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Tidyman v. Industrial Air Products Co.

July 19, 1973

TIDYMAN, APPELLANT,
v.
INDUSTRIAL AIR PRODUCTS CO., RESPONDENT



Appeal from Circuit Court, Multnomah County. Clifford B. Olsen, Judge.

Carlton W. Hodges, Portland, argued the cause for appellant. With him on the briefs were Bernard, Hurley, Hodges & Kneeland, Portland.

Cleveland C. Cory, Portland, argued the cause for respondent. With him on the brief were Clarence R. Wicks, and Davies, Biggs, Strayer, Stoel & Boley, Portland.

Howell, Justice. O'Connell, Chief Justice, and Denecke, Holman and Bryson, Justices. Tongue, Justice, specially concurring.

Howell

Plaintiff filed this action for personal injuries sustained while working on defendant's premises. Both plaintiff's employer and the defendant were employers subject to the provisions of the Workmen's Compensation Act. By a supplemental answer the defendant raised the defense of joint supervision and control

under ORS 656.154. The trial court entered findings of fact and conclusions of law in favor of defendant on the supplemental answer. Plaintiff appeals.

Defendant manufactures, stores and sells liquid and compressed gas for industrial and medical use. Plaintiff's employer, McCulloch & Sons, fabricates new steel tanks and also repairs and welds existing tanks. A large tank, 18 feet in diameter and 75 to 100 feet in length, used for storing oxygen, developed a leak, and defendant contracted with plaintiff's employer to repair and weld the tank.

The defendant agreed to purge the tank, construct a scaffolding, provide welding equipment including a torch, and provide a helper to assist McCulloch's employees in repairing the tank. McCulloch agreed to fabricate a flange and a steel plate to cover the leak and to provide employees to do the work.

By December 5, 1969, purging had been done and the scaffolding on the tank completed. The defendant brought welding equipment to the tank area and arrangements were made for the helper to assist McCulloch's employees. Early the next morning plaintiff and a fellow employee arrived to start the repair work. Several of defendant's employees were in the general area. Plaintiff's co-worker decided that the tank was unsafe to work upon and departed for McCulloch's plant to obtain a cleat and angle iron to attach to the tank for better footing. Plaintiff used a blow torch to melt some ice that had formed near the manhole on the tank, and a fire started in the tank from oxygen that had not been completely purged by defendant. Plaintiff was injured from the flames.

The trial court found that plaintiff's claim was

barred because both employers had joint supervision and control of the premises under ORS 656.154, ...


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