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Oremus v. Oregonian Publishing Co.

December 1, 1972

OREMUS, PLAINTIFF,
v.
THE OREGONIAN PUBLISHING COMPANY ET AL, RESPONDENTS, LEIBRAND, APPELLANT



Appeal from Circuit Court, Multnomah County. Pat Dooley, Judge. No. 366-897.

Scott M. Kelley, Portland, argued the cause for appellant. With him on the brief were Mize, Kriesien, Fewless, Cheney & Kelley, Portland.

Thomas M. Triplett, Portland, argued the cause for respondents. With him on the brief were Wayne A. Williamson and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland. Also of counsel: W. F. Lubersky, Michael G. Holmes and McColloch, Dezendorf, Spears & Lubersky, Portland.

Foley, Judge. Langtry, Presiding Judge, specially concurring. Fort, Judge, dissenting.

Foley

This case was remanded by this court for the determination of who was or were the true employer or employers of Daniel Oremus. See 3 Or App 92, 470 P2d 162, Sup Ct review denied (1970). The Workmen's Compensation Board found that The Oregonian was the true employer and should reimburse Mr. Leibrand, the newspaper distributor, for compensation paid or payable. The board based its decision on a test denominated "relative nature of the work."*fn1 The circuit court reversed the board's finding and held, according to established principles, that The Oregonian had no

contract with Oremus and no right to control his work, and he therefore was not an employe of The Oregonian. Leibrand and his compensation carrier appeal to this court.

ORS 656.002(13) defines an "employer" as:

"* * * [A]ny person * * * who contracts to pay a remuneration for and secures the right to direct and control the services of any person."

ORS 656.002(21) defines a "workman" as:

"* * * [A]ny person * * * who engages to furnish his services for a remuneration, subject to the direction and control of an employer * * *."

An early and much quoted interpretation of these requirements is found in Landberg v. State Industrial Acc. Com., 107 Or 498, 502, 215 P 594 (1923):

"The relation that must exist to constitute one person an employer and another person a workman, under the compensation act, is the relation of master and servant, and this relation originates wholly in contract, although the contract may be either express or implied. There must be a contract of hire. The services which the servant contracts to perform are personal services, and the master must have the right to direct and control the details of the work and the manner and mode of its performance. The test of the control, which the employer has the right to exercise and to which the servant is subject, means complete control * * *. In performing the services the ...


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