Appeal from Circuit Court, Multnomah County. William M. Dale, Judge.
Richard H. Muller, Portland, argued the cause for appellant. With him on the brief were Bouneff, Muller, Marshall & Hawkes, Portland.
James H. Clarke, Portland, argued the cause for respondent. With him on the brief were George L. Kirklin, Richard H. Williams, and Dezendorf, Spears, Lubersky & Campbell, Portland.
In Banc. Howell, J. Tongue, J., specially concurring.
Plaintiff, an employee of Waterway Terminals Company in Portland, was injured when he was loading a trailer owned by the defendant, Pacific Motor Trucking Company. Both employers were subject to the Workmen's Compensation Act. Plaintiff filed a third party action against the defendant under the provisions of ORS 656.154. The trial court found that the premises where the work was being performed were
under the joint supervision and control of both employers and dismissed the action. Plaintiff appeals.
The facts are not disputed. The plaintiff was employed in a warehouse owned by his employer, Waterway Terminals. The defendant is in the trucking business, hauling material and supplies. Ordinarily, in hauling freight from Waterway's warehouse, the defendant's teamster employees would not only drive the trailers with tractors to the Waterway loading dock, but would also do the loading. However, at the time of plaintiff's accident, the Longshoremen's Union was striking at Waterway, and the defendant's teamster employees would not cross the picket lines. Consequently, an agreement was reached whereby the defendant's employees drove the tractors and trailers up to the picket line, and defendant's supervisory employees then drove the tractors and trailers to the loading dock. The defendant's employee would block the front wheels of the trailer, unhitch the trailer, and move the tractor out to secure another trailer. After the trailer was loaded by Waterway employees, it would be hauled away following the same procedure.
Because of the strike, defendant was paying plaintiff's employer, Waterway, for the labor expenses in loading the trailers.
At the time of the accident, plaintiff was using a grab truck to load the trailer with rolls of paper which weighed 2,500 to 3,000 pounds. The trailer slipped away from the dock and plaintiff fell. Apparently the brakes on the trailer were not set or the front wheels of the trailer were not blocked properly.
Other than the cargo to be loaded, the record is not clear as to whether the defendant exercised any
control over plaintiff's activities through ...