From a judgment on the verdict for the defendant, the plaintiff appealed and the decision of the Circuit Court was reversed in an opinion reported ante, p. 436 (235 P. 694). A rehearing in this court was granted and the cause has been under advisement.
The complaint is too long to set out in full, but the substance is as follows: The plaintiff was appointed administratrix of the estate of Olga Thompson, deceased, and duly empowered by the County Court to *Page 470 commence this action. The defendant is a corporation engaged in conducting and operating a cannery, and as such "operated certain machinery used as an elevator in said factory," operated by electric power.
On August 16, 1920, the plaintiff's intestate was employed by the defendant to work in the cannery at various tasks, at times on a lacquering machine, and that in the course of her employment, with the knowledge and consent of the defendant, she operated the elevator and that this was a part of the work carried on by her for the defendant in the general course of her employment. The decedent was a minor, about the age of fifteen years, and was inexperienced in the operation or control of the elevator or any other kind of dangerous machinery, and she often operated the elevator with the knowledge and permission of the defendant. The complaint further states that at the time of the accident resulting in the death of the decedent, the operator then in charge and control of the elevator requested and permitted the deceased to operate the same for the purpose of permitting the operator to inspect the machinery while the same was in motion. The complaint also states that there was no bell or other signal on the elevator, or any part thereof, and hence no communication could be had between the operator and any person on any one of the floors of the factory, except by vocal call. Complaint is also made of a defective gate which is said to have fallen upon the girl and so contributed to her death. It is averred that it was practicable to have a safe and suitable gate and guard around the openings of the different floors of the building through which the elevator ran, and to have a system of communication by means of signals, all of which could have been installed and used without *Page 471 impairing the efficiency of the elevator; that the defendant knew of all these defects but failed to provide against them by suitable appliances, and that all these deficiencies contributed to the death of the decedent. Again, it is charged as negligence that the defendant failed to notify the deceased minor of the danger of the machinery by which the elevator was operated, and this was negligence and the proximate cause of her death. Finally, it is averred that the defendant had put in charge of the elevator, as operator thereof, a boy of the age of fourteen years; that owing to his inexperience he failed to comprehend the danger attendant upon the operation of the elevator by the deceased or to warn her of the danger, and that the violation of the laws of the state in placing the elevator in charge of a boy of that age was neglience contributing to her death.
On the rehearing the contention of the defendant most strongly pressed was that this complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiff, administratrix. This is the sole question to be considered at this time, for, if the contention be well grounded, it may be urged for the first time in this court.
In Duby v. Hicks, 105 Or. 27, 36 (209 P. 156), Mr. Justice RAND wrote thus:
"The objection that the complaint does not state facts sufficient to constitute a cause of action, whether demurred to or not under Section 72, Or. L., is never waived. It has always been the law in this state that this objection, whether raised in the lower court or not, could be taken advantage of successfully on appeal. The fact that the objection is raised for the first time on appeal does not in the slightest degree detract from the force of the objection, if the same is well taken. Upon this point it is unnecessary to cite *Page 472 authorities, but see Whitney Company, Limited, v. Smith,63 Or. 187, 191 (126 P. 1000)."
In determining the sufficiency of the complaint as a matter of law we must look to that pleading itself. It is not enough that the evidence may show a cause of action in favor of someone. The complaint must be sufficient to sustain the cause of action alleged, which must be in favor of the plaintiff, else the pleading is insufficient. The question of a defect of parties is not raised by the record in this case. A defect of parties contemplates a situation where the plaintiff has stated a cause of action in which he is interested or is a proper party but his complaint discloses that complete relief cannot be given without the presence of some other one, either as plaintiff or defendant.
That provision of Section 68, Or. L., subdivision 4, "that there is a defect of parties plaintiff or defendant," does not apply to a case where the plaintiff has stated a cause of action which possibly may belong to some other one but does not in any event belong to himself. A complaint by Jones alleging that Brown had negligently and carelessly driven his automobile over Smith and had injured the latter certainly would not state a cause of action in favor of Jones. For illustration, a question about defect of parties properly would arise where the right of action accrued to two or more lineal heirs of the decedent and it appeared that some of them were not joined as parties, but no such case is prosecuted here.
In this case the question is whether the conventional person, known as an administratrix, has stated a cause of action for that person. The conventional person and the natural person are two entirely distinct entities. Neither one has any right in common *Page 473 with the other. A meticulous perusal of the complaint does not disclose any relation of consanquinity between the plaintiff and the decedent. All that is said about the character or relation to the case of the plaintiff is contained in the first allegation of the complaint:
"That heretofore, on or about the 3rd day of March, 1921, the plaintiff was by the County Court of the State of Oregon, for Clatsop County, duly appointed administratrix of the estate of Olga Thompson, deceased, and ever since said date this plaintiff has been and is now the duly qualified and acting administratrix of said estate, duly empowered by said County Court to institute and proceed to determination with this cause."
The complaint is utterly barren of any intimation that the individual who appears as administratrix is the mother or other relative of the decedent. The question then is whether the administratrix of the decedent's estate has stated any cause of action for herself, the proceeds of which would go to the estate of the decedent to be disbursed to her creditors and her heirs.
In the construction of the complaint it matters not that the situation portrayed by that pleading would be more favorable to the defendant and give it more defenses than would arise under the Employers' Liability Act. The defendant is entitled to meet the complaint as stated and if it does not disclose a cause of action to urge that objection even for the first time in this court. We have no right to say to him that "you have not been attacked as severely as you might have been, and hence must be satisfied with a defective complaint." *Page 474
The statute governing in this kind of a case, as delineated in the complaint, is the Employers' Liability Law, enacted by the initiative process in the general election of 1910, and codified in Chapter XIV of Title XXXVIII, Or. L. It is there said in Section 6785, Or. L., that:
"All owners, * * corporations or persons whatsoever, engaged * * in the erection or operation of any machinery, * * shall see that * * all dangerous machinery shall be securely covered and protected to the fullest extent that the proper operation of the machinery permits, and all shafts, wells, floor openings and similar places of danger shall be inclosed, and all machinery other than that operated by hand power shall, whenever necessary for the safety of persons employed in or about the same or for the safety of the general public, be 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 generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliances and devices."
Every one of the causes of the accident which resulted in the death of Olga Thompson, as delineated in the complaint, is referable to the foregoing section of the act, either in express terms or in lack of the care and precaution enjoined by the law. They spell a clear violation of the act. *Page 475
As to the party plaintiff, it is stated in Section 6788, Or. L.:
"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 their respective benefit in the order above named."
In that the complaint shows that the defendant was engaged in the operation of machinery, namely: an elevator operated by electric power, and that the floor openings were not properly guarded, and there was no system of communication by means of signals, and that it was practicable, without impairing the efficiency of the machine, to supply those guards for the floor openings and the system of signals, the complaint as to the tort committed is clearly cast under the provisions of the Employers' Liability Law.
It is fallacious to contend that there is any element of common-law liability in this case, where the tort resulted in the death of the person injured. There was no action at common law for the death of a person: Perham v. Portland Electric Co.,33 Or. 451 (53 P. 14, 72 Am.St.Rep. 730, 40 L.R.A. 799);McFarland v. Oregon Electric Ry. Co., 70 Or. 27 (138 P. 458, Ann.Cas. 1916B, 527). It was not until the enactment by the English Parliament of what is *Page 476 known as Lord Campbell's Act, in 1846, that anything could be recovered for the death of the injured person. The principle was that the cause of action for the tort died with the person upon whom the injury was inflicted. In this state any cause of action for the death of a person depends exclusively on statute law.
Neither is it a question of fact whether the action was brought under the Employers' Liability Law or under Section 380, Or. L., or as upon a common-law liability. In Schulte v. Pacific PaperCo., 67 Or. 334 (135 P. 527, 136 P. 5), Mr. Justice EAKIN settled the rule thus:
"The principal contention in this case arises from the fact that by the instructions the court submitted to the jury the question whether or not the action is one under the initiative act adopted by the people in November, 1910, known as the employers' liability act (Laws 1911, p. 16), or under the common law liability. The evidence required and admissible under the common law liability and the application of it is very different from that under the statute. To determine whether the action is to be tried and decided under the one or the other was a law question to be decided by the court, and in leaving that question to the jury the court admitted evidence both as to facts that would create a liability under the statute and also evidence to establish a liability under the common law, and permitted it to determine whether the action was under the statute or under the common law liability and whether the evidence was applicable under the one or the other, thus allowing it to decide all the legal questions involved, without any indication as to what decision it should make thereon, and leaving no opportunity for either party to have the action of the jury thereon reviewed. * * Whether the jury determined these matters correctly cannot be known, and it was error for *Page 477 the court to submit to it the determination of the law questions involved."
In Poole v. Tilford, 99 Or. 585 (195 P. 1114), Mr. Justice BEAN construed the complaint as a matter of law to come within the provisions of the Employers' Liability Act, and on that ground upheld the Circuit Court in charging the jurors according to the statute and refusing to allow them to consider the common law in regard to the assumption of risk.
Preparatory to the discussion of who is entitled to sue on account of such a tort it is apropos to consider two other sections of the Code, reading thus:
Sec. 34. "A father, or in case of the death or desertion of his family, the mother, may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward."
Sec. 380. "When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed $7,500, and the amount recovered, if any, shall be administered as other personal property of the deceased person."
Except as to the amount which may be recovered under Section 380, these two sections have been in the same form since the Code of Civil Procedure was enacted in 1862. Manifestly the complaint cannot be adjudged sufficient under Section 34, for it is not disclosed that the father of the decedent is dead or had deserted his family, nor is it stated in the complaint that the mother is alive or dead or that there was a guardian for the decedent during her lifetime. *Page 478 Under that section there are only three persons who may commence an action, namely: the father, the mother or the guardian. This plaintiff does not profess to act in either of these three capacities, but only as administratrix of the estate of the decedent. The question naturally arises as to what is the effect upon Section 380 of the subsequent initiative legislation of 1910? It has been well said in several cases that the Employers' Liability Law has not repealed Section 380; Statts v. TwohyBros., 61 Or. 602 (123 P. 909). Under the Code of 1862 the whole question of damages for the death of a person was treated in the two Sections, 34 and 380. These are complementary of each other in that, together, they cover in their operation the whole span of a decedent's life. Section 34 relates to his minority and gives to the father or mother or guardian, as the case may be, a cause of action to recover an amount equivalent to what the minor would have earned during his minority and which would have accrued to the plaintiff in the action. Section 380 is intended to apply to the damage accruing to the estate which the decedent, considering his life expectancy and earning ability, would probably have left at his natural death and which, subject to his debts, would go to his heirs: Schleiger v. Northern TerminalCo., 43 Or. 4 (72 P. 324, 15 Am.Neg.Rep. 688).
The Employers' Liability Law has made a new classification of those who are entitled to bring an action for the death of a person brought about by reason of the shortcomings of a proprietor operating within the meaning of that statute. Instead of giving the probable earnings of a minor decedent to the father, mother or guardian, as under Section 34, or *Page 479 the probable value of an estate he might have laid up during a natural life to the administrator for the benefit of the creditors and heirs of the deceased, the Employers' Liability Law has prescribed a list of persons entitled to recover in the order named in the statute: First, the widow of the person so killed; second, his lineal heirs; third, his adopted children; fourth, the husband; fifth, the mother; sixth, the father, with the further provision:
"* * 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 their respective benefit in the order above named."
An administrator cannot state a cause of action under the Employers' Liability Law unless it shall be made to appear by the complaint that there is in existence, some relative of the decedent of those named in the statute who is entitled to sue and that such relative does not reside in this state. The defendant has a right to know from the facts stated in the complaint that his antagonist has the exclusive rights to the chose in action as stated. The mention of the statutory list and the order in which the beneficiaries are entitled to recover excludes and limits the general classification under Section 380. It was said by Mr. Justice BENSON in Niemi v. Stanley Smith Lumber Co., 77 Or. 221,234 (147 P. 532, 149 P. 1033):
"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 *Page 480 of Section 380, as long as any one of the beneficiaries named therein survive, since the terms of that section are general: * *
"It is conceded that there can be but one recovery; and therefore to hold that the one who first appeals to the courts may thereby bar the other would be to open the gates to an indecent scramble for precedence in beginning an action and would render it possible for a designing person to have himself appointed administrator of the decedent's estate even before the widow and orphaned children had learned of the calamity which had overtaken them."
In that case it was held also that this objection was not to be considered as the subject of a plea in abatement, but that it goes to the merits, and that the complaint "must not only state facts sufficient to entitle some one to recover, but must also show, upon its face, facts which disclose that the plaintiff is the one who is entitled to recover."
Again, the case of McFarland v. Oregon Electric Ry. Co.,70 Or. 27 (138 P. 458, Ann.Cas. 1916B, 527), treating of the Employers' Liability Law, holds that:
"* * the damages that are recovered in the action for the loss of life of a person killed by the act or omission of another is by Section 4 of the enactment given to the person or persons there specified in the order stated; that such beneficiaries `as the case may be' are the only persons who can maintain an action for the injury sustained."
Likewise in an opinion by Mr. Justice BEAN, writing about the same statute, in McClaugherty v. Rogue River Electric Co.,73 Or. 135, 161 (140 P. 64, 144 P. 569, we read that
"* * 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 *Page 481 living and in a position to bring the action, it cannot be brought by the personal representative of the decedent under Section 380, L.O.L."
In Wilcox v. Warren Construction Co., 95 Or. 125 (186 P. 13, 13 A.L.R. 211), it was held that:
"Under Employers' Liability Law, Section 4, as to action for loss of life due to negligence, the action is to be maintained directly by whatever beneficiary is entitled to sue, and not through any intermediary."
In Saylor v. Enterprise Electric Co., 106 Or. 421 (212 P. 477), Mr. Justice HARRIS descanted with his usual clarity on the initiatory enactment in question, and concluded his opinion thus:
"The whole history of the preparation, submission and adoption of the act and the language employed in the title and in the body of the statute make it plain that it is designated to protect employees and to give to them or their substitutes, and only to them, the right to prosecute under it an action for damages whenever injury or death results from a violation of it."
These precedents teach that the Employers' Liability Law is peculiar to itself and excludes the other two sections, 34 and 380, from any effect upon cases coming within its scope. True enough it has not repealed those sections in toto. It is easy to instance cases to which they apply where there is no element of the Employers' Liability Law present. An illustration might be drawn from almost any automobile accident resulting in loss of life.
Malloy v. Marshall-Wells Hardware Co., 90 Or. 303 (173 P. 267, 175 P. 659, 176 P. 589), relied upon to support the contrary view, does not teach that when a cause of action, the facts of which both as to parties and as to accident come within the scope of *Page 482 the act, any party plaintiff may at will abandon the remedy that statute provides and carry on litigation for the same injury under Section 34 or 380, Or. L. In opening the discussion of that subject in that case, Mr. Justice HARRIS uses this language:
"It is possible, although it is not necessary, to decide that the civil aspect of the statute in turn presents itself in two phases: One where the statute applies with all its incidents, and one when it does not."
What was said in that connection afterwards was arguendo and so far as that precedent is concerned leaves the question open. Moreover, all that was said there was in effect that a violation of the statute might possibly be such an act of negligence as would support an action in favor of someone not at all within the terms of the Employers' Liability Law. Several times it has been decided by this court that the violation of a public law is negligence per se and not merely evidence of negligence. It was in that view of the evidence that Mr. Justice HARRIS wrote, and it would naturally follow that anyone injured by the negligence might have a cause of action not governed by the statute in other particulars. For instance a builder erects in a public street scaffolding more than twenty feet high to be used in constructing a large warehouse abutting on the street line, but fails to secure it from swaying so that it falls upon and kills someone lawfully passing along the street. The Employers' Liability Law requires scaffolding to be thus secured. A violation of a statute is negligence per se as taught in Peterson v. Standard OilCo., 55 Or. 511 (106 P. 337, Ann.Cas. 1912A, 625); NorthwestDoor Co. v. Lewis Investment Co., 92 Or. 186 (180 P. 495);Emmons v. Southern *Page 483 Pac. Co., 97 Or. 263 (191 P. 333), and Marshall v. Olson,102 Or. 502 (202 P. 736). There would be no relation of employer and workman between the builder and the decedent, yet it is believed none would contend that the personal representative of the latter could not maintain an action against the former under Section 380, and for evidence of negligence in support of his complaint show a violation of the Employers' Liability Law by the builder in the matter of erecting his scaffold. The Malloy case is so explained by Mr. Justice HARRIS in Saylor v.Enterprise Electric Co., supra.
Of course, Sections 34 and 380 are not completely and entirely repealed, but when a later statute gives to other parties the cause of action that might otherwise arise under these sections, they are excluded by the operation of the new enactment. It cannot be the intent of the law that a defendant may be simultaneously harassed by several parties for the same cause of action, or that the privilege of litigation accrues to the benefit of the first plaintiff in the field, by whatever title he may claim. If, then, the chose in action is completely within the embrace of the Employers' Liability Law, it must be prosecuted by one of those named in that act in the order and under the conditions therein named. It does not belong to another: Wilcox v. Warren Construction Co., supra.
Under the circumstances detailed by the complaint the action is governed solely and exclusively by the Employers' Liability Law, and as stated in the McClaugherty v. Rogue River ElectricCompany case, "it cannot be brought by the personal representatives of the decedent under Section 380." There is no double *Page 484 remedy for the wrong described in the Employers' Liability Law. Under the facts as alleged the plaintiff must recover under that act or not at all. Particularizing as it does, the act excludes the general terms of Section 380, takes away from the administratrix of the general estate of the decedent this cause of action defined by the Employers' Liability Law, and fixes it upon one of those listed as set out in Section 6788, Or. L., in the order therein named. The only right which the personal representative of the decedent has to operate under that act is contained in the provision in Section 6788:
"* * 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 their respective benefit in the order above named."
The complaint says nothing about whether there are any such persons as those named in the list by whom the action might have been instituted or whether they reside within the State of Oregon. It is only under such conditions that the personal representative can maintain the action, and in order to enjoy this special right the plaintiff must plead the facts constituting the condition under which she operates. In other words, as taught in Niemi v. Stanley Smith Lumber Co., if the administratrix sues, she must be able to show, not only a cause of action in favor of someone, but also that she is the one of all those named in the statute that has the right to enforce it. To do this the complaint must state facts sufficient to eliminate all those in the list prior to the plaintiff. *Page 485
There are two objections to considering the question of the waiver by the mother of the decedent in this case. One is that the waiver affects only the person waiving the right. It cannot operate to confer a right in another that would not otherwise exist. In Wilcox v. Warren Construction Co., supra, it was ruled that if the cause of action under the Employers' Liability Law is not prosecuted by the one entitled to it in the order named in the list, the chose in action dies with that claimant and does not inure to the benefit of those farther down the list. The case was followed in Rorvik v. North Pacific Lumber Co.,99 Or. 58 (190 P. 331, 195 P. 163), in the opinion of Mr. Justice HARRIS on rehearing, where it was laid down and supported by many precedents that the cause of action arising out of the Employers' Liability Law for the death of an employee is not assignable. From this the conclusion is plain that the claim not being assignable by the affirmative act of a given beneficiary, nothing can accrue to anybody else by mere waiver or failure to act on the part of that beneficiary. The principle is not altered by the possible fact that the person who has taken out letters of administration is the mother of the decedent. The natural and the artificial persons are two distinct individuals. The rule of law is the same as if Jones or Brown had been appointed to administer on the estate of the deceased. The failure of a natural person to prosecute as a real beneficiary named in the list, and in the prescribed order there set out, is not cured by an action brought by an administrator unless it appears that the real beneficiaries do not reside in this state. *Page 486
Another objection is that in order to be effectual, the waiver must be pleaded in the complaint. As stated by Mr. Justice McCAMANT, in Mercer v. Germania Ins. Co., 88 Or. 410 (171 P. 412), —
"* * in an action on a contract plaintiff must prove a right to prevail under the contract unless he alleges in his complaint a waiver on the part of the defendant of some of the provisions of the contract or an estoppel to assert them as a defense." CitingHannan v. Greenfield, 36 Or. 97, 102 (58 P. 888); Young v. Stickney, 46 Or. 101 (79 P. 345); Bruce v. PhoenixCo., 24 Or. 486 (34 P. 16); Long Creek Building Assn. v.State Ins. Co., 29 Or. 569 (46 P. 366); Cranston v. WestCoast Life Ins. Co., 63 Or. 427 (128 P. 427); Waller v.City of New York Co., 84 Or. 284 (164 P. 959, Ann.Cas. 1918C, 139).
See, also, Star Sand Co. v. Portland, 96 Or. 323 (189 P. 217), and precedents there collated.
In brief, although the complaint states facts, which if true might be a chose in action in favor of someone, the administratrix has not shown that she is that one to commence the action. In view of the fact that the verdict of the jury was in favor of the defendant, it is no hardship to enforce the plain rule of the law that the administratrix has not shown herself entitled to act in enforcing the claim.
The judgment of the Circuit Court should be affirmed.
For these reasons McBRIDE, C.J., joins with me in dissenting. *Page 487