Childers v. Schaecher Lumber Co. ( 1963 )

SLOAN, J.,

dissenting.

Boling v. Nork, 1962, 232 Or 461, 375 P2d 548, was incorrectly decided and should not he adhered to.

It seems strange to say that the size of the article being delivered or the equipment that may be required to load or unload it, should be the basis for a definition of “pickup and delivery.” In this day, when virtually all movement of “goods, wares or merchandise” is by mechanical process, it is incongruous, to say the least, to decide these cases on the basis of the complexity of the machinery engaged in the movement of goods. Such a basis for decision ignores that ever larger containers, machinery, equipment and other goods are constantly in the flow of commerce. Nor does the “massing of men and machinery” provide an answer. In the instant case there were only two men engaged in the work, a fairly typical situation.

In future cases will we decide what is “pickup and delivery” by the size of the container being handled or by the nature of the goods within the container? Will the delivery of large cartons of paper supplies be within the statute and the delivery of large rolls of newspaper print excluded? Logs delivered to a mill are now excluded from the statute. Will heavy timbers being taken from a mill be treated the same? One can only speculate as to a decision involving the delivery of heavy structural steel and similar materials of countless variety.

The court has established a test which will cause the trial courts to exercise considerable guesswork in deciding these cases. Instead the court should follow what the legislature intended and hold that every delivery of property from one place to another is “pickup and delivery.”