COSHOW, J., Dissenting.

This action was instituted to recover damages under the Employers' Liability Act. The plaintiff sustained an injury while working for the defendants under circumstances clearly bringing him within the terms of the Employers' Liability Act. The question involved directly at this time is whether or not the defendant, West Oregon Lumber Company, is liable to the plaintiff. The allegations of the complaint, under which the plaintiff seeks to recover from the defendant and bearing directly upon the issues under consideration, are as follows:

"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 the rope herein described which failed to sustain the scaffold, causing plaintiff's injury, was furnished by the defendant West Oregon Lumber Company, and said defendant lumber company also directed the plaintiff to do said dock work and directed plaintiff and his fellow employees in the work in and about the premises, what work to do, and how it should be done. That the defendant Severin Synnes instructed the plaintiff and his fellow employees to do the repair work in and about said premises and said dock, and to follow the instructions of said lumber company and to use the material furnished by the West Oregon Lumber Company and said West Oregon Lumber Company was engaged in and had charge of the construction and repair of said dock, which was work involving risk and danger to plaintiff and his fellow employees, and furnished all of the materials, appliances, equipment and tools used there except carpenter's small hand tools and defendant Severin Synnes instructed plaintiff to use the materials, appliances, equipment and tools so furnished by defendant lumber company, and 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 defendant Severin Synnes having employed him to do the repair work at said dock.

"That defendants and each of them were negligent herein in not furnishing the plaintiff a safe place to work and in requiring and allowing the use of an improper and unsuitable rope in the construction of said scaffold, and in failing to use every device and precaution for the protection of plaintiff, and in failing to test the material furnished in building the scaffold."

The defendants answered separately and were represented by different counsel. A verdict was rendered in favor of the plaintiff and against both of the defendants. The defendant, West Oregon Lumber Company only, appeals.

Among other allegations, and in the further and separate answer and affirmative defense, the appellant alleges that the plaintiff was in charge of the gang of men at the place and time of the accident; that the said plaintiff and his fellow-workmen had been instructed to do whatever was necessary to make the place where they were working safe, and to make the said dock safe, and it was the plaintiff's duty at the time of the said accident to build all proper and sufficient scaffolds and to do whatever was necessary to make his position safe.

"That this defendant informed said Synnes and the said plaintiff and his fellow workmen that they were allowed to use any material for the doing of said work and the construction of said scaffolding that might be found about the mill or plant of this said defendant and the right and power of selection of all said materials to be used in said construction was left to the said plaintiff and his fellow workmen and this defendant has been informed and believes that the particular staging that fell was built by the plaintiff himself. * *

"This defendant had nothing to do with the erection of said staging and was only interested in seeing that when the work was finally completed by the men employed by the said defendant, Synnes, it was safe, substantial and proper as a completed whole but that in the manner of the construction and in the erection of scaffolds and the details of said work, this answering defendant had nothing to do therewith and that the same had been left to the said plaintiff and his fellow-workmen."

It is further alleged in the said answer that the accident complained of was due to the recklessness, negligence and carelessness of the plaintiff.

"That the said plaintiff was a carpenter and that the said carpenters furnished all of their tools for doing the work in which he was engaged at the time of said accident and that at all times about the work where the plaintiff was working at the time of said accident, there were a sufficient number of nails, spikes, lumber and everything necessary for the purpose of making a safe and substantial staging but that the plaintiff failed to use the same or a sufficient amount thereof to make said staging safe or to make fast the said staging so that it would not fall, although it was the duty of the said plaintiff to make the said staging safe and that as a result of the negligence of the said plaintiff the accident complained of herein happened."

The defendant Synnes alleges in his further and separate answer in part as follows:

"That plaintiff herein, together with the other mechanics and laborers supplied by defendant, Severin Synnes, to the West Oregon Lumber Company at the time when the accident occurred complained of in plaintiff's amended complaint were each and all instructed by defendant, Severin Synnes, to report at the plant of the West Oregon Lumber Company to the superintendent or head millwright of said company and there learn from said superintendent or head millwright what work was required and the manner of performing the same and that said West Oregon Lumber Company did supply all material and appliances necessary for the performance of any and all work to be done.

"That plaintiff, W.C. Warner, was well familiar with the plant of the West Oregon Lumber Company and the manner of directing the work by the representatives of said West Oregon Lumber Company, said Warner having been employed by said Synnes and said Lumber Company in a similar manner and under the same plan a greater number of times prior to the month of January, 1922, and that such previous employment was similar and on the same terms as the employment during January, 1922.

"That defendant, Severin Synnes, supplied said labor to said West Oregon Lumber Company in the month of January, 1922, with the understanding that said West Oregon Lumber Company was to supply all material, appliances and paraphernalia necessary for the work required to be done and the said Severin Synnes was not required to be on, and was not on, said job on January, 1922, did not supervise or direct the work performed by plaintiff or the other men supplied to the West Oregon Lumber Company in January, 1922, and did not instruct any of his workmen or plaintiff herein what to do or how to perform any of the work required and had nothing to do with the work performed by plaintiff for said West Oregon Lumber Company, except to procure plaintiff to do said work and paying plaintiff therefor, all of which facts were well known and understood by plaintiff long before and at the time of the alleged happening of the accident complained of in plaintiff's complaint.

"That plaintiff and his co-employees engaged by Synnes knew that defendant, Severin Synnes, was not contracting for said work in January, 1922, but was merely supplying the hands for the performance of any work required to be done by the West Oregon Lumber Company at its plant near Linnton, Oregon, and that said company was to direct the workmen and was to supply all material needed to execute any and all work required and that defendant, Severin Synnes, was not to supervise, superintend, direct or control said workmen or work, and that he did not act in any supervisory or other capacity in any of the work performed at the time or prior to the occurrence of the accident complained of in plaintiff's complaint."

The defendant, Synnes, further alleges that the plaintiff was an experienced workman, understood the construction of scaffolds, and charges the accident to the negligence of the plaintiff in the manner of constructing the scaffolding or staging, which fell, causing the accident complained of.

The essence of the controversy is the identity of the party or parties responsible to the plaintiff for the defective material used by him, resulting in the accident he suffered.

The question as to whose duty it was to furnish the material necessary for doing the work for the defendant was one of the main issues tried in the Circuit Court. Both defendants sought to place the blame for the accident on the plaintiff. The defendant, Synnes, alleges in his affirmative answer and deduces evidence supporting his allegations to the effect that his sole obligation, in his contract with the defendant lumber company, was to furnish competent carpenters to do the work under construction by the company. The defendant lumber company contends that it contracted with the defendant, Synnes, to accomplish a certain work. The defendant lumber company substantially admits that it undertook to furnish the material for that work. It contends that the material it undertook to furnish was not to be furnished directly to the workmen, but to their employer, the defendant Synnes. This controversy was submitted to the jury and by it resolved in favor of the plaintiff. The jury's verdict in effect, in the light of the pleadings and the evidence, is that the defendant lumber company had immediate charge and supervision of the work; that the plaintiff was an employee of the defendant Synnes; that it was the duty of the defendant lumber company to supply and test the material used in the work, and that having failed to supply proper and suitable material, it was liable to the plaintiff.

One of the incidental matters of controversy was as to the capacity of one Knapp, a coemployee of the plaintiff. The plaintiff testified that Knapp was foreman of the workmen and had charge of them during the progress of the work. Knapp himself, as a witness for the plaintiff, partially corroborates this testimony. He testified that he was never appointed foreman by Synnes and received no extra compensation for the added responsibility of being foreman. The officers of the defendant lumber company testified that Knapp was the foreman of the men employed by Synnes to do the work for the company. The defendant Synnes positively denied that Knapp was his foreman. One of the jurors, in the course of questions propounded to the witness Knapp regarding his capacity, asked him directly if he received any compensation for serving as foreman, to which question the witness Knapp said he did not. The verdict of the jury, in effect, fixes the capacity of Knapp either as an ordinary employee of the plaintiff, or as foreman by virtue of his recognition, if not by appointment, as such by the defendant lumber company. The evidence in this behalf is, in part, as follows:

Mr. Knapp, being recalled as a witness in behalf of the defendant Synnes, testified as follows:

"Q. While there (referring to the place where the accident occurred) is it a fact or not a fact that men were used out of Synnes' men without any application to you? A. Yes, sir, I have known it, yes, sir.

"Q. Did you or the mill company's representative * * order Warner here to go on this job where the accident happened? A. It was the company.

"Q. The company's men? A. Yes.

"Q. Did they ask leave of you? A. They did for Warner, yes, sir; that is all.

"Q. How? A. They did for Mr. Warner.

"Q. What did they say to you about it? A. Well, they said — that is, the superintendent of the mill there, he said Mr. Kingsley wanted him over there because he could get along better.

"Q. He wanted Warner over there? A. Yes, sir.

"Q. Now, how did Johnson get over on that job? A. I don't know.

"Q. Did anybody make application for you to put Johnson on that scaffold? A. No, sir."

Johnson was working with plaintiff when the injury was received by him.

On cross-examination, on behalf of the defendant lumber company, this witness further testified:

"Q. You say someone, the superintendent of the mill, asked you or said that Mr. Kingsley would like to have Mr. Warner? A. Yes.

"Q. How did he come to speak to you about it? A. Well, I don't know. I don't know. * *

"Q. How do you suppose they came to tell you about it? A. Well, it seemed as though they used me as a kind of a foreman, that is all. I never had any instructions as far as being a foreman around there, as far as that, but it seems as though I understood the work and they used me that way. I didn't have no orders from either side, but —

"A Juror: May I ask him a question?

"The Court: Certainly.

"The Juror: Are foremen paid more than the regular workmen? A. Well, supposed to be.

"The Juror: Did you get more pay than the other men? A. I don't think so. I don't know. I didn't know what they were getting.

"The Juror: You don't know what you got, and you don't know what they got?

"A. No, I don't know what they were getting.

"The Juror: But it is the custom for being paid extra for added responsibility for being foreman? A. I suppose so, but I don't think they paid me any. * *

"The Court: What were your duties there, Mr. Knapp? A. Well, I used my tools the same as the rest of the men.

"The Court: Did you keep track of the time of the men? A. No, sir.

"The Court: Or their rate of pay — A. (Interrupting.) I supposed every — I think everyone kept their own time, the best I know.

"The Court: Did you discharge anybody? A. No, sir.

"The Court: Did you hire anybody? A. No, sir.

"The Court: From whom did you get your instructions? A. I got it from the mill, from the mill man there, the one that was in charge."

On further cross-examination in behalf of the defendant lumber company, Mr. Knapp testified as follows:

"Q. Why did Mr. Warner say when he came out on the job that he reported to you? A. I don't know.

"Q. In other words — let's get right down to it — do you want to tell this jury that you don't think you were the foreman out there of the Synnes crew? Now, were you, or were you not? Let's get right down to cases. * *

"A. Yes, but as far as having orders from anybody, either one of those parties, I never had no orders to take charge of these men at all but, as I say, I understood the work very well, and they seemed to like my work, and all of that, and they looked to me to kind of go ahead, and that is all the instructions I ever had.

"A Juror: Well, you worked there, did you? A. Yes, I worked, I say I did; yes, sir.

The defendant Synnes as a witness in his own behalf, on direct examination testified, in part, as follows:

"Q. What was the contract as regarding your supervising the performance of your men? A. There was no contract to supervise the work.

"Q. Well, was there a contract not to supervise? A. There was a contract — no, not to supervise it; no there wasn't it either way.

"Q. It wasn't either way? A. Well, there was no contract.

"Q. Well, was there anything said by Mr. Kingsley — did Mr. Kinglsey say anything to you regarding our supervising the work? A. No.

"Q. What was you to do with these men? A. Send them to the mill and report to someone at the mill who were in authority by the mill.

"Q. Who was in authority at the mill? A. I don't know who was superintendent at this time, but in many other times I can recall special times when they were — I were told to send men and report to Charlie Traffe, which testified here, or to some other man in charge at the West Oregon Lumber Company.

"Q. But at this time you were instructed to have them report to the superintendent? A. At the superintendent of the mill. * *

"Q. And did you have any agreement or arrangement with Mr. Kingsley as to providing any heavy tools, sheaves or blocks, or any other of heavy tools outside of the carpenter tools that the men had themselves? A. No agreement that he testified. * *

"Q. Well, did you ever have any — or make any request of Mr. Kinglsey while making this contract for him to loan you some tools for his own work? A. No, sir.

"Q. Were you on this job at all during the month of January in a supervisory capacity? A. Never.

"Q. Did you have any direction or control over the men? A. No.

"Q. Did you designate to Mr. Kingsley, the superintendent of the mill, the millwright, or anyone else, any man representing you as foreman on the job? A. No, it was asked of me to supply men according to that work which was to be done that is all.

"Q. Now, did you have anybody there representing you as foreman to conduct this work? A. No; not day work.

"Mr. Beckett: What was it? A. Not day work, or Force Account. * *

"Q. Did you have any conversation with Mr. Kinglsey or his representative about who was or was not foreman of the Synnes men? A. No. * *

"Q. I think you have testified already that you were not on the job and had nothing to do with the (pauses) to your knowledge were any of the men hired by you for the mill company discharged by the mill company without your knowledge —

"A. (Interrupting.) Yes.

"Q. (Continuing.) — or instruction? A. Yes.

"Q. State to the jury how that discharge came about, and how you learned of it? A. One man by the name of George Hermann came to me and told me he was fired, and I asked him who fired him, and he said Kingsley, and I asked him why, because I thought he was a good man, and he says because he said he was — he thought he was slow, or didn't know, rather.

"Q. Did you have any conversation with Mr. Kingsley regarding this man? A. I had conversation with him after this time. I asked him about it and I made reference to this man as being one of my best men. I spoke to Mr. Kingsley about it, that he was one of my best men, and, well, he said he didn't want him, was the answer."

Mr. Synnes further testified on cross-examination on behalf of the defendant lumber company as follows:

"Q. Well, if you didn't have anything to do with these men, do you want to convey the impression to the jury that these men were not working for you; is that what you are trying to do? A. I supplied the men to the West Oregon Lumber Company. * *

"Q. Well, were they or were they not working for you? * * A. My idea is — if I didn't have the idea they were working for the West Oregon Lumber Company I wouldn't be here.

"Q. You don't think they were working for you? A. No.

"Q. Why did you pay them? A. Because there was an agreement that I should have so much, that I should have those men down there at day work, but they were absolutely in charge of the West Oregon Lumber Company. * *

"Q. You were carrying on contracts other places in the city at this time, weren't you? A. I think I was. * *

"Q. And what do you think whether Mr. Knapp was the foreman out there? What is your idea about it? Do you think he was the foreman of these men or not? A. The only reason I know of why Knapp was down there was this, that Charley Traffe asked me if he couldn't have Mr. Knapp down there. Mr. Charley Traffe asked me if he could not have Knapp, — he was a good man.

"Q. What did you say? A. I told him he could have him.

"Q. Was there anything about having him as foreman? A. There was no mention about foreman, not a mention of a word about foreman. He just asked me if he couldn't have Charley ( sic) Knapp.

"Q. Didn't you say anything about having charge of the work? A. No.

"Q. Didn't use the word `foreman' or say anything about having charge of the work? A. No; not a word of it mentioned.

"Q. So you say that you had — you employed these men and sent them down there, and you paid them, and yet you say that you had no supervision over them, no control over them, no foreman in charge, and no power to discharge them? That is what I understand you to say? A. Well, I had no power over them so long as they were under the West Oregon supervision.

"Q. Well, just answer that question. Is that true or not? Read it to him again, Mr. Reporter. * * A. Yes.

"The Court: If you want to make any explanation, go ahead and make it. A. For this reason, that I wasn't there; I didn't go there. I sent the men which they asked for, and if they was through they told me that they didn't need them any more, or told some one else, and the men came in without me telling them anything; the men came in in bunches without me telling them anything. They were just laid off."

The witness Synnes, on cross-examination in behalf of the plaintiff, testified as follows:

"Q. Mr. Synnes, you had the right to fire these men that went down to the — that you sent down to the West Oregon Lumber Company mill, didn't you, or take them off and put them on other work that you were doing? A. If the men should be removed from the work I would ask Kingsley for permission to take them away.

"Q. And did you take some of them away during the month of January, 1922. A. No, they were sent home by the company.

"Q. I mean the men that you sent down to the West Oregon Lumber Company. A. Yes.

"Q. Did you take any of them off of that job and put them on other work of yours? A. No; most of them was laid off.

"Q. Most of them were laid off? A. Yes, some men I retained on contract, work which I had otherwise. * *

"Q. Did Mr. Kingsley have the right to fire them down there? A. He did. He did lay them off, — either him or his authority. * *

"The Court: How did you determine what to pay these men? A. Well, generally, as most of those men has been working for me previous to this time, I concluded about what they were worth.

"The Court: Well, that is the rate of pay you agreed with the men upon, but how did you know how much time they put in? A. They ring the clock at the West Oregon Lumber Company at this particular time; they were ringing the clock down there.

"The Court: Well, counsel asked you when you went down there to get your divvy if you got some sort of a sheet — is that it — from the West Oregon Lumber Company. What was your question there, Mr. Beckett, about that?

"Mr. Beckett: I don't know. He said the men, though, kept their own time. A. At this particular time it was kept by a clock, ringing in on the clock at the West Oregon Lumber Company.

"The Court: Well, had you made a different contract for this work than for other work that you had been doing there during the years past? A. No, no other, no special contract, any more than the same thing was going on for years, the same work. The same to-day, — to-day, the same to-day as it was ten years ago.

"The Court: And did you submit a bill to the company for the wages of the men or did they tell you what was coming to them? A. There was times when I submitted a bill to them.

"The Court: I mean in this particular case? A. In this particular case I did not submit a bill, because the time was rung in, and I didn't have anything to do with it. * *

"Q. (By Mr. Alexander.) Did the lumber company, then, furnish you with a statement as to the time the different men had worked? A. Yes.

"Q. And paid you accordingly, and you in turn paid them? A. Well, they paid me; they paid me, and I paid the men."

The capacity in which said Knapp was working, at the time of the accident, is material only in determining who was in charge of the men at the time of the accident. It is alleged in the complaint that the plaintiff and his coemployees were directed by their employer Synnes to do the repair work of the defendant lumber company; that the defendant lumber company had immediate charge and supervision of the work; that the employees were to receive and take their orders from the officers of the defendant lumber company, and that the defendant lumber company was to furnish the appliances and material.

It is the settled law of this state that the owner or contractor cannot delegate his duty to furnish safe and suitable appliances and safe and suitable places to work: Askatin v. McInnis Reed Co., 67 Or. 320, 323, 324 ( 135 P. 322). If it was the duty of the defendant lumber company to furnish to the employees of Synnes, while working for the defendant lumber company, the necessary material and appliances for accomplishing the work, that duty could not be delegated either to Knapp or to Synnes by the defendant lumber company: Cauldwell v. Bingham, 84 Or. 258, 266, 267 ( 155 P. 190, 163 P. 827).

There is evidence to support the allegation in the complaint and in the answer of the defendant Synnes that the defendant lumber company exercised charge and supervision of the work. There is evidence that the plaintiff himself was chosen by an officer of the defendant lumber company for the particular work in which the plaintiff was injured; that the plaintiff was placed at that work by request of the defendant lumber company made to the plaintiff through the witness Knapp. There is evidence that the defendant lumber company, through its proper officers, at other times, directed the workmen what to do, and went so far as to discharge one of the employees of the defendant Synnes. The defendant Synnes testified that the man discharged was one of his best workmen; that he inquired of the officer of the defendant lumber company, who discharged said workman, why he discharged him, and was told that he (the said officer) did not want him. In the light of this testimony under the issues framed by the pleadings the writer believes that the liability of the defendant lumber company was a question of fact to be determined by the jury. The theory of the plaintiff is that the defendant lumber company is liable to him, not because he was an employee of the defendant lumber company, but because he was working for the benefit of that company as the owner under terms of employment whereby it was the duty of the company to furnish safe appliances and suitable material for the work.

It was stipulated near the close of the trial that the plaintiff was not an employee of the defendant lumber company so as to bring him within the provisions of the Workmen's Compensation Act. This question arose during the course of the trial and the defendant lumber company requested permission to file an amended answer pleading the Workmen's Compensation Act as a defense. That motion was renewed near the close of the taking of testimony, and it was stipulated that the plaintiff was the employee of the defendant Synnes and not an employee of the defendant lumber company. If, therefore, it was necessary for the plaintiff to have been an employee of the defendant lumber company in a general sense in order to recover in this action, this stipulation would preclude his recovery from the defendant lumber company under the provisions of the Employers' Liability Act.

But this court has repeatedly held that an injured employee may recover from the owner for an injury received in the course of his employment as a result of the owner failing to comply with the provisions of the Employers' Liability Act. This court, in the case of Saylor v. Enterprise Electric Co., 106 Or. 421, 436 ( 212 P. 477), heard in bank, in a well-considered opinion by Mr. Justice HARRIS, uses this language:

"In Rorvik v. North Pacific Lumber Co., 99 Or. 58 ( 190 P. 331, 195 P. 163), we ruled that where an employee of one corporation is injured or killed by the failure of another corporation employer, although not an employer of the one injured or killed, to use the precaution required by the Employers' Liability Act, the employee or his beneficiary could maintain an action against the culpable employer under the provisions of the Employers' Liability Act. The opinion in Clayton v. Enterprise Electric Co., 82 Or. 149 ( 161 P. 411), is authority for the same doctrine; and a statement in Turnidge v. Thompson, 89 Or. 637, 653 ( 175 P. 281), is an approval of the doctrine."

This rule has become the settled law of the state. It follows, therefore, necessarily, that the plaintiff is not precluded from recovering from the defendant lumber company merely or solely because he was not its employee. We also opine that the fact that the defendant was an independent contractor of itself does not necessarily preclude the plaintiff from recovering from the defendant lumber company in this action. We are not now concerned with the liability of the defendant Synnes. He has not appealed. And for that reason his liability is fixed. Whether or not the defendant lumber company is liable depends in a large measure upon its contract with the defendant Synnes. If by the terms by which the work was being done at the time of the injury it became the duty of the defendant lumber company to direct the manner of doing the work, to exercise charge and supervision over the workmen, and to provide the material with which the men were to work, then the company would be liable, notwithstanding the defendant Synnes may have been an independent contractor for the purpose of supplying the laborers. Our understanding of the Employers' Liability Act is that the person, whether artificial or natural, whose duty it is to supply the material and exercise supervision over the workmen, is responsible for the material furnished. The statute was intended to protect workmen engaged in hazardous occupations. Its provisions are broad enough to include every person whose duty it is to supply the material with which the men perform their work or use in accomplishing the result desired. The person who has immediate charge and supervision of the work must provide a safe place for the workmen to work. The language of the statute is:

"All owners, contractors, subcontractors, corporations or persons whatsoever, engaged in the construction, repairing, alteration, * * of any building * * or other structure * * shall see that all metal, wood, rope, * * or other material whatever, shall be carefully selected and inspected and tested so as to detect any defects * *: and generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving risk or danger to the employees * * 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, * * and without regard to the additional cost of suitable material or safety appliance and devices." Section 6785, Or. L.

Upon the person having the immediate charge and supervision of the work and whose duty it was to supply the material for the work, rests the obligation of complying with this statute. If it was the duty of the independent contractor to exercise control and supervise the work and supply the material used in accomplishing the result desired, then, the independent contractor alone would be responsible to a workman injured by a violation of the statute. On the contrary, if by the terms of employment, or the provisions of the contract, it was the duty of the owner to supervise the means of producing the result, to exercise control of the workmen and supply material used in attaining the result, then, the owner is liable to any workman injured by a violation of the statute. We believe that the decisions of this court have construed the Employers' Liability Act so as to place the responsibility for injury, resulting in a violation of the act, upon the person whose duty it was to perform the things commanded by the act. Tamm v. Sauset, 67 Or. 292 ( 135 P. 868, L.R.A. 1917D, 988), enunciates that rule in the following language in page 297 of the official report:

"To take up the case in hand, the Employers' Liability Act particularizes the class, such as owner's, contractors, subcontractors, corporations or persons whatsoever engaged in certain activities shall see that the materials employed and the appliances used are carefully selected, inspected and tested, so as to detect any defects. The evident intent of the statute was to hold responsible, for personal injuries to an employee, only that member of the class enumerated who was engaged in the undertaking or enterprise embraced in the statute whereby the injury occurred. To conceive otherwise would be going wide of the rule established by this court in the case of Lawton v. Morgan, Fliedner Boyce, 66 Or. 292 ( 131 P. 314, 134 P. 1037). The initiative act does fix a high standard of care, a violation of which is negligence per se, but lays the care to the door of the person having the work in charge, and in consequence thereof the application of the enactment must be circumscribed to that particular source from which or from whom authority and control of the instrumentalities and individuals emanate."

In the Tamm v. Sauset case, Sauset was the principal contractor and had sublet a part of the work to other parties. The other parties had immediate charge of the work and were in the actual operation of the appliances when the plaintiff Tamm received his injury. Sauset did not interfere in any way with the operation being conducted by his subcontractor. For that reason Sauset was not liable for injuries resulting from improper exercise of care by the subcontractor. As stated in the excerpt in the opinion last cited, Sauset was not liable because he owed no duty to the plaintiff. With regard to the work in which plaintiff was engaged while injured, the subcontractor owed that duty to the plaintiff. To the same effect is the case of Lawton v. Morgan, Fliedner Boyce, 66 Or. 292 ( 131 P. 314, 134 P. 1037). The same principle is announced in Harvey v. Corbett, 77 Or. 51 ( 150 P. 263). In the last-mentioned case the defense of an independent contractor was pleaded. It was there held that the alleged independent contractor was an agent and for that reason the defendant Corbett was held liable for the accident. It was so ruled because of the provisions of the contract between the defendant Corbett and the Hurley-Mason Company: See, also, Fisher v. Portland Ry., L. P. Co., 74 Or. 229, 233, 235 ( 137 P. 763, 143 P. 992, 145 P. 277).

The liability of the defendant lumber company in the instant case depends largely, if not altogether, upon the terms of the contract between it and its codefendant. The contract was not in writing. It was very indefinite. The evidence concerning its terms is conflicting. The allegations of the complaint, in part, directly bearing upon the issue under discussion, is as follows:

"That the defendant Severin Synnes instructed the plaintiff and his fellow employees to do the repair work in and about said premises and said dock, and to follow the instructions of said lumber company and to use the material furnished by the West Oregon Lumber Company and said West Oregon Lumber Company was engaged in and had charge of the construction and repair of said dock, * * and furnished all of the materials, appliances, equipment and tools used there except carpenter's small hand tools and defendant Severin Synnes instructed plaintiff to use the materials, appliances, equipment and tools so furnished by defendant lumber company, and 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 defendant Severin Synnes having employed him to do the repair work at said dock."

It therefore clearly appears that under the rule announced in Tamm v. Sauset, above, the defendant lumber company, being engaged in the work, having immediate charge thereof, and having furnished the material and appliances, is clearly liable for any negligence of either commission or omission on its part.

There was evidence adduced substantially supporting the allegations of the complaint quoted above.

The further and separate answer of the defendant lumber company alleges:

"That this defendant informed said Synnes and the said plaintiff and his fellow workmen that they were allowed to use any material for the doing of said work and the construction of said scaffolding that might be found about the mill or plant of this said defendant and the right and power of selection of all of said materials to be used in said construction was left to the said plaintiff and his fellow workmen and this defendant has been informed and believes that the particular staging fell, referred to in the complaint herein, was built by the plaintiff himself, * *"

The defendant Severin Synnes in his affirmative and separate answer alleges:

"That defendant, Severin Synnes, supplied said labor to said West Oregon Lumber Company in the month of January, 1922, with the understanding that said West Oregon Lumber Company was to supply all material, appliances and paraphernalia necessary for the work required to be done and the said Severin Synnes was not required to be on, and was not on, said job on January, 1922, did not supervise or direct the work performed by plaintiff and the other men. * *"

In view of the allegations of the party plaintiff and parties defendant, the fact that the contract between the defendant lumber company and Synnes was not in writing, and the conflicting testimony regarding the terms of that contract, the question of the liability of the defendant was one of fact to be submitted to and determined by the jury. If it was the duty of the defendant lumber company to supply the material and appliances and to supervise and control, not only the work as to its result, but the manner of its performance, then, it was liable for any neglect in performing that duty.

"It is frequently asserted that whether the relation of master and servant exists in a given case is usually a question of fact. Where the contract is oral and the evidence is conflicting, or where the written contract has become modified by the practice under it, the question as to what relation exists is for the jury under proper instructions. If the contract is oral, and if more than one inference can fairly be drawn from the evidence, the question should go to the jury whether the relation is that of employer and independent contractor or that of master and servant. If, for example, the evidence does not show clearly that A's servant has been put, for the time being, under the control of B, a question of fact for the jury, as to whether A or B is the master, seems to be presented. In an English case, the question whether the defendant employer was liable was held properly submitted to the jury in the case of unloading a ship. Where the contract, as related by witnesses, is so incomplete as to lead to the conclusion that it was a mere subterfuge to avoid liability, or an afterthought on the part of the witness, it is properly submitted to the jury." Moll, Independent Contractors' and Employers' Liability, p. 62, § 29; 26 Cyc. 1576, par. 7; 1 Labatt's Master Servant (2 ed.), pp. 170, 175, Section 52, notes 10 and 11, p. 174; Dickerson v. Eastern Western Lumber Co., 79 Or. 281 ( 155 P. 175).

If it was the duty of the defendant lumber company to furnish the appliances, it could not delegate that duty even to the plaintiff himself or to Synnes: Malloy v. Marshall-Wells Hardware Co., 90 Or. 303 ( 173 P. 267, 175 P. 659, 176 P. 589). From page 315 of the official report is taken this language:

"It is contended that plaintiff himself should have constructed the guard-rail. There is evidence that he could have secured from the defendant corporation the materials required for such construction, but there is no evidence that it was his duty so to do. Under the statute this duty devolved on Marshall-Wells Hardware Company. This duty was absolute and nondelegable. It would still have been obligatory on the corporation even if plaintiff had been ordered to construct the guard-rail and had agreed to do so."

The Employer's Liability Act was enacted for the benefit of the workmen. It is remedial and should be liberally construed: Blair v. Western Cedar Co., 75 Or. 276, 280, 146 P. 480). One of its definite purposes is to fix, with certainty, the person responsible for defective appliances. The statute itself would be rendered very largely nugatory if an owner could relieve himself of performing his duty to furnish appliances and material to workmen under his supervision in work for his benefit by saying: "There are certain appliances or material. Help yourself." That is very nearly the attitude of the defendant lumber company in the instant case. Its principal defense is that the plaintiff was the employee of an independent contractor, and it is not liable because it was the duty of the independent contractor to supply the appliance. At the same time, it alleges that it informed plaintiff and his employer that they could use material and appliances belonging to it. On the other hand, both the plaintiff and the defendant Synnes allege and adduce evidence to support the allegation, that by the terms of the oral contract between the defendant lumber company and Synnes, the lumber company agreed to furnish the appliances, supply the material that it did, and engage directly in the construction work. At the same time the defendant lumber company attempts to delegate its duty, to select and test the appliance, to the plaintiff and defendant Synnes.

In the state of the record the question of whose duty it was to furnish the rope used and to test it, is a question of fact to be determined by the jury. The jury having determined that question in favor of the plaintiff, this court is bound by the result. The fundamental law prohibits this court from retrying the question of fact.

The writer accepts, as settled law, the principle that an owner who lets a contract to an independent contractor for the construction or repair of a building and the contractor supervises the work, furnishes the material and is responsible for the result only, the owner is not liable for an accident resulting from defective appliance furnished by the contractor and causing injury to an employee of the independent contractor. It has also been held in a number of cases that, where the owner himself reserves the right to control the work, not only as to the general result but also as to the manner of doing the work, he is in a large degree the employer and liable for injuries resulting to the employees of the general contractor resulting from negligence attributable to the employer. There is no good or sound reason why an independent contractor and the owner cannot define and limit the duties and obligations of each other in a contract for construction or repairs. Both parties are bound by a contract between them defining their several duties in construction or repair work. In such a case the contractor's employees, injured as a result of negligence on the part of the owner in executing such contract, are entitled to recover damages from the owner. It is the writer's opinion that the plaintiff is within the protection of that principle of law; that the jury's verdict placed the duty of furnishing the rope, the breaking of which caused the injury to plaintiff upon the defendant lumber company, and that the defendant lumber company was negligent in this, that it did not inspect the rope or supply a proper rope to the plaintiff. It undertakes to excuse itself by saying that it had a strong rope and the defendant was authorized to help himself, but the law requires the owner or employer to have seen that the proper appliance was furnished. There is no pretense that the defendant lumber company performed that duty.

The principle of law relied upon by the writer is neither novel nor strange. It is enunciated by such standard text-writers as Labatt, Bailey and others.

"Ordinarily the contractee is under no obligation to furnish any appliances to the contractor, except as expressly provided for in the contract. But he is liable to the servants of a contractor for injuries received by them through the negligence of such contractee in not providing proper appliances, where as between himself and the contractor he is to furnish the appliances for the contractor's use.

"If the apparatus used belongs to the contractee, the latter is responsible for defects therein resulting in injuries to servants of the contractor the same as if the servants were the servants of the contractee." Bailey, Personal Injuries (2 ed.), 130.

"From evidence which shows that the servant of a contractor was, in the given instance, controlled as to the details of his work by the principal employer, one or other of two inferences may be drawn, viz.:

"(1) That, although the servant was in the general employment of the contractor, he had, as a result of some arrangement between his master and the principal employer, become the special servant of the latter for the purpose of the work in hand, at the time when the injury in suit was received. * *

"(2) That by virtue of the original agreement between the principal employer and the contractor the former acquired the right of giving directions to the servants of the latter with regard to the manner in which the work was to be done. * * Thus, the principal employer is responsible * * to a servant of the contractor, who grounds his claim upon the principal employer's nonperformance of one of those nondelegable duties which the law imposes on a master for the protection of his servants." 1 Labatt's Master Servant (2 ed.), 123, 124, § 40.

"Whether the plaintiff, although regularly working for another person, was, at the time of the accident, under the control of the defendant in such a sense as to be an employee ad hanc vicem, and therefore entitled to hold the defendant accountable under the statute (Employer's Liability Act) is determined by tests similar to those which are applied in actions at common law." 5 Labatt's Master Servant (2 ed.), 5280.

"While in a large majority of cases, there is no sufficient legal reason, founded on public policy or on the relations of the parties, why the employer should be liable to third parties for the negligence of the contractor or of his servants, there are nevertheless certain duties of so grave a nature that the responsibility for their performance cannot be avoided by delegation. In some cases, as already noted, a person harmed by the tort of an independent contractor is allowed to go beyond the general principle of exemption of his employer and seek redress from such contractor's employer. * *

"The general rule of an employer's nonliability is subject to certain exceptions, which have been thus stated: * * `(4) The employer may be guilty of personal neglect connecting itself with the negligence of the contractor in such manner as to render both liable.'

"* * (3) Where the wrongful act is the violation of a duty imposed by express contract upon the employer; for where a person contracts to do a certain thing, he cannot evade liability by employing another to do that which he has agreed to perform. (4) Where a duty is imposed by statute. The person on whom a statutory obligation is imposed is liable for any injury that arises to others from its nonperformance or in consequence of its having been negligently performed, either by himself or by a contractor employed by him. (5) The employer may also make himself liable by retaining the right to direct and control the time and manner of executing the work, or by interfering with the contractor and assuming control of the work, or some part of it, so that the relation of master and servant arises, or so that an injury ensues which is traceable to his interference." Moll, Independent Contractors' and Employers' Liability, § 65, pp. 124, 125, 126; Id., § 99, p. 200; Id., § 207, pp. 326, 327.

"As well stated in recent cases in New York, there are but three cases in which the owner of fixed property is responsible for acts done upon it which result in injury to another: * * where the injury was occasioned by the omission of some duty imposed on the proprietor." Thompson, Commentaries on the Law of Negligence (2 ed.), § 646, p. 589.

Likewise, the same author announced the rule that the proprietor is responsible if he interferes with the work and retains or assumes general supervision and control: Id., 597, §§ 658, 659.

"There are certain well-recognized exceptions to the rule exempting a contractee from liability, although there is considerable conflict in the authorities as to when the general rule applies and when the case is within an exception, and considerable difficulty is encountered in determining under what particular exception the contractee should be held liable." 26 Cyc. 1557, § 3.

"Except where there are statutory provisions to the contrary, the owner of real estate does not ordinarily owe to a person employed on his premises in the service of an independent contractor the duty to furnish a safe place for work, and for omission to do so he is not liable in damages. But the owner may be liable, under particular circumstances, where a duty devolving upon him is not fulfilled. In the absence of provisions therefor in the contract the contractor (contractee) is usually under no duty to furnish any appliance for the contractor. But if unsafe appliances are furnished by the contractee and a servant of the contractor is injured thereby, the contractee is liable, especially where it is the duty of the contractee to furnish them because of his agreement with the contractor. * * Where the employee of a contractor is injured by the combined fault of the contractor and the owner, the latter is liable." 26 Cyc. 1568-1570, b.

"The fact that the proprietor may be liable does not necessarily negative the conclusion that the contractor is liable. The general rule will be that the independent contractor will occupy the relation of master and servant as between himself and his own employees and that such employees will not be regarded as servants of the proprietor. It must follow that in any such case of a negligent injury, where the proprietor becomes liable on the ground that the negligence is that of an independent contractor or his servants, the contractor will be liable." Moll, Independent Contractors' and Employers' Liability, 340, § 222.

"Where a contractor, being short of laborers, borrowed a gang of men from a third party, under such third party's foreman one of such laborers was put in a dangerous place at which he was injured, the contractor and the third party were both held liable." Moll, Independent Contractors' and Employers' Liability, 342, § 223.

"A proprietor who personally interferes in the work is responsible for any injury to a servant of the contractor occasioned by such interference whether such contractor is independent or not." Moll, Independent Contractors' and Employers' Liability, 327, § 207.

"In a joint action against the owner of a building, the contractor and subcontractor, for an injury to the employee of the latter, the contracts and specifications between the owner and the contractor were held properly admitted to show the relation of the defendants to one another." Moll, Independent Contractors' and Employers' Liability, 203, § 101.

"The servants of an independent contractor are not servants of the employer nor fellow servants of those engaged by him: * * But he owes to the servants of the contractor the same duty that he owes to persons rightfully on his premises, and for an injury caused by his negligence or the negligence of his servants in regard to the premises or appliances furnished by him they may hold him responsible. * *

"Under this section the servant of an independent contractor may recover from the employer for injuries received through the instrumentalities furnished by the employer for the contractor's use." Dresser, Employers' Liability, pp. 59, 60, § 9.

"The Pacific Mail Steamship Company and Henry Bingham had contracted, the latter to load and discharge the cargoes of the company's ships, the former to furnish the power and appliances necessary for the work. Pursuant to their contract, Bingham was loading flour on one of the company's vessels, when a sling in which flour was hoisted on to and lowered into the ship gave way, and plaintiff, who was stowing cargo in the hold, was severely injured by falling sacks. Plaintiff was a stevedore in the employ of Bingham. He sued Bingham and the company jointly, and obtained a judgment against both. They prosecute separate appeals from the judgment, and from the order denying a new trial.

"In accordance with the contract the steamship company had furnished Bingham's employees (Bingham not being personally present) with six slings to be used in hoisting the cargo. Upon receiving the slings Bingham's men, according to their habit, examined them, and, rejecting two as defective, accepted four as fit for use.

It was one of these four slings so accepted, which, breaking, caused plaintiff's injuries. The cause of the break was a latent defect in the rope attached to the sling. This rope, while sound to superficial observation, was for a foot or more of its length affected by a dry rot, which greatly impaired its strength. Bingham had absolute control over his employees and over the conduct of the work.

"It is contended on behalf of the appellant, the Pacific Mail Steamship Company, that these facts exonerate it from liability to the plaintiff in this action; that, even if it failed to exercise the due amount of care in the selection and furnishing of appliances, it was a breach only of its contract with Bingham; that there was no contractual privity between it and this plaintiff, and no duty owing by it to plaintiff, since between it and plaintiff the relation of employer and employee did not exist. But the rule is too firmly settled to be open to successful attack, that where one agrees to furnish to a contractor material or appliances which he is to use in the performance of his task the principal is liable to the servants and agents of the contractor for injuries which may result to them from his negligence or inadequate performance of his contract in this regard. The liability is not based upon the relationship of employer and employee, but it is considered by some courts that the contract is made with the contractor for the benefit of his employees, who have, therefore, the right to a recovery of any breach of it which results in their injury. * * In further support of the principle may be cited the cases of Mulchey v. Religious Soc., 125 Mass. 487; Lee v. Southern Pac. R.R. Co., 116 Cal. 97; McKenna v. The Carolina, 30 Fed. 199; Coghlan v. The Rheola, 19 Fed. 926; Hamilton v. The Wm. Bramfort, 48 Fed. 914; Roddy v. Missouri R.R. Co., 104 Mo. 234; Steel v. McNiel, 60 Fed. 105; Lake Superior Iron Co. v. Erickson, 39 Mich. 492; Kelley v. Howell, 41 Ohio St. 438; Coughtry v. Globe Co., 56 N.Y. 124." McCall v. Pacific Mail S.S. Co., 123 Cal. 42, 43 ( 55 P. 706, 707).

In the McCall case, the judgment was reversed because the injured employee had personally inspected the appliances which caused the injury.

It is claimed, in the instant case, that the plaintiff selected his own rope and is responsible, consequently, for any defects in it. But as we have pointed out heretofore in this opinion, under the Employers' Liability Act of this state, the owner could not delegate that duty to the plaintiff or anyone else. It is not necessary to repeat what has heretofore been written in that regard.

The evidence is conflicting as to whether or not the plaintiff himself selected the rope or his fellow-workmen. The defense of assumption of risk, contributory negligence and the fellow-servant doctrine are not available. The action is brought under the Employers' Liability Act.

It must be understood what we have said about the evidence is based upon the jury's verdict, and not upon our estimation of the value of the evidence.

It is argued that because the defendant lumber company did not direct the plaintiff to use the rope, the parting of which caused the injury, the defendant lumber company is not liable. The verdict of the jury establishes the fact that the defendant lumber company was engaged in doing the construction and repair work at the time the injury was inflicted; that it was in immediate control of the workmen including the plaintiff; and that it was its duty to supply and furnish the appliances and material. It is guilty of negligence because it failed to furnish safe appliances: Section 6785, Or. L.

That eminent jurist, Judge COOLEY, has defined negligence as follows:

"Negligence is the failure to observe, for the protection of the interest of another, that degree of care, precaution, and vigilance which the circumstances justly demand. (Cooley, Torts, p. 630.)" Cited with approval in 2 Jaggard on Torts, 810.

The violation of the statute designed for the protection of others constitutes conclusive evidence of negligence: Cauldwell v. Bingham Shelley Co., 84 Or. 257 ( 155 P. 190, 163 P. 827). The defendant lumber company omitted to furnish safe appliances. If by failing to do its duty it is exonerated from damages, the provisions of Section 6785, Or. L., are largely abrogated. There is testimony to the effect that the rope used, if in proper order, was of sufficient strength to have supported the weight required for the purpose it was used. A similar rope had been used under the same conditions repeatedly. If the defendant lumber company had furnished a suitable appliance and the plaintiff had not used it, but used one of his own selection instead, a different question would be presented.

By the terms of the contract between the defendant Synnes and the defendant lumber company, the latter was to furnish the appliances and material for doing the work, and to supervise the work and direct the workmen in the details of the work. The defendant Synnes was a general contractor having other contracts in operation at the time the accident occurred. Both he and the defendant lumber company were engaged at the time in repairing the dock and doing other work required to be done by the defendant lumber company. The defendant lumber company exercised the right to control the workmen at least to a large degree. An officer of the company caused the plaintiff to be placed where he was on the job at the time he was injured. If the plaintiff was foreman of the two or three men with whom he was working, he was made so by the defendant lumber company and not by the defendant Synnes. If Knapp was the foreman of all of the employees of defendant Synnes, then he was so by virtue of the conduct of the defendant lumber company, for the effect of the jury's verdict is that the defendant Synnes never appointed Knapp or authorized him to act as foreman. The verdict could mean, in effect, that Knapp received no authority to act as foreman, but performed some such duty by general consent and recognition of him in that capacity by the defendant lumber company. There is no evidence that he was ever so recognized by the defendant Synnes, his employer. The terms of the contract are uncertain and undefined. There is conflicting evidence about them. The only means of determining what they were is the oral testimony of the witnesses. Under such circumstances and in such cases, the contract itself must be determined by the jury. The question presented is one of fact. Under these conditions, the jury's verdict placed the duty of supplying the appliances and material for the work on the defendant lumber company. It failed in that duty. In consequence of that neglect, the plaintiff was injured and is entitled to recover.

The learned judge of the Circuit Court instructed the jury properly under the issues and the evidence. Among others, he gave the following instructions:

"It will be necessary for you to determine, then, which of the contentions, that of the plaintiff or that of the defendant, is true. If you find that the defendant West Oregon Lumber Company was actively engaged in carrying on this work as alleged by the plaintiff, then you must pass to a further consideration that the defendant West Oregon Lumber Company's responsibility viewed in that situation.

"If you find that it had made an independent contract with Synnes, and was not actively engaged in carrying on the work, then you cannot find against the defendant West Oregon Lumber Company, but must find in its favor.

"And in this connection I will say that a party who contracts with another to do and perform certain work or labor, and the person so contracting has no control or management of the work, in such case the one who undertakes the work becomes an independent contractor.

"You may apply this rule to the defendant West Oregon Lumber Company's allegations and the proof herein, that it had made an independent contract with the defendant Synnes, and if you find that it made such a contract and was not actively engaged in the work at hand, then as I said before, you cannot find against the defendant West Oregon Lumber Company."

Further instructions of like tenor amplifying the foregoing were given by the learned judge, so that the theory of the defendant lumber company was completely and fully placed before the jury and doubtless considered by it.

The judgment of the Circuit Court should be affirmed.

BEAN, J., concurs in this dissent.