dissenting.
I dissent from that part of the majority decision holding that the injured workman cannot recover damages from Wallace, the employee.
We have stated that the immunity clause was inserted for the purpose of encouraging employers to accept the coverage of the Compensation Act. Pruett v. Lininger, 224 Or 614, 625, 356 P2d 547 (1960). A grant of immunity to employees is not as direct or as enticing an inducement to an employer as a grant of immunity to an employer himself. On the other hand, the statute grants immunity to fellow employees, i.e., persons employed by the employer of the injured party, and it is difficult to see any reason why the legislature would exempt such employees and not those working for immune third-person employers.
Without any clear policy considerations favoring a preference for one statutory construction over another, the literal Avording of the statute Avill have to be the sole guide. This principle was followed in interpreting *524the present statute in Wimer v. Miller, 235 Or 25, 30, 383 P2d 1005 (1963), in which an alleged negligent physician treating the injured workman was held not immune from a malpractice suit. The statute is as follows:
“(1) If the injury to a workman is due to the negligence or wrong of a third person not in the same employ, the injured workman * * * may elect to seek a remedy against such third person. However, no action shall be brought against any such third person if he or his workman causing the injury was, at the time of the injury, on premises over which he had joint supervision and control with the employer of the injured workman and was an employer subject to OES 656.002 to 656.590.” (Emphasis added.)
Paraphrasing, the statute provides that an injured workman can recover damages against any third person except fellow employees, except that employers having joint supervision and control over the premises where the injury occurred are immune. The italicized phrases make a distinction between employers and their workmen. The last clause specifically limits immunity to “an employer subject to [the Act] * * *”
In my opinion OES 656.154(1) does not provide immunity for employees of third-person employers.
Sloan, J., joins in this dissent.