Van Norden v. Charles R. McCormick Lumber Co. of Delaware

This is an action for the identical personal injury for which damages were sought in Van Norden v. McCormick Lbr. Co. (C. C. A.) 17 F.(2d) 568 . The parties also are the same, and the negligence alleged is that specified under “(2)” in the former opinion. Correctly, we think, the court below held that the judgment in that case operates as a judicial estoppel. The only distinctive feature here set forth is that the men who were in control of the windlass and whose negligence, it is said, caused the accident, were fellow servants with plaintiff, and that defendant had, prior to the accident, elected not to- take the benefit of or become subject to the Workmen’s Compensation Act of Oregon (Or. L. §§ 6785-6791).

The contention is that, because of another provision of that act withdrawing from the employer so electing, the fellow-servant defense available under the common law, plaintiff exhibits a new and distinct cause of action. In this view we cannot concur; the Compensation Act does not purport to create a new cause of action. In terms it declares that upon the exercise of such option the “employer shall be entitled to none of the benefits of this act, and shall be liable for…