This is an action brought under the Employer’s Liability Act by plaintiff, Nellie M. Beers, as surviving spouse, to recover for the wrongful death of her husband who was killed on March 16, 1959 while engaged in loading a truck with logs. The defendants, by supplemental pleadings filed pursuant to ORS 656.321(3), alleged that the defendants and the decedent’s employer were all subject to the Workmen’s Compensation law and that plaintiff’s sole remedy was under that law. The court found in favor of the defendants, and plaintiff appeals.
Plaintiff contends that the evidence was insufficient to prove, first, that the defendants were subject to the Workmen’s Compensation law, and, second, that the premises where the injury occurred were under the joint supervision and control of the defendants and decedent’s employer.
*555 Plaintiff’s decedent, Lawrence A. Beers, was employed by Lagler Logging Co. as a head loader. The defendant Paekebush was engaged in hauling logs for Lagler Logging Co. The truck being loaded when Beers was killed had been furnished to Paekebush on a temporary basis by the defendant Chapman, and was being driven by the defendant John Mattice. Paekebush paid Chapman $3.00 per thousand for the use of the truck and driver, and Chapman paid the driver.
In the loading operation it was the duty of Beers as head loader to select the log to be loaded, set the tongs, and signal the operator of the hoist to hoist the log onto the truck. The driver, Mattice, moved the truck backward or forward as directed by signals from the second loader. If the driver was dissatisfied with the load he had the right to have it changed, but since they were operating on private roads it was not necessary to comply with the statutory load limits. After the logs were loaded the driver put on the binder chains. The fatal accident apparently was caused by a defective chain on Chapman’s truck.
This case was tried by the court, which found that when plaintiff’s decedent was killed his employer, Lagler Logging Co., and the defendants Paekebush and Chapman were all employers subject to the Workmen’s Compensation law, and that Mattice was a workman subject to said law. This finding was supported by substantial, competent evidence and cannot be disturbed by this court.
Highway Com. v. Kendrick,
72 Adv Sh 1379,
The trial court also found that the premises
*556
Where the accident occurred were under the joint supervision and control of decedent’s employer and defendants 'Chapman and Packebush. This finding also is supported by substantial, competent evidence and cannot be disturbed by this court. 'The facts in this case are similar to the facts in
Claussen v. Ireland,
The judgement is affirmed.