Myers v. Meier & Frank Co.

TONGUE, J. This is a personal injury action by an injured workman against a "third party” defendant. Defendant, by supplemental answer, alleged that plaintiff is not entitled to recover because both his employer and defendant were contributors under the Oregon Workmen’s Compensation Law and because plaintiff, at the time of his injury, was on premises over which his employer and the defendant had "joint supervision and control,” so as to bar recovery under ORS 656.154. Defendant then moved for a summary judgment, which was allowed. Plaintiff contends that the defense of "joint supervision and control” is no longer available to the defendant because ORS 656.154 was repealed by Oregon Laws 1975, ch 152, § 1. A similar contention was considered and rejected in Cole v. Zidell Explorations, Inc., 275 Or 317, 324, 550 P2d 1194 (1976), decided after plaintiff’s notice of appeal and brief. We held in Cole, under similar facts, that Oregon Laws 1975, ch 152, § 1, is not retroactive in its application to a case involving injuries prior to the effective date of the statute on July 1, 1975, regardless of whether the case was not tried until after that date. It follows that the provisions of ORS 656.154 relating to "joint supervision and control” are a bar to this action because it involved an injury which occurred prior to July 1, 1975, despite the fact that this defense was not raised by defendant until after July 1, 1975. The trial court did not err in entering a summary judgment in favor of defendant. Affirmed.