dissenting.
I dissent because I believe that the majority has given an unduly narrow interpretation to the Employers’ Liability Act and one that is inconsistent with our previous decisions holding that it must be liberally construed to provide maximum protection to workmen engaged in dangerous work.
The majority holds that the trial court did not err in withdrawing from the jury the third "count” of plaintiff’s complaint (alleging liability under the Employers’ Liability Act) for two reasons:
(1) The trial court, after hearing conflicting testimony, properly interpreted defendant’s contract with the union to do no more than reserve to defendant "the right to require the contractor to comply with the degree of safety previously required,” but "without the right to directly control the injury-creating activity.”
(2) "The retention of the right by owners to direct the manner in which the work is done, if necessary to secure greater safety, tends to promote the same policy as that of the [Employers’ Liability Law],” with the result that to impose liability under that Act for the reservation of such a right would be "contrary to the policy of the Act where no risk is created that the contractor will fail in his duties to his employees” upon "the expectation that defendant would take care of such duties.”
*1169With all due respect to the majority, I believe that neither of these reasons provides a proper basis for the decision of this case.
Before considering the validity of these two propositions and their application to the facts of this case, however, it is well to bear in mind the extremely broad and all-inclusive terms of the "and generally” provision of the Employers’ Liability Act. ORS 654.305 provides:
"* * * all owners * * * having charge of or responsible for, any work involving a risk or danger to the employes * * *, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb * *
As stated in Drefs v. Holman Transfer Co. et al, 130 Or 452, 455, 280 P 505 (1929):
“* * * It was a beneficient statute and as construed by this court, which has gone to the extreme of liberality in construing it, has resulted in extending to employees in hazardous occupations a degree of protection theretofore unknown. * * *”
In Wilson v. P.G.E. Company, 252 Or 385, 395, 448 P2d 562 (1969), it was again held that:
"The purpose of the ELA is the maximum protection of workmen engaged in hazardous occupations. * * *”
1. The contract between defendant and the union imposed upon defendant responsibility” for continuation of previous safety practices, within the terms of the Employers’ Liability Act.
The unique feature of this case is that it is not a case in which plaintiff rests her claim that defendant was in "charge of or responsible for” this "work” upon a provision in the contract between defendant and an independent contractor, but upon a provision in a labor contract between defendant and a union and one which not only reserved to defendant a right, but imposed a duty, to require its contractors to maintain previous working conditions relating to safety.
At the time that contract was negotiated, defendant *1170desired to subcontract its falling and bucking operations. The union opposed the subcontracting of such work, in accordance with the traditional positions of unions on that subject. This difference in position was then the subject of collective bargaining which resulted in a compromise under which, in effect, the union agreed not to object (as by strike) to the subcontracting of the falling and bucking provided that the defendant undertook the duty to "require its contractors to maintain the same standards of wages and working conditions,” including previously existing safety practices.
As stated by the majority, it appears from the record in this case that although it was contended at the time of trial that this contract provision was ambiguous, in the legal sense, resulting in a question of fact as to the intention of the parties in the use of those terms, the trial judge considered the interpretation of this provision to be a question to be decided by the court and the parties then submitted that question to him for decision, rather than to the jury.1
The majority says that the trial court interpreted this contract provision to mean that defendant could only "require its contractors and subcontractors” to maintain and continue these previous safety practices, but that such control over working conditions could only be exercised "upon, and not apart from, its contractor.”
In Harvey v. Corbett, 77 Or 51, 59-60, 150 P 263 (1915), this court quoted with approval the following rule of law for application in such cases as stated in 1 Labatt, Master and Servant 126 (1913):
" 'A provision in an agreement which confers upon the superior employer the right of controlling the contractor himself in respect to the details of the work must necessarily imply that he is to retain the right of *1171controlling to the same extent the servants, who are the instruments through [whom] the contractor performs the work; otherwise such a provision would be meaningless and ineffectual.’ ”
It may be seriously questioned whether, in view of this rule, as adopted by this court, it was proper for the trial court to hold that although the contract between the company and union provided that the company would "require” its contractors to maintain previous safety practices, the company could "exercise” the power conferred by that contract provision only "upon, and not apart from its contractor.” But even if the trial court was correct in that interpretation of the contract, it still does not follow that the duty imposed by this contract upon the company to "require” its contractors to maintain previous safety conditions did not result in the company being "responsible” for this "work” within the intended meaning of the Employers’ Liability Act.
In Thomas v. Foglio, 225 Or 540, 546-47, 358 P2d 1066 (1961), with reference to both ORS 654.305 (the Employers’ Liability Act) and 656.154 (re "joint supervision and control”):
"* * * We do not pass upon the question of whether the control required under each of these statutes is the same, but both statutes have been liberally construed to cover situations in which the defendant did not have actual control over the specific activity which was the immediate cause of the plaintiffs injury. Defendant’s participation has been considered sufficient where it amounted to co-operative conduct in accomplishing a task in which both the defendant and plaintiff’s employer were interested. * * *” (Emphasis added)
In my opinion, it follows from the applications of the rule of Thomas v. Foglio, supra, to the facts of this case, including this contract provision requiring defendant to require its contractors to maintain previous working conditions relating to falling and bucking work, that defendant had such "control” or "responsibility” over such work as to be subject to the provisions of the Employers’ Liability Act.
*1172It must again be kept in mind that ORS 654.305, by its broad terms, imposes the duty to comply with the strict standards provided by the Employers’ Liability Act not only upon owners who "have charge”of work involving risk hazard or danger, but also upon owners who are "responsible” for such work and that these provisions must be liberally construed to provide "maximum protection” to persons engaged in such work.
Even if, as held by the majority, defendant is limited in the discharge of the duty imposed upon it by its labor agreement with the union to the "exercise” of that duty only "upon” the contractor, that provision imposes upon the defendant the "responsibility” to insist, through the contractor, that previous safety practices be continued and to "require” its contractor to do so. To hold to the contrary, in disregard of the plain terms of the Act imposing liability upon those "responsible” for dangerous work would, in my judgment, be contrary to our professed purpose to construe this statute liberally so as to provide "maximum protection” to those engaged in dangerous work. The widow of this workman is entitled to no less.
As stated in Harvey v. Corbett, supra (at 58):
"* * * We have only to apply the plain provisions of the statute. * * *”
2. The contract between defendant and the union not only reserved to defendant the "right” to direct the manner of work by the contractor, but imposed upon defendant the duty to do so.
The "other reason” stated by the majority as the basis for its holding that "the Act should not apply” is that in Wilson v. P.G.E. Company, supra (at 395-97), it was held that "retention” by defendant of the "right * * * to direct the manner in which the work is done” or "to impose safety measures” does not impose a duty to comply with requirements of the Act (to "use every care, device and precaution” practicable etc.) because the retention of such a right created no "risk *1173of danger to plaintiff’ and because the imposition of liability under the Act for "reservation of the right to impose safety measures, would defeat the very purpose the Act was designed to accomplish.”
In my judgment, the facts of this case are so different as to make it improper to apply the rule of Wilson for at least two reasons:
(1) The contract in Wilson was a contract between an owner and a contractor, and a contract which did no more than reserve to the owner the "right to impose safety measures.” In this case, however, the basis for defendant’s liability is not the contract between defendant and its contractor, but the preceding and separate contract between defendant and the union and was a contract which did more than reserve to defendant "the right to impose safety measures,” but imposed upon defendant the duty to do so.
The contract, by its terms, provides that defendant ’’shall require” its contractors to maintain previously existing working conditions, which it was conceded to include safety measures. To hold that this union, whose primary interest was to protect the workmen, negotiated, by this contract, a provision which did no more than confer upon defendant a "right” to impose such safety measures would render this contract provision completely illusory. By the terms of the Employers’ Liability Act it is clear that an owner who is "responsible” for work involving risk hazard and danger is subject to the requirements of that Act, i.e., an owner who has the "duty,” not merely the "right,” to see that safety measures are adopted and followed. Once that duty is imposed, it is a nondelegable duty and cannot be delegated by the owner to a contractor. Cf. Camenzind v. Freeland Furniture Co., 89 Or 158, 180, 174 P 139 (1918).
(2) Although not stated by the majority, a necessary element of the rationale of Wilson is that an owner who does no more in a contract with a contractor than to reserve a right to impose safety measures is *1174not subject to the Employers’ Liability Act when he "derives no possible pecuniary benefit from the reservation.” (252 Or at 396) Not only is that necessary element absent in this case, but the contrary appears.
It may be that an owner who includes in a contract with a contractor "the right to impose safety measures” derives "no possible pecuniary benefit” as a result. Again, however, this case is not primarily concerned with the terms of the contract between defendant and its contractor, but with the contract between defendant and the union which then represented defendant’s fallers and buckers.
Obviously, defendant’s primary reason for negotiating this contract provision which is the subject of this case was not its concern for the safety of the fallers and buckers, but the expected "pecuniary benefits” resulting from the subcontracting of the falling and bucking work. Having negotiated that compromise which permitted defendant to subcontract its falling and bucking and to gain thereby the resulting "pecuniary benefits,” defendant then entered into a separate contract for the subcontracting of that work, which was then (according to evidence offered by the plaintiff) performed by a crew of four, without a bull buck, who in the past had been the person primarily responsible for seeing that proper safety measures were enforced, and without continuing previous safety precautions.
In my judgment, it is wholly unrealistic to say that as a result of this provision in its contract with the union, even if construed as one which did no more than "reserve the right to impose or require safety precautions,” defendant "derive[d] no possible pecuniary benefit.”
There is "another reason” why, in my opinion, it is improper for the majority to hold that to impose liability under the Employers’ Liability Act because the retention of the "right” by the defendant to require its contractors to continue previously existing working *1175conditions relating to safety would be "contrary to the policy of the Act” and to cite Wilson in support of that proposition.
It is of interest that this proposition, as set forth in Wilson by the writer of this majority opinion, not only interjected a completely new theory of "nonliability” under the Employers’ Liability Act, but one not supported by the citation of any decisions by this or any other court and one which was completely different from the reasons urged by the defendant upon the appeal of that case.
Of more importance, however, is the fact that there was no such contention by this defendant in this case. Plaintiff contended that Wilson was not controlling for much the same reasons as stated in this dissent. In response, however, defendant did not contend that Wilson was controlling for reasons stated by the majority, but contended only that in this case it "retained no right of control” in the agreement with its contractor and that under its contract with the union it need only require its contractor "to follow all laws relating to conditions of labor and its safety.” Yet the majority would extend the rule of Wilson to an owner who not only has a "right,” but a "duty” to require its contractors to continue "previously existing safety practices.”
This "other reason,” as stated by the majority as the basis for its decision, is pure dictum and is not necessary to support the decision by the majority. In my opinion, it is bad practice for this court to state such "other reasons” to support decisions under circumstances such as those involved in this case. We have only recently experienced the results of such a practice. See Real Good Food Store v. First National Bank, 276 Or 1057, 557 P2d 654 (1976).
There may be rare cases in which such a practice may be proper, such as in cases in which it appears that the trial court should be affirmed, but the parties *1176did not state the proper reason for doing so and there is no other proper basis for affirming the trial court. This is not such a case.
For these reasons, I believe that plaintiff’s decedent was entitled to the benefits of the Employers’ Liability Act and that the trial court erred in withdrawing from the jury that "count” of plaintiff’s complaint. Accordingly, I must respectfully dissent.
In May v. Chicago Insurance Co., 260 Or 285, 292, 490 P2d 150 (1971), it was held that such a question of fact is a proper question of fact for submission to a jury.