The principal question in this case is upon the constitutionality of the section of the Workmen's Compensation Law of this state, ORS 656.154, which prescribes the conditions under which a workman subject to the act, who suffers an injury due to the negligence or wrong of a third person not in the same employ, may seek redress against such third person. This section, with some modifications, has been a part of the compensation law since its enactment in 1913 (Oregon Laws 1913, ch 112, § 12). Its constitutional validity was once before questioned, but on a different ground than that taken by the plaintiff here. See Atkinson v. Fairview Dairy Farms, 190 Or. 1, 13, 222 P.2d 732.
The section reads:
The plaintiff filed his complaint alleging that he was an employee of a firm of architects engaged in the inspection of construction of a new high school building in Salem, and that the defendant was the general contractor for such construction; that the plaintiff was required to inspect the work of the defendant while it was engaged in pouring concrete into forms set up for that purpose, and to work in and around the place where the defendant was pouring concrete, and in and around the machinery being operated by the defendant; and that, as a result of the defendant's negligence in the operation of a motor-driven crane with a long boom thereon, a bucket full of concrete, which was suspended from the boom, swung out of control and struck the plaintiff, knocking him down and injuring him.
Included in defendant's answer to the complaint is a supplemental answer, as provided for by ORS 656.324 (3) which reads as follows:
Plaintiff demurred to the supplemental answer on the ground that it did not state a defense, and appended to his demurrer a notice that in presenting it he would rely on §§ 10, 17 and 20 of the Oregon Constitution and Grasse v. Dealer's Transport Co., 412 Ill. 179, 106 N.E.2d 124, and Kleinschmidt v. Matthieu Estate, 201 Or. 406, 266 P.2d 686.
Plaintiff's constitutional challenge is on narrow ground. He says that the statute discriminates in favor of a workman who is injured through the negligence of one who is not subject to the compensation law and against a workman who is injured through the negligence of one who is subject to the compensation law. If the other conditions of the statute are fulfilled, the former may seek redress against the tort feasor in a common-law action, but the latter is limited to his remedy under the compensation law. This, it is urged, constitutes a violation of Art I, § 20, Oregon Constitution.
The Workmen's Compensation Law of this state was enacted for the purpose of correcting recognized evils inherent in litigation between employees and employers on account of injuries sustained by workmen.
See, also, Roles Shingle Co. v. Bergerson, 142 Or. 131, 135, 19 P.2d 94.
Compensation laws of other states, more far reaching than ours because they are obligatory upon both employers and employees in hazardous occupations, whereas the Oregon act gives the employer an election not to be subject to it (ORS 656.024), have been sustained by the Supreme Court of the United States. Mountain Timber Co. v. Washington, 243 U.S. 219, 61 L ed 685, 37 S.Ct. 260, Ann Cas 1917D 642; New York Central R.R. Co. v. White, 243 U.S. 188, 61 L ed 667, 37 S.Ct. 247, Ann Cas 1917D 629. He would be bold, indeed, who would today question the power of the legislature to enact this type of legislation.
ORS 656.154, which is referred to by counsel as the immunity clause, has been construed and applied in a number of cases by this court, the most recent of which is Hensler v. City of Portland, 212 Or. 28, 318 P.2d 313. The others are: Johnson v. Timber Structures, Inc., 203 Or. 670, 281 P.2d 723; Kosmecki v. Portland Stevedoring Co., 190 Or. 85, 223 P.2d 1035; Atkinson v. Fairview Dairy Farms, supra; Brown v. Underwood Lumber Co., 172 Or. 261, 141 P.2d 527; Inwall v. Transpacific Lumber Co., 165 Or. 560, 108 P.2d 522.
1-3. The controlling principles which guide the courts in determining questions of alleged unconstitutional discrimination or class legislation are the same whether it is the equal protection clause of the Fourteenth Amendment of the Constitution of the United States which is invoked, or the privileges and immunities provision in Art I, § 20 of the Oregon Constitution. Fundamentally, classification is a matter committed to the discretion of the legislature and the courts will not interfere with the legislative judgment unless it is palpably arbitrary. The decisions of this court and the Supreme Court of the United States upon the subject are reviewed in State of Oregon v. Pirkey, 203 Or. 697, 281 P.2d 698, and Savage v. Martin, 161 Or. 660, 694, 91 P.2d 273.
In the recent case of Hand v. Greyhound Corporation, 49 Wn.2d 171, 299 P.2d 554, an immunity clause of the Washington Compensation Law similar to that in the Oregon law was sustained as against a claim by an injured employee of denial of equal protection of the laws. Long prior to this decision the Supreme Court of the United States in Northern Pacific Railway Co. v. Meese, 239 U.S. 614, 60 L ed 467, 36 S.Ct. 223 (1916), summarily rejected the identical contention with respect to the Washington statute. The Court of Appeals for the 9th Circuit announced a similar ruling on the authority of the Meese case in Williamson v. Weyerhaeuser Timber Co., 221 F.2d 515.
Counsel for plaintiff would distinguish these cases because in Washington all employers engaged in what
Cf. Matheny v. Edwards Ice Machine & Supply Co., 39 F.2d 70 (9th Circuit).
Plaintiff's reliance is on Grasse v. Dealer's Transport Co., supra, 412 Ill at 196. This decision was considered at length by the Washington court in Hand v. Greyhound Corporation, supra, and distinguished because of marked differences between the Illinois and Washington statutes which are likewise found between the Oregon and Illinois statutes. Another point of distinction not referred to by the Washington court is apparent from the following language taken from the opinion in the Grasse case: "The sole basis for differentiation, as far as the injured employee is concerned, is a fortuitous circumstance — whether the third party tortfeasor happens to be under the act." Under the Oregon statute the so-called "fortuitous circumstance" is not the sole basis of differentiation, but in addition there is the requirement of joint supervision and control by the third party and the employer of the injured workman of the premises where the injury occurred. This provision, as we have seen, has an important bearing on the question of the reasonableness of the classification. If, however, it could be said that the Illinois decision is indistinguishable, then this court would refuse to follow it, if for no other reason than that it would be in conflict with Northern Pacific Railway Co. v. Meese and Williamson v. Weyerhaeuser Timber Co. It is worthy of note that the immunity section of the Washington statute, as it read when it was sustained by the Supreme Court of the United States in the Meese case, permitted an action to be brought against a negligent third party only where the
We are of the opinion that the plaintiff's contention here is equally devoid of merit.
4, 5. Apparently as an afterthought, counsel for plaintiff argue that, even though the statue be constitutional, still the supplemental answer fails to state facts sufficient to bring the case within the protection of the statute. The answer alleges, in substance, that the defendant was the contractor engaged in the construction of a new high school building, and the plaintiff's employer was the architect on the same job; that both employers were subject to the Workmen's Compensation Law; and that at the time of the alleged accident plaintiff was on premises over which his employer and the defendant had joint supervision and control by reason of the facts just stated. The supplemental answer is aided by allegations of Paragraph II of the complaint (which are admitted by the answer), that
6, 7. Counsel for the plaintiff also suggest that, even though the judgment should be affirmed, this is a proper case to remand to the circuit court so that the question of joint supervision and control may be determined as one of fact. Coblentz v. State Ind. Acc. Com., 203 Or. 258, 279 P.2d 503, is cited as a precedent for such a course. Where the plaintiff stands on his demurrer to an answer after it has been overruled and refuses to plead over, and allows judgment to be entered against him on the pleadings, the general rule is that, if the judgment is affirmed on appeal, that is the end of the case. The same rule is applicable where a party refuses to amend after a demurrer to his complaint is sustained. That is what occurred in the Coblentz case. We did not follow the general rule there because of "peculiar and exceptional circumstances." 203 Or at 267. These were that the plaintiff, by concession of the attorney general, was probably entitled to compensation under the Workmen's Compensation Law, and that the attorney general recommended
The judgment is affirmed.