefits of the Workmen's Compensation Law. By the following section, workmen in the employ of such persons, firm or corporation as are subject to the act may be relieved of the obligations of the act on giving notice. Section 6616 reads thus in part:
"Every workman subject to this act while employed by an employer subject to this act, who, after June 30th next following the taking effect of this act, while so employed sustains personal injury by accident arising out of and in the course of his employment and resulting in his disability, or the beneficiaries *Page 471 as hereinafter defined, of such workman in case the injury results in death, shall be entitled to receive from the industrial accident fund hereby created the sum or sums hereinafter specified and the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury or death except as hereinafter specially provided."
Defining what is meant by hazardous occupations, we find in Section 6617, Or. L., the following to be among those listed:
"(a) Factories, mills and workshops where power-driven machinery is used; * *
"(b) Foundries, blast furnaces, mines, wells, gas works, water works, irrigation works where power-driven machinery is used, reduction works, breweries, wharves, docks, dredges, smelter, powder works, laundries where power-driven machinery is used, quarries, engineering works;
"(d) Logging, lumbering and shipbuilding operations."
Within the meaning of the Workmen's Compensation Act, therefore, the defendant company at the time of the happening of the accident of which the plaintiff complains was engaged in a hazardous occupation was subject to the provisions of the Workmen's Compensation Act, and was entitled to its privileges. Hence it follows that if the plaintiff was loaned by his employer to the company and thereby became its employee he can claim nothing by this action, because it is said in Section 6616, Or. L., that the benefits specified therein and the right to receive them "shall be in lieu of all claims against his employer on account of such injury."
Thus we have a dilemma, one based upon the pleadings declaring that the plaintiff was the employee *Page 472 of a contractor engaged in the hazardous occupation of repairing and enlarging the dock in question, and the other based upon the construction of the testimony advanced by the plaintiff, the result of which is to make him the temporary employee of the company. The first aspect of the situation is governed by Tamm v. Sauset, supra, and kindred cases. The other branch is governed by the Workmen's Compensation Law, which refers the person injured solely to the Industrial Accident Fund. The principle is thus aptly stated by Mr. Justice MOODY in StandardOil Co. v. Anderson, 212 U.S. 215, 221 (53 L. Ed. 480,29 Sup. Ct. Rep. 252, 254, see, also, Rose's U.S. Notes):
"It sometimes happens that one wishes a certain work to be done for his benefit and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work and places them under his exclusive control in the performance of it, those men became prohac vice the servants of him to whom they are furnished. But, on the other hand, one may prefer to enter into an agreement with another that that other, for a consideration, shall himself perform the work through servants of his own selection, retaining the direction and control of them. In the first case, he to whom the workmen are furnished is responsible for their negligence in the conduct of the work, because the work is his work and they are for the time his workmen. In the second case, he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negligence in the conduct of it, because, though it is done for the ultimate benefit of the other, it is still in its doing his own work." *Page 473
In neither event can the plaintiff here recover anything from the defendant company. If he was the employee of the contractor, the latter could not delegate to the company the duty of providing for his safety and he must rely on his judgment against the contractor. On the other hand, if he was loaned by his employer to the company and so became the employee of the latter, subject as it was to the Workmen's Compensation Act, he will have to look to that statute for relief. The former opinion is adhered to and the judgment is reversed.
REVERSED. REHEARING DENIED.
McBRIDE, C.J., and BROWN, RAND and BELT, JJ., concur.