Rehearing denied and former opinion amplified April 11, 1933 FORMER OPINION AMPLIFIED (20 P.2d 1086) In our former opinion in this case we said:
"Since the plaintiffs herein have had their day in court so far as the issues involved herein pertaining to the statutory duty of both the defendant in the federal court case, the Union Lumber Company, Ltd., and the defendant herein are concerned, public policy demands that they be not permitted to litigate these issues a second time, and so far as these issues are concerned the plaintiffs are estopped from again litigating them. The plaintiffs have once had a full and fair trial as to these matters, unaffected by the relationship existing between the owner of the land and the logging company.
"In so far as the complaint may contain charges of violation of a common-law duty imposed upon the owner of the land, regardless of who is occupying or using the same, to exercise reasonable care and diligence to prevent the spread and escape of fires which break out thereon, the same rule of law applies as in the case of the violation of a statutory duty".
After the petition of the respondent, LaDee Logging Company, for a rehearing was denied that company filed a motion embodying the following request:
"In order that the parties and the trial court may follow and may correctly apply the decision of this court in the trial of the action, respondent respectfully moves the court to modify or to supplement its judgment and opinion herein so that the same shall specify: (1) What charges of negligence alleged in the complaint herein are barred because relating to breaches of duty imposed either by statute or common law upon both the owner of the land and respondent as the party in possession; and (2) what charges of negligence alleged in the complaint are not barred because relating to breaches of duty imposed only upon respondent as an independent contractor". *Page 463
In order to determine whether or not the former opinion should be amplified in the respect pointed out, the appellants were requested to and did file a brief relating to the matters covered by said motion.
In the amended complaint in the federal court case it is alleged that the Union Lumber Company, Ltd., defendant in that action, was the owner of timber and forest lands in townships Four and Five south of ranges Five and Six east of Willamette Meridian, whereas in this action it is alleged that the defendant herein was operating "in township Four south of ranges Five and Six east of the Willamette Meridian, and adjacent thereto, as loggers". It further appears from the contention made by the plaintiffs in this action that the defendant herein was at the time the fire occurred operating on lands other than those owned by the Union Lumber Company, Ltd. It also appears from the allegations in the case at bar that the defendant herein did not "keep clean and remove from the operated logging railroad right-of-way accumulations of inflammable material, and also tinder, refuse and extra dried vegetation likely to be the cause of or become set on fire".
In the federal court case the attorney for the defendant therein, who is also attorney for the defendant in this case, said:
"I am not sure, gentlemen, whether or not I make clear to you and to the court the fact that the logging railroad, at the place where the fire broke out, was the railroad of the LaDee Logging Company, and not the railroad of the defendant, the Union Lumber Company".
Any right of action which the plaintiffs had, prior to the judgment in the federal court, against the defendant *Page 464 herein due to the negligent acts of the said defendant on lands not owned by the Union Lumber Company, Ltd., would not be barred by said judgment.
Section 42-406, Oregon Code 1930, is to the effect that any and all inadequately protected forest land covered wholly or in part by inflammable debris or otherwise likely to further the spread of fire, which by reason of its situation or condition or lack of protection endangers life or property, is declared to be a public nuisance. Section 42-601 provides:
"Every owner of timber land in the state of Oregon shall furnish or provide therefor, during the season of the year when there is danger of forest fires, adequate protection against the starting or spread of fire thereon or therefrom which shall meet with the approval of the state board of forestry".
The following section, 42-602, provides that in case the owner shall fail or neglect to provide the protection required by the section quoted, the state forester shall provide the same and tax the cost thereof to the owner.
According to the answer of the Union Lumber Company, Ltd., in the federal court case, the Oregon state board of forestry had for the year 1929 and for five years prior thereto assessed the timber land referred to in that case belonging to said company, for fire patrol, and such assessments had been paid. Therefore, no liability would attach to the Union Lumber Company, Ltd., by virtue of section 42-406, Oregon Code 1930, as such lands were, within the meaning of the statute, adequately protected. It cannot be said, however, that compliance with this section by the owner would warrant an independent logging company to conduct its logging operations in a negligent or careless manner, regardless of fire hazards. *Page 465
Section 42-421, Oregon Code 1930, provides that:
"Every one (by which is meant every person, firm or corporation) engaged in logging or wood cutting, or permitting logging or wood cutting upon his lands in this state, thereby creating a fire hazard, shall, unless relieved by the state forester, each year remove such hazard by burning his annual slashing, by which is meant the tops and inflammable refuse left after logging or wood cutting, that may carry fire or cause it to be spread, at such time and in such manner and with such provisions of help as shall afford all necessary precaution against the spread of fire to other property".
Under the provisions of the section last quoted it became the duty of both the Union Lumber Company, Ltd., and the defendant herein to burn the annual slashings caused by operations of the LaDee Logging Company on the Union Lumber Company's property. If these annual slashings were not burned, and the failure to burn the same was the proximate cause of the damage to plaintiffs' property, then under the holding in our former opinion the judgment in the federal court case in favor of the Union Lumber Company, Ltd., is a bar to the maintenance of this action in so far as the present action is based upon the failure of the defendant and the Union Lumber Company, Ltd., to comply with the law relative to the burning of the annual slashing. If the slashing was burned annually according to law, then the Union Lumber Company, Ltd., under the section last above quoted, would not necessarily be liable for the accumulation of slashing due to the operations of the defendant company. Section 42-421 does not provide that it shall be the duty of the owner, at all times, to keep his property free from slashings; otherwise it would not have referred *Page 466 to the removal of the annual slashing. Section 42-409 provides that the period between May 15 and October 1 shall be designated as the closed season and it shall be unlawful during that time for any one to set on fire or cause to be set on fire any forest land without first securing a written or printed permit from the state forester.
The defendant is charged with negligence in failing to "keep clean and remove from its operated logging railroad right-of-way accumulations of inflammable material, and also tinder, refuse and extra dried vegetation likely to be the cause of or to become set on fire", and in allowing "the same to accumulate on and near the ties and rails of its said railroad so that fire might be communicated thereto". We cannot agree with respondent that under section 42-421 it became the duty of the Union Lumber Company, Ltd., to keep the railroad right-of-way clear of the inflammable material above referred to, except in so far as that material might consist of "tops and inflammable refuse left after logging or wood cutting". Moreover, we do not understand that the plaintiffs are attempting to charge the defendant herein with failure to remove, from the right-of-way owned by the Union Lumber Company, Ltd., the tops and inflammable refuse left after logging or wood cutting. Section 42-423 requires that every "person, firm or corporation operating a railroad of any kind in this state" shall "annually or oftener, if so directed by the forester, and in a manner and to an extent directed by said forester, destroy or remove all inflammable material from the right-of-way of said railroad". The requirement of this section is much broader than that of section 42-421, and the statutory duty of section 42-423 *Page 467 is, with the exception pointed out in reference to section 42-421, imposed upon the individual or firm operating the railroad, and not the owner thereof.
Section 42-425, Oregon Code 1930, makes it a felony for any one wilfully and maliciously to set fire to any forest, woods, timber, brush, slashing, cut-over land, or clearing, or any place from which fire may be communicated thereto; and section 42-426 makes it a misdemeanor for any one accidentally to set fire to any forest, woods, etc., and not to extinguish the same or use every possible effort to do so, or to build any fire for lawful purposes or otherwise in or near such forest, woods, etc., and through carelessness or neglect suffer or permit such fire to burn into or through such timber land. These sections apply to the immediate actor rather than to the owner of the land and, according to the complaint in this case, the defendant is charged with certain violations of these sections of the code. The judgment in the federal court case would not be a bar to an action by plaintiffs against the defendant herein based upon the violation of these provisions of the statute.
In his charge to the jury in the federal court case Judge McNary correctly said:
"LaDee Logging Company was an independent contractor, and the defendant [Union Lumber Company, Ltd.] can not be held for its negligence, if any, in conducting its logging operations. As an example, the defendant would not be liable for the negligence of the logging company in handling its locomotives or cars while engaged in logging, or in the falling of trees, or in the hauling of logs, or in doing any other thing in connection with its logging operations".
The respondent, in the motion before us, directs our attention to section 42-410 and section 42-411, Oregon *Page 468 Code 1930, as imposing certain duties upon the owners of forest lands and infers that by reason thereof these duties are imposed alike upon the owner and the party in possession. Section 42-410 provides that any one who wilfully or negligently allows a fire to escape from his own land or lands of which he is in possession, or any one who accidentally sets any fire upon his own land or the land of another and allows it to escape from his control without extinguishing it or using every possible effort to do so, or who, having knowledge of a fire burning on his own land or lands of which he is in possession or control, fails or neglects to make every possible effort to extinguish the same, regardless of whether or not he is responsible for the starting or existence thereof, shall be deemed guilty of a misdemeanor. As will be noticed by reading this section of the statute, the LaDee Logging Company might be liable thereunder, whereas no liability would attach to the Union Lumber Company, Ltd.
The defendant, LaDee Logging Company, was, according to the contention of the Union Lumber Company, Ltd., in the federal court case, in the active and exclusive possession of the property belonging to the Union Lumber Company, Ltd., and because of its occupancy thereof probably had knowledge of certain fires thereon before the existence of such fires came to the notice of the Union Lumber Company, Ltd. In other words, it can not be said that the duties imposed by section 42-410 are incumbent alike in all instances upon both the owner and the party in possession. It is more than likely that the Union Lumber Company, Ltd., might show that it did not wilfully or negligently allow the fire to escape, because it had no knowledge thereof, while the La Dee Logging Company, being in *Page 469 possession of the land, might have had knowledge of the fire and wilfully or negligently have allowed it to escape from land in its possession. As said by Judge McNary in the federal court case, "the duty imposed upon the defendant [Union Lumber Company, Ltd.] by law to use reasonable care and diligence in fighting and preventing fires would not arise until the defendant had knowledge of the existence of the fire".
Section 42-411 requires certain things to be done by the owner or the party in possession of forest land immediately upon having knowledge of the existence of a fire upon the land. What we have said regarding the preceding section is, in a large measure, applicable also to this section.
In this action against the party in possession of the land the defendant herein, as pointed out in our former opinion, is attempting to plead the judgment in an action by these same plaintiffs against the owner of the land as res judicata. Had it been conceded by the defendant in the federal court case (Union Lumber Company, Ltd.) that the logging company was its agent, and had that case been decided on the theory that the defendant therein was responsible for its own negligence and the negligent acts of the LaDee Logging Company, then the solution of the question now before us would be fairly simple. We have here, however, an instance in which an independent contractor is contending that a judgment in favor of the company with which it had contracted is a bar to the further prosecution of this action. In an instance of this kind it is axiomatic that acts for which the owner could not have been held responsible because committed by the party in possession can not be said to have been adjudicated favorably to the party in possession and adversely to the injured. *Page 470
It is impossible for us in the state of the record before this court to point out definitely what acts of negligence charged in the complaint were included in and concluded by the federal court case. Any such definitive segregation will depend a great deal upon the testimony which is offered at the trial in the lower court.
RAND, C.J., BEAN and CAMPBELL, JJ., concur. *Page 471