# Skeeters v. Skeeters

> Oregon Supreme Court · February 13, 1964 · 237 Or. 204

URL: https://www.frixlaw.com/law-library/cases/9852390

## Case

- **Full name:** SKEETERS v. SKEETERS Et Al
- **Court:** Oregon Supreme Court
- **Decided:** February 13, 1964
- **Citations:** 237 Or. 204; 391 P.2d 386; 389 P.2d 313; 1964 Ore. LEXIS 296
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Bossman, Perry, Sloan, O'Connell, Goodwin, Denecke, Lusk, Rossman
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9852390

## Opinion text

ON REHEARING
*242 Dusenbery, Martin, Beatty & Parks, Portland, for the petition.
Before Rossman, Presiding Justice, and Perry, Sloan, O’Connell, Goodwin, Denecke and Lusk, Justices.
PER CURIAM.
The defendants petitioned for rehearing upon the ground, among others, that our original decision was in error because it condoned the trial courts failing to strike an allegation charging generally a violation of the Employers’ Liability Act and not specifying the nature of the charged violation; and in submitting such general charge of fault to the jury.
So that there is no misunderstanding concerning what is always a puzzling pleading problem, we restate that in pleading a violation of the Employers’ Liability Act it is necessary to plead the specific device, care, or precaution that plaintiff claims should have been used. The plaintiff’s complaint did not so plead and was, therefore, faulty.
*243 The trial court’s error in not treating this as a faulty pleading, however, was not prejudicial because of the nature of the evidence and the instructions to the jury. The plaintiff introduced evidence of only one specie of fault; i.e., a failure to provide guards. This was the fault specified in plaintiff’s complaint as a charge of common law negligence and violation of the Basic Safety Code. Therefore, the defendants were apprised by the complaint of the nature of the fault charged although they were not thereby informed of the full legal significance of such charge. The court instructed the jury that in considering whether the defendants had failed to use every device, care, and precaution they were limited to that “which has been proven by the plaintiff to be a care, device or precaution which could have been used, * * A guard is the only device which plaintiff attempted to prove could have been used.
The petitioners also believe we committed grievous error in concluding that the trial court’s ruling in striking the Safety Code requirement of hard hats from defendant’s answer was not reversible error. Petitioners point out that a vice principal is required as a matter of law to comply with applicable provisions of the Safety Code. We reached the conclusion that the trial court’s error was not reversible by the reasoning that the jury, in returning a verdict for the plaintiff, must, therefore, necessarily have found that the plaintiff was not a vice principal; therefore, whether or not vice principals were required by the Safety Code to wear hard hats is immaterial.
OPS 654.315 requires of vice principals that they “shall see that the requirements of OPS 654.305 to 654.335 are complied with;” i.e., a vice principal shall see that every device, care and precaution is used. *244 The jury must necessarily have found that the crusher should have been equipped with a guard. If plaintiff had been a vice principal this would have been a responsibility of his and his failure to fulfill this responsibility would have barred his right of recovery. Thus, a verdict for the plaintiff is a finding that plaintiff was not a vice principal.
Petition denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9852390. Public record. Not legal advice.