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9acb96cb-679d-48ba-b0e9-c35fec112460 | Sullivan v. Sullivan | 236 Or. 192, 387 P.2d 571 | null | oregon | Oregon Supreme Court | Affirmed December 18, 1963.
J. Wallace Gutzler, Woodburn, and Steve Anderson, Salem, argued the cause and Steve Anderson filed briefs for appellant.
Harry F. Elliott, Hillsboro, argued the cause and filed a brief for respondent.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL and DENECKE, Justices.
AFFIRMED.
*193 McALLISTER, C.J.
This is an appeal by the plaintiff, Nancy J. Sullivan, from an order which granted custody of her two children to the defendant, Gerald A. Sullivan, the father of the children.
On April 14, 1962 the parties were divorced by a decree entered in the circuit court for Washington county, in a contested suit brought by the plaintiff. The decree was in favor of the plaintiff and gave custody to her of both children of the parties, Michele Ann, then three and one-half years old, and Michael James, then one and one-half years old. After the divorce the plaintiff continued to live in Hillsboro, until about September 1, 1962, when she moved to Woodburn, where she had secured employment at the MacLaren School for Boys.
On about January 4, 1963, the defendant filed a motion for an order transferring the custody of the children to him. The motion charged that since the entry of the decree of divorce plaintiff had "pursued a course of gross moral misconduct" in the home in which she and the children were living. After a hearing the trial court found that the charges were substantially true and that the interests of the children would be best served by transferring their custody to defendant. An order changing the custody was entered on January 22, 1963, and this appeal is taken by plaintiff from that order.
It would serve no useful purpose to here report in detail the conduct of plaintiff which impelled the circuit judge to take her children from her. We have carefully studied the record and agree with the trial judge that for the best interests of the children they should be placed in the custody of the father.
The decree is affirmed. | 9295085a91b687fb66d79c0788eae1d27240dc825d7f8848f2200fc6206b81b6 | 1963-12-18T00:00:00Z |
4236c89e-717b-430e-be13-4fb11917a0ff | Peters v. SIAC | 236 Or. 27, 386 P.2d 800 | null | oregon | Oregon Supreme Court | Affirmed November 13, 1963.
Gerald C. Knapp, Assistant Attorney General, Portland, argued the cause for appellant. With him on the brief were Robert Y. Thornton, Attorney General, and Ray H. Lafky, Assistant Attorney General, Salem.
Berkeley Lent, Portland, argued the cause for respondent. *28 On the brief were Peterson, Lent & Paulson, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, DENECKE and LUSK, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the defendant, State Industrial Accident Commission, from an order of the circuit court which sustained the plaintiff's motion for a new trial and thereby vacated a judgment previously entered by the court in the defendant's favor. The vacated judgment was based upon a jury's verdict. The plaintiff is a workman who sustained an injury while working for an employer who was subject to the act administered by the defendant commission.
The single assignment of error submitted by the defendant-appellant reads: "The court erred in granting plaintiff's motion for new trial."
In a prior proceeding instituted by the plaintiff he had established his right to receive from the defendant commission compensation for an injury that had befallen him. Still later he filed an Application for Increased Compensation on Account of Aggravation. The application was denied and thereupon the plaintiff appealed to the circuit court. The appeal to that court eventually led to the order which is now under consideration.
From the order of the circuit court which granted a new trial we quote the following:
ORS 17.325 states:
The court room is, therefore, the place for the trial judge to give his instructions to the jury.
ORS 17.305, in referring to the bailiff, states:
We believe that the procedure employed in this case, as revealed by the order from which we quoted, was in violation of the two above sections of our code. *30 Carson v. Brauer, 234 Or 333, 382 P2d 79, and State v. Kristich, 226 Or 240, 359 P2d 1106. A statement made to the jury by the trial judge that the plaintiff is receiving compensation whether the information comes from the judge's own knowledge or is merely reiterative by him of a witness's testimony is upon a material issue in the case.
The order granting the new trial is affirmed. | 8f549e58d97679d74649d317340f904cdcb54c8caff428f98e9aaebb3b77cbd4 | 1963-11-13T00:00:00Z |
c246e933-1f69-4208-be0a-16d84b5b9757 | Foxton v. Woodmansee | 236 Or. 271, 388 P.2d 275 | null | oregon | Oregon Supreme Court | Reversed and remanded November 13, 1963.
Petition for rehearing denied January 15, 1964.
*272 Hugh B. Collins, Medford, argued the cause for appellant. On the brief were Collins, Redden & Mullen.
Gerald H. Robinson, Portland, argued the cause for respondent. On the brief were Peterson, Lent & Paulson and Lohman & Robinson.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
LUSK, J.
This is an action for malpractice against an osteopathic physician and surgeon. The jury returned a verdict for the defendant which the court set aside. The defendant appeals.
The plaintiff, a woman 55 years of age, sustained a Colles' fracture of her right wrist as the result of a fall on an icy stepping stone in her back yard. She consulted the defendant, who sent her to the Portland Osteopathic Hospital where he reduced the fracture. The operation was performed on the evening of January 12, 1960, the day that plaintiff was injured. On July 20, 1961, plaintiff filed her complaint alleging *273 that the negligence of the defendant has caused her pain and suffering, displacement and abnormality of the right wristbones and deformity and stiffness of the hand and fingers, nerves and soft tissues.
The case was tried upon an amended complaint, in which the specifications of negligence are as follows:
After the verdict for the defendant was returned the judge announced from the bench that he would set it aside on his own motion on the ground that there was undisputed evidence that defendant was negligent in "leaving the cast to the fingertips for too long a period or leaving the cast on to the fingertips". Subsequently the plaintiff filed a motion for a new trial and the court entered an order granting such motion on all the grounds therein specified and specifically ordering a new trial on its own motion on the grounds theretofore stated from the bench.
The sole question is whether there is adequate basis in the record for the order.
A brief statement of the evidence becomes necessary.
A Colles' fracture was defined by one of the expert witnesses as "an upward displacement of the distal *274 end of the radius bone, which is the upper arm bone next to the thumb." By upward he meant "bending up toward the back of the hand rather than the palm." The defendant had the arm X-rayed and from the film made an X-ray diagnosis of a comminuted impacted Colles' fracture of the plaintiff's right wrist. Reduction of the fracture was accomplished while the plaintiff was under a general anesthetic and the plaintiff's right arm was thereafter placed in a plaster of Paris cast in "mid-position" by which the radius is maintained straight with the hand tipped slightly to the ulna side, that is, toward the little finger. The cast extended about to the end of the little finger and exposed the tips of the other three fingers. Because of the "hypermobility" of the fracture, the defendant extended the cast "beyond the average to help maintain the position of the hand and to prevent as much as possible the retraction of the head of the radius, which is our problem." The defendant intended to cut the cast back at the end of three weeks to allow for freedom of the fingers.
On January 13, 1960, the date following the operation, the defendant ordered the plaintiff discharged from the hospital.
Doctor Woodmansee saw the plaintiff in his office a number of times thereafter. She was very much concerned about the outlook for the appearance of her wrist and the effect of the injury on her work. She was at the time she sustained her injury a billing clerk, whose duties included operating a computer. The defendant explained to her that only time would tell about these things, that the immobilization would have to be maintained for some time and that she was "really going to have to work at it to get the function in there". By working at it he meant carrying *275 out a program for exercising the hand and fingers. Ultimately the defendant concluded that he was not "getting through to her" and called in Doctor John E. Scanlon for consultation. Doctor Scanlon is an osteopathic physician and surgeon on the staff of the Portland Osteopathic Hospital.
Doctor Scanlon concluded from his examination of the X-rays that "this was a very difficult fracture," that it was "severely comminuted" and that it "would be very difficult to hold these fragments in their proper alignment." He felt that a remanipulation and recasting would bring about an improvement on the previous reduction and so recommended to the plaintiff.
She consented and on January 26, 1960, Doctor Scanlon, with the defendant assisting, "rendered a closed reduction under anesthesia" and casted the arm in what is called the Cotton-Loder position in which the fingers are bent downwards towards the palm. A medical witness testified that it is sometimes called the bell boy position, because "it is like a bell boy reaching for the tip in the back".
The plaintiff thereafter continued to be under the defendant's care. On March 4, 1960, the cast was removed by a technician at the hospital. The defendant was present. From then until April twenty-sixth, the defendant saw the plaintiff about twice a week for the purpose of instructing her in the exercises necessary to overcome the stiffness in her hands and fingers. The defendant testified that he "kept insisting that she wasn't doing enough, because she wasn't getting the result that should have been expected" and she said that she was exercising "but it hurt too much," and he told her in response that "she had to do it in spite of some hurt."
*276 Doctor Edwin A. Mickel, an orthopedic surgeon called by the plaintiff, testified that there was a foreshortening of the radius of the plaintiff's right arm due to the failure to put the original cast in the proper position and that this was not done until two weeks later when it was too late to do anything about it. In Doctor Mickel's opinion the right position was the Cotton-Loder position. There was no dispute about the fact that the radius was foreshortened, but there is conflict in the evidence as to whether the method used by the defendant was a proper method and whether the foreshortening of the radius was due to the method used by the defendant or was something impossible to have been avoided, in view of the character of the fracture, no matter what method was employed. There is no conflict about the fact that the plaintiff suffered certain abnormalities and stiffness in the right hand and fingers and wrist, but whether these were the result of the alleged negligence of the defendant in casting the plaintiff's arm in a position which Dr. Mickel considered improper, was a jury question. We do not understand that the plaintiff contends otherwise.
The trial judge based his ruling that the defendant was guilty of negligence as a matter of law upon certain testimony given by Doctor Scanlon on direct examination. Doctor Scanlon was asked by the attorney for the defendant whether he had an opinion as to "whether or not the application of the Cotton-Loder cast achieved any result superior to that which would have been achieved had the original cast or the original cast position been left alone." An objection to the question was sustained. The witness was then asked substantially the same question, but limited *277 solely to shortening of the radius. The testimony continued:
The trial judge, in announcing his ruling that he would order a new trial on his own motion, referred to this testimony as an admission of malpractice on Doctor Scanlon's part. He continued:
*278 1, 2. We are unable to concur in this appraisal of the evidence in question. It may be assumed for present purposes that in the circumstances of this case Doctor Woodmansee would be liable for any negligence of Doctor Scanlon in the latter's care and treatment of the plaintiff. See Ybarra v. Spangard, 25 Cal 2d 486, 490-492, 154 P2d 687, 162 ALR 1258. In any case the defendant continued his care of the plaintiff after the Cotton-Loder cast was applied. But Doctor Scanlon as a witness on the trial of this case was not an agent of Doctor Woodmansee. Certainly his statements in court were not made dum fervet opus. No admission of his as a witness would bind the defendant. The court appears to have treated the testimony as a judicial admission of the defendant. The brief of the plaintiff so characterizes it. But a judicial admission is one made by a party or his attorney for the purpose of dispensing with proof of a fact in issue. Garvin v. Western Cooperage Co., 94 Or 487, 499-500, 184 P 555; 20 Am Jur 469, Evidence § 557; Black's Law Dictionary (4th ed) 69. Doctor Scanlon was not a party to this litigation.
3. Furthermore, even though the statement had been made by Doctor Woodmansee himself, it would not have been an admission of negligence. The applicable rule has never been better put than in Staloch v. Holm, 100 Minn 276, 279, 111 NW 264, 9 LRA NS 712 (per Jaggard, J.):
See, also, Donahoo v. Lovas, 105 Cal App 705, 710, 288 P 698; Quickstad v. Tavenner, 196 Minn 125, 264 NW 436; Phillips v. Powell et al, 210 Cal 39, 43, 290 P 441; 70 CJS 1005, Physicians and Surgeons § 62.
Either the defendant or Doctor Scanlon, in retrospect, might have come to realize and conceded that the cast should have been removed earlier than it was without admitting the charge of malpractice. The principle involved was embodied in the following portion of the court's instructions:
*280 4. There was no expert testimony in the case as to the length of time during which, according to the standards of the medical profession in the community (and so far as this case is concerned the standards for medical doctors and osteopaths are the same) the arm of a person suffering from a Colles' fracture may properly be kept in a cast, regardless of the position in which the arm is placed. There is evidence that when the arm is placed in the Cotton-Loder position the cast is commonly or ordinarily kept on for a period no longer than six weeks. The cast in the Cotton-Loder position remained on the plaintiff's arm for 36 days. While the jury might have found from the evidence that the defendant was negligent in failing to remove the Cotton-Loder cast before he did, it is our opinion that this was a question of fact and that the court below erred in setting aside the verdict on the ground that negligence in this regard was established as a matter of law.
In point of fact, to decide the question on the strength of Doctor Scanlon's testimony is to decide it upon an issue not tendered in the amended complaint. The charges of negligence (aside from the charge of defendant's lack of experience and knowledge as to which there is no evidence) are (1) that the defendant placed a cast on the plaintiff's arm in the wrong position, (2) that the cast extended too far outward on the fingers of the plaintiff, and (3) that the defendant failed and neglected to remove the first cast and replace it with another in the proper position. The evidence is that the first cast was replaced with another in the Cotton-Loder position, which, according to the plaintiff's medical witness, was the only proper position. It is not charged that the second cast was kept on the plaintiff's arm for too long a period of *281 time. Neither is it charged that this cast extended too far outward on the plaintiff's fingers and there is no testimony to that effect. Doctor Mickel testified that the Cotton-Loder cast extended "down to the middle of the fingers" but that "you need that position to properly set the fracture".
The precise ground of the court's ruling was that it should have advised the jury that the defendant was negligent with regard to one point, namely, "leaving the cast to the fingertips for too long a period or leaving the cast on to the fingertips." The cast which extended to the fingertips (the first one) was left on the plaintiff's arm for two weeks. There is evidence that a cast so applied may cause stiffness of the fingers and that the usual practice is to extend the cast only as far as the knuckles of the hand. But the defendant considered, as shown by his testimony quoted above, that because of the hypermobility of the fracture it was desirable to depart from the usual practice in order to reduce as much as possible the retraction of the head of the radius.
5. Doctor James W. Brooke, a physician and surgeon called by the defendant, testified that by this procedure the fragments can be better stabilized. Doctor Mickel recognized the problem inherent in the need for immobilization on the one hand and freedom of function of the fingers on the other. Faced with this dilemma and in view of the severity of the fracture, the defendant made the deliberate choice to extend the cast in the manner he did, intending to cut it back at the end of three weeks. We think that it cannot be said as a matter of law that the defendant was negligent in this decision, rather than that he committed an error of judgment, if such it was. See Malila v. Meacham, 187 Or 330, 354, 211 P2d 747.
*282 As previously stated, the court, in addition to ordering a new trial on its own motion on the ground just discussed, sustained a motion for a new trial filed by the plaintiff on all the grounds therein specified. The grounds are numerous and include the court's failure to give 12 instructions requested by the plaintiff. As to five of these requests it is conceded by counsel for the plaintiff that they were adequately covered by the court's instructions and as to another that there was no evidence to support it. We have examined all the grounds of the motion which are insisted upon in the plaintiff's brief and are of the opinion that none of them has merit. Discussion of them would serve no useful purpose.
The judgment is reversed and the cause is remanded with directions to enter judgment upon the verdict of the jury.
*283 Gerald H. Robinson and Peterson, Lent & Paulson, Portland, for the petition.
PETITION FOR REHEARING DENIED.
LUSK, J.
In a petition for rehearing the plaintiff criticizes our opinion as erroneously applying the same standard of judicial review to an appeal from an order setting aside a judgment and granting a new trial as is proper *284 when the appeal is from the judgment. We quote from the petition:
6. It is true that this court examined the record in this case to determine whether it disclosed error, but it is not correct to say, as counsel for plaintiff apparently think, that the trial court in this state has discretion to set aside the verdict of a jury regardless of error. That is the rule in other jurisdictions, but not in Oregon where the constitution prohibits the re-examination by any court of a fact tried by a jury.[1] It is an *285 erroneous notion that the circuit courts of this state have discretion to order a new trial because the presiding judge thinks that a jury has returned an unjust verdict or one which is against the weight of the evidence.
The opinion of Mr. Justice RAND in Timmins v. Hale, 122 Or 24, 32-33, 256 P 770, contains a definitive statement of the limitations on the power of the circuit courts in this regard. After reviewing prior decisions, the court there said:
Plaintiff cites Strandholm v. Gen. Const. Co., 235 Or 145, 382 P2d 843, where, citing Lyons v. Browning et al, 170 Or 350, 354, 133 P2d 599, we said:
In both these cases the decisions affirming the orders granting a new trial were based upon errors committed on the trial. This is also true of Neal v. Haight, 187 Or 13, 206 P2d 1197 (another case cited by the plaintiff) where we said at page 31:
7-9. Apart from the foregoing, the plaintiff argues again that errors were committed on the trial and that among these was the failure of the trial court to give a peremptory instruction that the defendant was negligent. We considered this question at length in our former opinion and think it unnecessary to restate our reasons for rejecting the plaintiff's contention. It may be added, however, that the petition for rehearing, in effect, concedes that there was conflict in the evidence upon the effect of the "prolonged immobilization" of plaintiff's hand when it says:
ORS 41.260 reads:
Even though there was no other evidence favorable to the defendant on the question, his testimony made an issue for the jury and the jury were the sole judges of his credibility. The fact that, as counsel for the plaintiff say, Dr. Woodmansee "may be said to have a certain interest in the outcome of the case" was a proper matter to be considered by the jury in appraising his testimony, but is irrelevant to the question whether there was a conflict in the evidence.
10. We expressed the view in our former opinion that the other grounds upon which the order for a new *288 trial was based did not have sufficient merit to warrant discussion. Two of these are again called specifically to our attention by the petition for rehearing and will be briefly noticed. The court instructed the jury as follows:
Counsel for the plaintiff, in excepting to the instruction, stated:
Counsel for the defendant agreed with the objection and asked that the jury be so instructed. The court announced that he would so advise them and counsel for the plaintiff withdrew the objection. The court then said that there was no evidence to establish the fact that the plaintiff did not follow instructions to the best of her ability, whereupon counsel for the plaintiff saved an exception to giving the instruction.
The situation presented by this record is somewhat like that we dealt with in the recent case of *289 Strandholm v. Gen. Const. Co., supra, where insurance was improperly injected into the case to the prejudice of the plaintiff. The circuit court granted a new trial for this error and this court sustained the order notwithstanding that counsel for the plaintiff had deliberately refrained from moving for a mistrial. The difference between the two cases is that the error in the Strandholm case was prejudicial, while here the error, if any, was immaterial, since the instruction complained of related to the measure of damages and the jury returned a verdict for the defendant. Thus, it was said by Mr. Justice BRAND in Penn v. Henderson, 174 Or 1, 20, 146 P2d 760:
11. The other claimed error to which specific attention is called consisted in the court instructing the jury that the standard of care which the defendant was required to employ was that of the ordinarily prudent, careful and skillful osteopath. The plaintiff argues that because expert testimony for the plaintiff was given by Doctor Mickel, a doctor of medicine, the jury might have reasoned that he had reference in his *290 testimony to a standard of care somewhat different from that which applied to the case under the court's instruction.
Before Doctor Mickel gave any testimony relative to the immediate issues in this case, he was asked the following question:
He answered: "Yes." There is no evidence to the contrary and no contention to the contrary. It is fanciful to suggest that when Doctor Mickel was later asked by counsel for the plaintiff to explain the standard of care in the community for the reduction of a Colles' fracture and answered the question, any juror would assume that either counsel for the plaintiff or the witness was referring to a standard of care not applicable to the defendant. Since the defendant is an osteopath and the evidence reveals without contradiction that, so far as this case is concerned, he was governed in his treatment of the plaintiff's injury by the same norms that apply to medical doctors, it was entirely proper for the court to instruct upon the standard of care applicable to osteopaths. It seems to us that the plaintiff's criticism of the instruction is captious.
The petition for rehearing is denied.
[1] "In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict. * * *" Oregon Constitution, Article VII, § 3. | 1e4d59a66d664e1cf9c7160f8384cd54dbd0de3121ed9bf757319e9d426c9f57 | 1963-11-13T00:00:00Z |
22191f52-f734-412c-b019-c5c04bd86c75 | Beatty v. Cake | 236 Or. 498, 390 P.2d 176 | null | oregon | Oregon Supreme Court | Reversed and remanded December 11, 1963.
Petition for rehearing denied March 10, 1964.
*499 William C. Martin, Portland, argued the cause for appellant. On the brief were Dusenbery, Martin, Beatty & Parks, Verne Dusenbery and David P. Templeton, Portland.
William Love, Portland, argued the cause for respondents. With him on the brief were Cake, Jaureguy, Hardy, Buttler & McEwan, and John R. Faust, Jr., Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, Justices.
PETITION DENIED (No opinion)
REVERSED.
SLOAN, J.
Plaintiff is the administrator of the Oregon assets of the estate of Nathaniel E. Berry, deceased. In 1953, Berry created an inter vivos trust for the benefit of the employes of Equitable Savings & Loan Association, subject to certain benefits to be paid to Berry during his lifetime. The corpus of the trust was real property, of substantial value, situate in Klamath Falls. Defendants are the present trustees of the trust estate. Originally there was one trustee. In 1956, Berry died intestate. His domicile at the time of his death was in the state of Washington. The value of the inter vivos trust estate was added to his gross estate for federal tax purposes. The total federal estate tax was paid by the administrator of his estate. This action was filed to recover from defendant trustees the additional tax attributable to the enhanced value of the gross estate by the inclusion therein of the value of this trust estate. The trial court denied recovery, plaintiff appeals.
*500 There are two issues of decisive importance presented by this appeal. It is necessary to first decide a conflict of law question and, secondarily, shall the doctrine of equitable apportionment be adopted for cases of this kind.
The original trust was created by deeds of trust. The deeds were executed by Mr. Berry and Gerda Berry, the common owners of the real property. The terms of the deeds of trust were augmented by a supplemental agreement executed by the donors and the trustee in 1955. The provisions of this supplemental agreement with respect to the payment of taxes, other than gift taxes, are inconclusive. Nor do we find in any of the trust documents any other evidence of the intent of the donors, express or implied, which could guide us to decision. The documents being absent of any showing of intent, plaintiff urges that we adopt the doctrine of equitable apportionment. The application of the concept of equitable apportionment, as it is identified and explained in cases later to be cited, would require defendant trustees to reimburse plaintiff for the enhanced federal estate tax plaintiff was obliged to pay. It is necessary, however, that we resolve the conflict of law issue before we reach the problem of apportionment.
The conflict is created by these facts: The donor, Mr. Berry, whose estate is involved, was domiciled at his death in the state of Washington. His estate was subject to probate in Washington. It is conceded that Washington has refused to adopt the apportionment rule. Seattle-First Nat. Bk. v. Macomber, 1949, 32 Wash2d 696, 203 P2d 1078. For obvious reasons defendants urge that we follow the law of the domicile.
On the other side of the conflict we have a trust agreement executed in Oregon; the trust estate is immovable *501 property situate in this state. The trustees and, we assume, most of the beneficiaries are residents of Oregon. Although the trial court held that O'Donnell et al v. Scott, 1945, 176 Or 500, 159 P2d 198, ruled against the apportionment of federal estate taxes, we are of the opinion that the question was not considered in that case and is, therefore, an open one in this court. Thus, it becomes necessary to decide if the law of the domicile or that of the situs of the trust and the trust property should apply. And we have no controlling precedent by this court in respect to this kind of a conflict.
1. As a preface or introduction to the problem reference should be made to Scoles, Apportionment of Federal Estate Taxes and Conflict of Laws, 1955, 55 Col L Rev 261. It is the most comprehensive exposition of the subject that can be found. Although we do not follow the solution to the problem suggested by Professor Scoles, any discussion of the issue would be incomplete without mention of this article. More specific reference will be made later.
The contending case authority on this conflict is exemplified in New York and Massachusetts decisions. The leading cases in New York are: In re Gato's Estate, 1950, 276 App Div 651, 97 NYS2d 171, 301 NY 657, 93 NE 2d 924; In re Abry's Trust, 1961, 214 NYS2d 555, and In re Peabody's Estate, Sup Ct. 1952, 115 NYS2d 337. These New York cases hold that the law of the domicile shall control. The Supreme Judicial Court of Massachusetts emphatically holds to the contrary. Issacson v. Boston Safe Deposit & Trust Co., 1950, 325 Mass 469, 91 NE2d 334. The Massachusetts court voices this criticism of the New York decisions:
We agree.
Reference to the authorities in regard to the more usual conflicts in respect to the validity of a trust, or in regard to the interpretation of a trust document, or as to the administration thereof are uniformly governed by the law of the situs. This is particularly true in a trust of immovables. Leflar, The Law of Conflict of Laws, 1959, Chapter 24; Scott, What Law Governs Trusts?, 1960, 99 Trusts & Estates, 186. Ehrenzweig, in Chapter Seven, of his work on Conflict of Laws, 1962, voices some criticism of this more traditional rule but recognizes that it is virtually axiomatic. In the previously cited article by Scoles he also declares:
However, Professor Scoles is an advocate of applying the law of the domicile to these cases. He believes that it will favor uniform treatment of the estate. He also appears to believe that apportionment would, therefore, be more likely to be required. However, he would follow the New York decisions, regardless of the apportionment result. We are not persuaded that these *503 results would necessarily follow if we should, in all cases, apply the law of domicile.
The authorities last cited would lead to the conclusion that any other problem which might arise in respect to this trust would be governed by Oregon law. The fortuitous circumstance of the place of the donor's death, whereby domicile may be fixed, would not seem to be the dominant consideration to determine the choice of law to apply to the problems involving a trust estate of the character now before us. For example, the evidence discloses that Mr. Berry died while in Peru. If, by chance, his domicile had been established there, would the rule defendants advocate require that we apply the law of that nation? We think, rather, that there is greater significance to be attached to the state wherein the trust property and the administration thereof is to be found.
The interesting case of The Attorney-General v. The Jewish Colonization Association, 1900, 1 Queen's Bench 123 (CA), involved a trust of several million pounds for the benefit of Jewish refugees. The donor was a resident of Austria. The trust instrument was executed in England and administered by English trustees. The property was largely stocks and bonds of continental banks, held by the trustees. The opinions of the judges, in part rely on evidence of the donor's intent as a basis for deciding a conflicts question. But the opinions also express other sound reasons why the "* * * property in question must have an English character, * * * stamped upon it, * * *." 1 Queen's Bench, pages 136, 137.
If all of the states would apply the law of the domicile to the question at hand then, of course, uniformity would follow. But, as we have learned, uniformity of *504 decision does not exist. So long as divergent views do prevail it would seem that an Oregon resident, who desires to create a plan for the entire disposal of his estate, would feel greater certainity of result if he knew that Oregon law would govern.
We conclude that by any test suggested by the authorities for solving the conflict question presented in this case (save the mentioned argument of Professor Scoles) Oregon law should control. We have found nothing that convinces that the traditional rule is any less appropriate here than in any other question that might confront this trust estate. This, of course, requires that we decide the apportionment question.
2. A brief historical review will help disclose the course by which the older doctrine of equitable apportionment was transposed into the area of federal estate taxation.
Since 1916, the federal estate tax "* * * [was] made a charge upon the estate, and [was] to be paid out of it by the executor substantially as other taxes and charges are paid.[*]" (Footnote omitted). 1 Paul, Federal Estate & Gift Taxation, 1942, § 13.16, page 711. No one quarrels with that statement of the obligation for the initial payment of the tax. Except for certain specific requirements, not pertinent here, the federal statutes have been silent as to any responsibility for contribution to the payment of the tax by those who actually receive the property which is includable in the total property valued for estate tax purposes. The question is: should the court, in the absence of state or federal statute, require an equitable apportionment of the burden of the tax amongst those takers of the property subject to the tax? The question just stated would include the liability for contribution *505 from those who take by will, intestacy or by any other taxable transfer activated by the death of the person whose estate is subject to the federal tax. In the instant case, of course, our answer to the question is limited to the inter vivos trust at hand. Obviously, this trust estate was not otherwise subject to probate administration.
The authorities are in substantial agreement that prior to 1942 it was thought that the federal statutes which imposed the estate tax had "* * * preempted the field and that it was not open to the State courts to create other or different exceptions." Fleming, Apportionment of Federal Estate Taxes, 1948, 43 Ill L Rev 153, 155. This prevailing thinking caused the state courts to create a general rule that apportionment would not be allowed except when the will or other dispositive document expressly required it.[1] See Annotation, 117 ALR 1191; Matter of Del Drago, 1941, 287 NY 61, 38 NE2d 131. The New York Court of Appeals, in Del Drago, held a New York apportionment *506 statute was repugnant to the federal estate tax statutes and, therefore, violated the federal supremacy imposed by Article VI, Clause 2, of the Federal Constitution. The opinion in Carpenter v. Carpenter, 1954, 364 Mo 782, 267 SW2d 632, examines this historical background and explains why the doctrine of equitable apportionment is appropriately applied to these cases.
In 1942, the Supreme Court in Riggs v. Del Drago, 317 US 95, 63 S Ct 109, 87 L Ed 106, 142 ALR 1131, reversed the New York Court of Appeals (Matter of Del Drago, supra) and held that Congress had not preempted the field. Del Drago decided that:
Since that decision several states have adopted apportionment statutes. The National Conference of Commissioners on Uniform State Laws have proposed for adoption a Uniform Estate Tax Apportionment Act, Report of the National Conference of Commissioners on Uniform State Laws, 1958, and, "In jurisdictions which have passed upon the question for the first time since 1942,[*] it is generally held that the burden of estate taxes must ultimately be borne by every part of the taxable estate and that every beneficiary must pay a pro rata share of the tax." (Footnote omitted.) Annotation 37 ALR2d 171.
The genesis of the immediate problem is like that described by Scoles, supra, 55 Col L Rev 261, 279:
The trend of the courts and the legislatures to adopt rules of apportionment is understandable. The devolution of property at the incidence of death is increasingly accomplished by devices other than by will or by intestacy. If apportionment is not required these devices can place an unconscionable burden upon that part of an estate subject to probate. There is no persuadable reason to invariably compel a residuary legatee or the heirs of an intestate to bear the entire burden of federal estate taxation when, as in this case, clear indicia of intent is lacking and it appears that the tax consequences are accidental. The cases that, since 1942, have adopted the apportionment rule are predicated upon reasoning that induces adherence. See for example, Carpenter v. Carpenter, supra, 364 Mo 782; McDougall v. Bank, 1952, 157 Ohio 45, 104 NE2d 441; Trimble v. Hatcher's Ex'rs. 1943, 295 Ky 178, 173 SW2d 985. 1 Paul, Federal Estate and Gift Taxation, 1942, § 13.54, written prior to the decision in the Del Drago case, (supra, 317 US 95), recognized the inherent equity of requiring beneficiary contribution to the payment of the tax.
We hold that the defendant trustees shall pay the pro rata portion of the estate tax attributable to the addition of the value of the trust estate to the total value of the taxable estate. It will be necessary for the trial court to determine that amount.
The case presents another issue that must be decided.
3. The supplemental trust agreement executed in 1955 by the donors and the original trustee provided that:
In addition to that clause in the written trust document there are in evidence letters written by the original trustee, shortly after the original deeds of trust were executed, in which he assured the donor that the gift taxes would be paid by the Equitable Savings & Loan Association. However, no gift tax returns were filed until after Mr. Berry's death. Hence, penalties and attorneys' fees were incurred when the returns were filed and the amount of the tax settled with the federal internal revenue agents.
The trial court held that even though the trustee was obligated to pay the amount of the tax it had been the duty of Berry to file the return. The court, accordingly, held that the trust could not be charged with the penalties and attorneys' fees. We disagree. We think that the assurances given to Mr. Berry in respect to the gift taxes could have caused him to believe that either Equitable or the trustee would have ascertained the amount of and paid any gift tax liability incurred. We think the trustee should reimburse the administrator for the costs and attorneys' fees.
The case is remanded to the trial court to determine the total amount now due plaintiff and to enter judgment accordingly.
Neither party shall be allowed costs.
Reversed.
John H. Buttler, William E. Love, and Cake, Jaureguy, *510 Hardy, Buttler & McEwen, Portland, for the petitioners.
No appearance contra.
O'CONNELL, J., dissenting.
I do not join with the majority in denying the petition for rehearing. The brief in support of the petition for rehearing makes it appear to me that our original opinion was wrong and that we should have applied the law of Washington, the state of the decedent's domicile.
The law of the situs of real property should be applied in deciding questions relating to such property. But the question present in the instant case does not directly relate to the real property in Oregon; the question here relates only to the manner in which the federal tax is to be imposed upon the beneficiaries of the trust.
I believe that the apportionment rule is preferable to that which imposes the tax on the residuary beneficiaries. But I think that it is more important to have a unitary rule which applies to all of the assets of the trust. The only way this can be accomplished is to apply the law of the domicile. There are other reasons pointed out in petitioner's brief and in the article by Scoles, Apportionment of Federal Estate Taxes and Conflict of Laws, 55 Colum L Rev 261 (1955) cited in the original opinion which further support the choice of the law of the domiciliary state. I would grant the petition.
ROSSMAN, J., joins in this opinion.
[1] Section 208 of the Revenue Act of 1916, and later re-enactments in similar form, was the federal statute that prompted the state courts and other authorities to yield, almost without dispute, to the idea of federal preemption. But see Hampton's Adm'rs. v. Hampton, 1920, 188 Ky 199, 221 SW 496, 10 ALR 515.
Section 208 stated:
"(b) Reimbursement out of estate. If the tax or any part thereof is paid by, or collected out of that part of the estate passing to or in the possession of, any person other than the executor in his capacity as such, such person shall be entitled to reimbursement out of any part of the estate still undistributed or by a just and equitable contribution by the persons whose interest in the estate of the decedent would have been reduced if the tax had been paid before the distribution of the estate or whose interest is subject to equal or prior liability for the payment of taxes, debts, or other charges against the estate, it being the purpose and intent of this subchapter that so far as is practicable and unless otherwise directed by the will of the decedent the tax shall be paid out of the estate before its distribution."
[2] Section 826(b) mentioned in the quote is the same reference as the statute in footnote 1. | 5e9eeae01d0c1ad3dda380d2855768eedd90c64b9925783da6259a026c9c148c | 1963-12-11T00:00:00Z |
a378e8f1-3d85-4a42-8b82-7efa6841c608 | State v. Robinson | 235 Or. 524, 385 P.2d 754 | null | oregon | Oregon Supreme Court | Affirmed October 17, 1963.
*525 Reginald S. Williams, Salem, argued the cause for the appellant. With him on the brief were Lawrence Osterman and Dale Pierson, Salem.
Gary D. Gortmaker, Deputy District Attorney, Salem, argued the cause for respondent. With him on the brief was Hattie Bratzel Kremen, District Attorney, Salem.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
*526 ROSSMAN, J.
This is an appeal by the defendant from a judgment of the circuit court which adjudged him guilty of the crime of driving a motor vehicle while under the influence of intoxicating liquor in violation of ORS 483.992 (2). The penalty was a fine of $300.
ORS 483.992 (2) provides:
November 26, 1961, the day defendant was arrested, he and his wife drove from their home in Molalla to Salem at about 10:30 o'clock in the evening. Defendant testified he had a headache and went to a tavern called the Malt Shop where he "knew he could buy some Anacin." He spent approximately one hour in the Malt Shop where he purchased the Anacin and had two drinks, each of which consisted in part of whiskey.
The defendant drove the car as he and his wife left the Malt Shop about midnight for home. He testified that as they were passing an establishment in Salem a car pulled into their lane and forced him to apply his brakes hurriedly. The attendant screech of brakes and tires attracted the attention of two police officers who thereupon pursued the defendant for approximately a mile. At that point they stopped him and arrested him for driving while under the influence of intoxicating liquor.
The two officers testified that the defendant drove his car in an erratic manner, that when he stepped *527 from his car he was unsteady, his speech was thick and slurred and a strong odor of alcohol issued from him. The defendant spent the night in the county jail. The two arresting officers and the jailer testified that in their opinion the defendant was intoxicated.
Appellant (defendant) offered as explanation of his slurred speech that he had dentures that did not fit properly. He attributed his unsteady gait to a support which he wore on his back to correct an injury. He earns his livelihood by driving a logging truck.
Defendant-appellant presents four assignments of error. The first three concern jury instructions given or refused, and the fourth challenges the constitutionality of a statutory suspension of his driving privilege.
1-3. The office of the instructions to the jurors is to inform them as to the law of the case so that they will know the governing rules. When a charge to the jury is examined for error the proper inquiry is how the instruction would naturally be understood by the average people who compose juries. If the instruction is correct as to the law and is not couched in phraseology which is, by chance, misleading, the court has committed no error in giving it instead of one of like nature requested by the appellant. The requested instructions are advisory, and the trial judge need not accept any of them even though it is material and is correctly worded if he gives another which is likewise correct.
Appellant's first assignment contends error was committed in refusing to give a requested instruction which defined the term "reasonable doubt." The trial judge charged the jury:
Many courts have decried attempts to define the term "reasonable doubt." They point out that the term is so commonly known and understood that it requires no embellishment; it is questionable whether a definition can add much to what the words themselves denote. Snell v. State, 179 Ga 52, 175 SE 14; People v. Malmenato, 14 Ill 2d 52, 150 NE2d 806; State v. Wilcox, 132 NC 1120, 44 SE 625; Choate v. State, 19 Okla Cr 169, 197 P 1060; State v. Aughtry, 49 SC 285, 26 SE 619; Holmes v. State, 68 Tex Cr 17, 150 SW 926; State v. Costa, 78 Vt 198, 62 A 38; McCoy v. Commonwealth of Virginia, 133 Va 731, 112 SE 704; Swopshire v. Commonwealth of Kentucky, 246 Ky 593, 55 SW2d 356; People v. Cary, 245 Ill App 100; State v. Andrews, 86 RI 341, 134 A2d 425; Miles v. U.S., 103 US 304, 26 L Ed 481; Dunbar v. U.S., 156 US 185, 39 L Ed 390, 15 S Ct 325.
4. While it is doubtful if a definition is necessary, attempts to define the term are not error for that reason. In this state the practice prevails for the trial court to instruct the jury as to the meaning of reasonable doubt. Many definitions have come before this court for review, and we have in the past honored definitions which, like the one given in this case, equate "reasonable doubt" with "establishing the truth to a moral certainty." State v. Abrams, 11 Or 169, 8 P 327; State v. Morey, 25 Or 241, 36 P 573; State v. Roberts, 15 Or 187, 13 P 896. In State v. Roberts, supra, the appellant's request for an instruction containing the phrase "establishing the truth to a moral certainty" had been refused. We affirmed the circuit court's ruling stating that although the requested instruction *529 was free from objection, the charge given by the court was, in effect, the same.
5. The instruction given by the trial judge and the one refused advance essentially the same definition of "reasonable doubt." The trial judge's instruction informed the jurors succinctly and clearly as to the degree of proof required to find defendant guilty. The first assignment of error is without merit.
Appellant's second and third assignments of error relate to the same matter and may be considered together. He challenges, in his second assignment, the refusal of the trial judge to give this requested instruction:
In his third assignment he contests the validity of this instruction given by the court:
Appellant urges in opposition to the court's instruction and in support of his own that there should be no distinction between the definition of the term "under the influence of intoxicating liquor" in civil and in criminal actions. His definition is taken largely from Glascock v. Anderson, 198 Or 499, 257 P2d 617. This case involved an action for damages for personal injuries pursuant to OCLA § 115-1001 (ORS 30.115) commonly known as the "guest passenger statute." Plaintiff alleged the driver was intoxicated and unable to properly operate the automobile. The trial judge instructed the jury:
Appellant argues it is unjust to convict a motorist of driving while under the influence of intoxicating liquor by requiring the state to prove only that the accused was under the intoxicating liquor's influence to a perceptible degree, while on the other hand, if a motorist is involved in an auto accident and injures someone, the plaintiff is required to show not only that the motorist was under the influence of intoxicating liquor but also that the liquor had made him incapable of operating his vehicle as a reasonably prudent sober person would.
*531 6. This argument is unmindful of the basic purpose of ORS 483.992. This statute is designed, through the punishment of offenders, to deter persons from driving on the public highways when they have voluntarily allowed their physical coordination and mental faculties to become hampered and dulled by intoxicating liquor. The test whether a motorist is driving under the influence of intoxicating liquor is not his fitness or unfitness to drive an automobile but, rather, whether he has imbibed to an extent that his mental and physical condition is deleteriously affected. In this condition he increases the danger of accident that already inheres in the movement of automobiles in increasing numbers on our highways.[1]
7. In light of the enlarging number of automobiles using our highways, the expanding number of arrests for driving while under the influence of intoxicating liquor, and the increasing number of fatalities in automobile accidents involving drinking drivers, the courts should not, in the absence of compelling reasons, liberalize the law in favor of those accused of this offense. To give vitality to appellant's definition would place a needless hurdle in the path of the state, impeding its work to make the highways safer.
8. The trial judge, in his charge to the jury, correctly stated the law. We are not impelled by appellant's *532 reasoning to depart from the definition of this offense propounded in State v. Noble, 119 Or 674, 250 P 833. Noble was charged with driving on a public highway under the influence of intoxicating liquor. We said in that case, speaking through Justice RAND:
It is not essential to propound an intricate definition of "under the influence of intoxicating liquor" to acquaint the jurors with its import. The second and third assignments of error lack merit.
9. We do not believe that the defendant's appeal presents an issue as to the validity of ORS 482.430, nor do we believe that the revocation of a driver's license is punishment or is intended to be punishment. This case is governed by ORS 483.992 (2) which is set forth in the second paragraph of this opinion. By reverting to it it will be observed that it makes no provision for the revocation of anyone's operator's license. So far, the defendant has not been charged with anything under ORS 482.430. That statute does not authorize the court, in a case of this kind, to revoke an operator's license. The power to do so is lodged, by ORS 482.430 (2), in the Department of Motor Vehicles.
ORS 482.430 (2), referring to the Department of Motor Vehicles (ORS 482.010 (3)), says:
It is seen from the foregoing that it is not the trial judge but the Department of Motor Vehicles that makes the suspension. See Commonwealth v. Harris, 278 Ky 218, 128 SW2d 579, and People v. O'Rourke, 124 Cal App 752, 13 P2d 989. It is not claimed that any suspension has occurred. We are satisfied that this appeal has not brought to the court a suspension or any phase of it.
The assignments of error possess no merit. The judgment of the circuit court is affirmed.
[1] Accident Facts 1960 Edition; National Safety Council, p. 50
"One out of every five drivers involved in a fatal motor-vehicle accident had been drinking."
"Nearly one out of every three fatal motor-vehicle accidents involved a drinking driver."
"About 10,000 of the 32,000 fatal motor-vehicle accidents in 1959 involved drinking drivers."
Crime in the United States, "Uniform Crime Report;" John Edgar Hoover, FBI p. 92, 93. In 1962 there were 176.6 arrests for driving while intoxicated for every 100,000 population. This is an increase of 3.4 per cent over 1961. | 5b66d8f901d830108b0e5693964459238c1bda669f3980ed9ce524b091612620 | 1963-10-17T00:00:00Z |
865c45cd-db08-4504-854b-9a479a7b81f9 | Dean v. Poole | 235 Or. 606, 386 P.2d 453 | null | oregon | Oregon Supreme Court | Affirmed November 6, 1963.
*607 Randolph Slocum, Roseburg, argued the cause for appellant. On the brief were Horn & Slocum, Roseburg.
Paul E. Geddes, Roseburg, argued the cause for respondent. On the brief were Geddes, Felker, Walton & Richmond, Roseburg.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the plaintiff from a judgment which the circuit court entered in favor of the defendant after the jury had returned its verdict likewise for the defendant. After the entry of that judgment the plaintiff moved for a judgment in his favor notwithstanding the verdict or in the alternative for a new trial. The alternative motion was based upon contentions that the trial judge erred when he (1) denied the plaintiff's motion for a directed verdict, (2) omitted to instruct the jury that a violation of a motor vehicle statute is negligence per se, and (3) declined to give to the jury five instructions requested by the plaintiff which pertained to damages.
Both the motion for a new trial and the one for the award of judgment notwithstanding the verdict were denied. The motion by the plaintiff for a directed verdict, which we have mentioned, had already been denied.
*608 The first assignment of error reads:
The plaintiff's brief submits several propositions in support of the above assignment of error; the three that we deem material are:
ORS 483.206 reads:
We will now give a review of the essential parts of the evidence. Since the case is before us upon a challenge by the plaintiff to an order of the circuit court which denied the plaintiff's motion for a directed verdict, we will, of course, give the version of the evidence which is most favorable to the defendant. Our *609 purpose will be to determine whether the evidence rendered it inevitable that the plaintiff was entitled to judgment, or whether it also offered a version under which a jury could find, as the one in this case actually did, in favor of the defendant.
The plaintiff, at the time of his injury, was riding in an automobile driven by his brother, Billy Dean, to which we will refer as the Dean car. It was proceeding north at a speed of 35 miles per hour upon a road in Douglas County known as Glenbrook Loop Road. The latter was paved to a width of 19 feet. The Dean car collided with one operated by the defendant at or near a private driveway which was to the right of the plaintiff; that is, the driveway entered the road from the east. It was a graveled road 12 feet wide near the defendant's home which stood 60 to 65 feet east of the road and adjacent to the driveway. The driveway broadened to a width of 36 feet where it neared and entered the road. One standing at the place where the driveway merged into the road could see south down Glenbrook Loop Road 465 feet. A moderate curve in the road to the west prevented a view for a greater distance. The Dean car was approaching the driveway from the south. A driver proceeding north on Glenbrook Loop Road, the direction in which the Dean car was going, could see into the private driveway for at least 20 or 30 feet. September 3, 1960, at about noon when the air was dry and there were no obstructions to visibility, the Dean car, as we said, was approaching the driveway at a speed of 35 miles per hour. About the same moment the defendant was backing his car a small car of foreign manufacture along the driveway from his home toward the road. Billy Dean did not see the defendant's car until the *610 plaintiff cried out a warning. He testified, "I couldn't have been more than 15, 20 feet" from the defendant's car when he saw it. The defendant did not see the Dean car before the impact. The facts so far mentioned are free from controversy.
The plaintiff's brief states:
That in brief form expresses the plaintiff's basis for a reversal.
We have mentioned that the driveway is 36 feet broad at the place where it merges into the road and that the driveway is gaveled. A photograph of the part of the driveway adjacent to the road indicates that the gravel is very small and compacted in a manner similar to that of the shoulders of our highways. The plaintiff's brief explains,
The plaintiff concedes that at the place where the driveway entered the road it was 36 feet wide. The graveled surface of the southeast quadrant, as the *611 language just quoted states, was 9 feet broad (east to west).
A minute or so before the impact the defendant entered his automobile which stood upon the driveway beside his home. He testified that he intended to back his car westerly upon the driveway until he neared the road and then turn his car into a southerly direction so that its front would face north. After he had accomplished that operation he intended, according to his further testimony, to drive north toward Riddle. It will be recalled from the excerpt which we took from the plaintiff's brief that the southeasterly quadrant of the driveway consists of a graveled area nine feet wide sufficient in size to accommodate an automobile. The defendant intended to back into that area and in so doing turn his car until it was approximately parallel with the pavement. The defendant, referring to the quardant described in the plaintiff's brief, testified: "There was plenty of room to back up there."
The defendant swore that as he stood beside his car near his house before proceeding to back up he could look south along Glenbrook Loop Road about 400 yards. He added that no vehicle was in sight moving north the direction which he planned to take. Upon entering his car he looked again so he swore. This time he saw a car approaching from the north but saw nothing moving north. He then proceeded to back toward the road, but stopped at his property line which he said was "fifteen or twenty feet" from the east edge of the pavement. He swore that when he reached that place he stopped and looked in both directions. According to him, no car was in sight except the one already mentioned which was moving south. The defendant stated that the place where he stopped *612 afforded him a good view south along the road for about 465 feet. After taking his view the defendant, according to his further testimony, continued to back and in so doing turned into the mailbox area, 9 feet wide, that we have mentioned. He claimed that he thereby placed his car virtually parallel with the pavement and facing north (toward Riddle). He stated that when he had completed his backing his left rear wheel may have been slightly on the pavement. His words were, "I might have had my back wheel onto the pavement, I don't know."
Having completed his backing up process and having turned his car so that it faced north, the defendant shifted into low gear and proceeded north. We now quote further from the testimony given by him:
*613 When the impact occurred the two left wheels of the defendant's car were on the pavement, according to his testimony. He thought that they were about two feet from the latter's edge.
The impact consisted of the right side of the Dean car coming into contact with the left tail light of defendant's. As we observed, the driver of the Dean car conceded that he did not see the defendant's car until an instant or so before the impact. The defendant admitted that he did not see the Dean car. We have mentioned that there was no obstruction to visibility for a distance of 465 feet for a person who stood in the driveway near the road and who looked to the south. The record affords no expressed explanation for the failure of either driver to have seen the other's car until too late.
From the above we observe that the jury could have found that the defendant had completed his backing and turning operation before the collision occurred. In fact, it could have found that he had actually stopped his car for an instant in a safe place beside the road. That place was nine feet wide. Then he proceeded forward and had moved ahead, so he swore, 36 feet before the collision occurred. Since the driveway was 36 feet wide at that point, the evidence just mentioned could have warranted a finding that the defendant had traveled the width of the driveway and had virtually left it before the impact took place.
The evidence indicates that the right side of the Dean car, back of its right door, and the left tail light of the defendant's car were the only parts of the two vehicles that showed marks of a collision. The right side of the Dean car, beginning about two inches back of the door, shows the effect of a scraping as though *614 it had scraped upon some object. The left tail light of the defendant's car was broken.
The plaintiff and his brother testified that when the latter belatedly saw the defendant's car he undertook to veer his car to the left. It may be that in a movement to the left the Dean car could have scraped the defendant's left tail light, but that is by no means the only way in which the impact can be accounted for. It is reasonable to infer that while the Dean car was proceeding north its right side scraped the left tail light of the defendant's car while the latter was also proceeding north.
1. Well established rules of law render it impossible to attribute Billy Dean's negligence, if any, to the plaintiff.
The defendant frankly conceded that he did not see the Dean car before the impact. It may be that in the defendant's backing up movement which followed the view which he said he took near the road, and his subsequent movement ahead, the Dean car came into view, but too late for the defendant to have seen it. The defendant's movement was much slower than that of the Dean car. Whether or not the explanation just suggested accounts for the defendant's failure to have seen the Dean car we do not know, but the evidence above mentioned could reasonably have induced the jury to find that the defendant's failure to have seen the Dean car was not the cause of this accident. The plaintiff claims that the defendant should have seen the Dean car while the defendant was backing out of the driveway and that he should have then yielded to the Dean car the right of way. The foregoing facts indicate that the collision occurred after the defendant had completed his backing up *615 process, had turned his car, was moving ahead and was beyond the driveway. The defendant left available for the Dean car ample space in the right lane of the paved part of the road.
2. The evidence above mentioned could support a finding that Billy Dean's failure to have seen the defendant's car which was ahead of him moving in the same direction as his car and which was moving at a low rate of speed partly off the pavement was the sole cause of this accident. There was ample space to the left of the defendant for the use of the Dean car.
3, 4. It will be remembered that the issue which we are considering was presented by the plaintiff's motion for a directed verdict. The trial judge, in ruling upon that motion, was not compelled to accept the plaintiff's version of how the collision occurred. The foregoing version was also available, and it was the duty of the court to view the evidence in the light favorable to the defendant.
We dismiss the assignments of error as lacking in merit. Neither the motions made by the plaintiff for a directed verdict nor the challenge to the judgment through a motion for judgment notwithstanding the verdict and in the alternative for a new trial possess merit. The judgment of the circuit court is affirmed. | 4e237506e83d7b1c6399c26d770acc931d272d4452c65908f1f90fa38ded1358 | 1963-11-06T00:00:00Z |
0497c40c-e9fa-45cf-afce-17bbd8e18324 | Bufton v. Hoseley | 236 Or. 12, 386 P.2d 471 | null | oregon | Oregon Supreme Court | Reversed November 6, 1963.
H.W. Devlin, McMinnville, argued the cause for appellants. On the brief were Cummins and Devlin, McMinnville.
F.P. Stager, Salem, argued the cause and filed a brief for respondents.
*13 Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
REVERSED.
O'CONNELL, J.
Plaintiffs bring this action to recover rent alleged to be due under a written lease in which plaintiffs are named as the lessors and defendants as the lessees. The case was tried without a jury. Defendants appeal from a judgment in favor of Ina Bufton. The trial court dismissed the complaint as to Kirkwood Bufton.
Plaintiffs owned and operated a golf course. They leased the restaurant and living quarters on the premises to defendants for one year. Defendants failed to meet the monthly payments, and failed to pay for a beer license as required by the lease. After the lease had run about six months plaintiff Kirkwood Bufton attempted to get a liquor license. Defendants testified that Bufton told them that he could secure the license only if he had control of the restaurant. According to their testimony Bufton agreed that if defendants would quit the premises he would absolve them from any liability for rent due under the lease. Ina Bufton did not participate in these negotiations.
The trial court found that Kirkwood Bufton had agreed to discharge defendants from liability in consideration for the surrender of the lease. For this reason the court ordered the complaint dismissed as to Kirkwood Bufton. However, as to Ina Bufton the court concluded that since she had not participated in the agreement to absolve defendants of liability and since there was no evidence that Kirkwood Bufton was Ina Bufton's agent in that transaction, she was entitled to a judgment for the unpaid rent.
*14 Plaintiffs' complaint alleged that "at all times herein mentioned, plaintiffs have been and now are operating a golf course in Neotsu, Oregon, under the firm name or style of Devil's Lake Golf Course, and have filed their assumed business name as such in the office of the County Clerk, Lincoln County, Oregon."
1, 2. The word "firm" commonly denotes a partnership.[1] The allegation that plaintiffs were operating under a "firm name" may fairly be taken to mean that plaintiffs were operating as a partnership. There was no evidence negativing the allegation that the Devil's Lake Golf Course was operated as a firm. The negotiations and agreement relating to the surrender of the leasehold were clearly related to the operation of the golf course and were, therefore, within the scope of the partnership business.
3. As a partner, Kirkwood clearly had the power to bind the partnership to the agreement discharging defendants from liability. ORS 68.210.
The judgment for Ina Bufton is reversed.
[1] Thomas-Bonner Co. v. Hooven, Owens & Rentschler Co., 284 Fed 377, 380 (D.C. Ohio 1920); Bredhoff v. Lepman et al, 181 Ill App 247 (1913); McCosker v. Banks, 84 Md 292, 35 A 935 (1896); Gustafson v. Taber, 125 Mont 225, 234 P2d 471 (1951); Dodson v. Warren Hardware Co., 162 SW 952 (Tex Civ App 1913). | d9dc36447191bba2c86567ee195b115bcaddc64d0fed33945f705ec5105d2bd6 | 1963-11-06T00:00:00Z |
801e3d29-2da7-405a-a171-2f20a366de92 | Gray v. Galantha | 235 Or. 521, 385 P.2d 746 | null | oregon | Oregon Supreme Court | Affirmed October 17, 1963.
Nathan J. Heath, Portland, argued the cause for appellant. With him on the brief were Gray, Fredrickson & Heath, Portland.
Edwin J. Peterson, Portland, argued the cause for respondent. With him on the brief were Tooze, Powers, Kerr, Tooze & Morrell, Portland.
*522 Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
GOODWIN, J.
Plaintiff, a guest passenger in an automobile, appeals from a judgment n.o.v. in favor of the defendant driver.
The sole assignment of error presents the question whether there was sufficient evidence of gross negligence, as that term has been defined in connection with ORS 30.110 (now ORS 30.115), to carry the case to the jury.
Plaintiff and defendant were fellow students, visiting together while home from college during the Christmas holidays. While driving with a third such companion, they were involved in an intersection collision with an automobile driven by one Louis Gay, who is no longer in the case.
Viewing the evidence in the light most favorable to the plaintiff, the jury could have found these to be the facts: The collision occurred after the vehicle in which the plaintiff was riding stopped, or at least slowed nearly to a stop, in response to a stop sign and then proceeded slowly into the intersection. The plaintiff noticed the other auto approaching from her right, and called out some kind of warning to the defendant. The defendant, who had not previously seen the approaching vehicle, accelerated her automobile rapidly, perhaps in an attempt to "beat" the oncoming automobile through the intersection. If such an attempt was made, it was not successful.
There is no evidence that any act of negligent driving preceded the meeting at the intersection. The evidence *523 of negligence at the intersection tended to prove that the defendant maintained a defective lookout. There was also evidence that the defendant followed an erroneous course of action upon the discovery of peril, if she ever discovered it. The peril was in turn the product of the defendant's negligence in failing to maintain a proper lookout or in failing to yield the right of way to the other vehicle.
Under the test of gross negligence laid down in Williamson v. McKenna, 223 Or 366, 354 P2d 56 (1960), and in Secanti v. Jones et al, 223 Or 598, 349 P2d 274, 355 P2d 601 (1960), it was necessary for the plaintiff to prove that the defendant was guilty of reckless conduct. The record will not support an inference that the defendant was guilty of reckless conduct. The conduct proven did not exhibit a reckless disregard for the safety of others. The evidence shows, rather, that the defendant was guilty only of momentary inadvertence. Such negligence frequently results in collisions at intersections, but the fact that harm might result from momentary inadvertence does not mean that such negligence reaches the degree of recklessness which this court has held necessary to satisfy the provisions of ORS 30.110.
Affirmed. | dc2bcd1b75564463be7e20cc42d545d5de18f223fbf26e52798bcaa22cc34e28 | 1963-10-17T00:00:00Z |
c4821eff-65f9-44db-a442-ce37175ac39d | Stirewalt v. Chilcott | 236 Or. 128, 387 P.2d 351 | null | oregon | Oregon Supreme Court | Affirmed December 11, 1963.
J.R. Campbell, John Day, argued the cause for appellants. On the briefs were Yokom & Campbell, John Day.
*129 Herbert H. Anderson, Portland, argued the cause for respondents. With him on the brief were Koerner, Young, McCulloch & Dezendorf and James H. Clarke, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
AFFIRMED.
DENECKE, J.
This is a suit to impress a constructive trust upon 1182 acres of grazing land upon the ground that the land was transferred to the defendants by mistake.
The entire transaction was an involved one. A simplified version of the facts is believed sufficient. The land is on top of the rim of the canyon of the John Day River. It is sometimes referred to as the Black Snag Springs Land and will be referred to as Black Snag. The land is the property of the United States but was leased to the Hurlburts. The Hurlburts operated the W-4 Ranch, consisting of deeded and leased land, including the 1182 acres. The plaintiffs operate a ranch just west of the W-4. In the spring of 1961 the Hurlburts agreed, for consideration, to assign the lease on the Black Snag land to plaintiffs. Documents to accomplish this were executed and taken to the appropriate government office. The documents were not sufficient to accomplish the assignment and it was never effective. The evidence is conflicting whether the Hurlburts were informed by the government that the assignment had not been consummated. Plaintiff did not know until December, 1961, that the assignment had not been completed.
In the spring of 1961 the Hurlburts started negotiating with the defendants to sell them the W-4 Ranch. *130 The sale was made in November, 1961. By the contract of sale the Hurlburts assigned all their leased land, not excluding the Black Snag Springs area. Defendants applied to the government for a new lease for all these lands, including the 1182 acres. A new lease was entered into in December, 1961. Thereafter, plaintiffs requested the government to enter into a new lease with them for the Black Snag area. It refused, as it had already leased such lands to the defendants.
The plaintiffs alleged that the defendants knew the Hurlburts did not intend to transfer to them the Black Snag land and that the Hurlburts only did so because of a mistake. The trial court so found and made a decree imposing a trust upon the land.
1, 2. Before passing upon the principal question, it is first necessary to decide an ancillary issue raised by defendants. They moved to dismiss the complaint because of a lack of necessary parties. These necessary parties, defendants contend, are two mortgagees of the Hurlburts who have a prior mortgage lien upon the Hurlburts' leasehold interest in the 1182 acres. Defendants claim the mortgagees are necessary parties because "a complete determination of the controversy can not be had without the presence of other parties * * *." ORS 13.110. We deem this similar to a mortgage foreclosure suit in which the principle is well accepted that, if one having an interest in the property, by mortgage or otherwise, is not joined as a party, such interest is unaffected by the decree. Such other interest holders are regarded as proper, but not necessary, parties. Masters v. Chambers, 241 Ala 623, 4 S2d 261 (1941) (a suit to impress a trust); Osborne, Mortgages, 936, § 322. The fact that the mortgage debt may be accelerated if plaintiffs prevail does not make the mortgagees necessary parties. The mortgagees were *131 not necessary parties, and the trial court was correct in refusing to dismiss the suit.
The Hurlburts' grazing lease with the government is not in evidence, but apparently the Black Snag area was not separately described in such lease. The inference is that the lease listed approximately 50 sections or portions of sections describing all the leased land. To identify the Black Snag area in such a description one would have to know the sections or portions of sections constituting the Black Snag land. There is no evidence that the Chilcotts, or the attorney drafting the documents of sale, knew the legal description of the Black Snag area or of any of the leased lands.
Mr. Chilcott testified that Mr. Hurlburt advised him that he had assigned the lease on part of the government land to Stirewalt. He stated that Hurlburt spoke as if this were an accomplished fact, completed some time ago. Chilcott also testified that Hurlburt had generally indicated by a wave of the hand the area he had previously assigned to Stirewalt. The Hurlburts stated they had also identified the area for Chilcott on a map. This Chilcott denied.
The attorney drafting the documents of sale originally represented the Hurlburts. Later, with their consent, he also represented the Chilcotts in the sale. He had been informed that previously the Hurlburts had assigned some of their leased land to the Stirewalts. He denied Hurlburts' testimony that they had instructed him to exclude the land previously assigned to Stirewalt, except as this may have been what was intended by a reference in the contract to fencing. Based upon information given the attorney by Hurlburt, the contract of sale recites:
The attorney testified he did not intend to exclude from the contract of sale any land which had been operated as part of the W-4 Ranch, whether it be deeded or leased land. The agreement of sale provided:
The Black Snag area was part of the land leased under such described lease. Excluding the Black Snag area, the buyers received more than 11,000 acres of leased land.
To transfer the title to the land they held in fee the Hurlburts delivered a deed to the buyers. To transfer land leased from the government it is necessary for the lessee to execute an assignment of the lease to the transferee. The transferee then submits this assignment, together with an application to lease such land, to the government. If the government approves, it makes a new lease with the transferee. In this case the attorney discovered sometime after the contract had been entered into that the lease under which the Hurlburts had been operating was to one Dixon, a former mortgage creditor of the Hurlburts. Therefore, *133 the assignment was prepared for Dixon's signature and he signed it. The assignment described the land as "All properties covered by previous lease."
On the printed government form, "Application to Lease," executed by the Chilcotts, in the blank in which the legal description of the land to be leased is to be inserted, there only appears: "See Exhibit `A.'" The inference from the attorney's testimony is that Exhibit "A," which contains a description of all the leased land, including the Black Snag land, was prepared by the government and attached after the application was received.
The government approved the application and entered into a new lease with the Chilcotts covering the same land which had been in the former lease, including the Black Snag land.
Stirewalt testified he thought he had secured transfer of the Black Snag land when he and Hurlburt executed the transfer documents and they were sent to the appropriate government office. He learned the contrary when he received a letter from the government enclosing additional forms and stating that, when they were executed and returned, the government could complete the assignment. This letter was sent just a few days before Chilcott's application was received. The lease to the Chilcotts was made prior to Stirewalt's returning the properly executed forms to the government. Upon their receipt the government notified the Stirewalts that it could not enter into a lease with him as it had already leased the land to the Chilcotts. Chilcott refused to transfer the Black Snag lease to Stirewalt; therefore, this suit was brought to accomplish that result.
The fundamental error of the defendants is their legal classification of this case. They have placed it in *134 the contract category of unilateral mistake. In such cases the knowledge of the other party and the diligence of the mistaken party are relevant. G.E. Supply Corp. v. Republic Cons. Corp., 201 Or 690, 272 P2d 201 (1954), is an example of this type of problem. In that case the seller made a mistake in computing its offer and, therefore, contracted to sell at a lower price than it would have if there had been no mistake made. This court refused to rescind the contract because the buyer did not know and could not reasonably have known of the seller's unilateral mistake. In that case the buyer's bargain was the price stated in the contract. He intended to buy at the contract price.
3. This case is not one of unilateral mistake. It is an instance of unjust enrichment at the expense of another. More specifically, it can be categorized as unjust enrichment occurring by means of a mistake in description of the thing sold, whereby a greater amount of land was transferred than was intended by either party.
In the introductory note to the chapter on mistake in the Restatement of Restitution, the statement is made:
The defendants have stated that the principal issue here is: Did the defendants know that the Hurlburts made a mistake by transferring the Black Snag area to the defendants? Rather, the issue is: Did the defendants intend the Hurlburts to transfer to them the Black Snag area? The evidence is overwhelming that they did not.
*135 As Mr. Chilcott, Sr., testified, after stating that Hurlburt had generally indicated where the land assigned to Stirewalt lay:
It is immaterial whether or not the transfer was an "accomplished fact" or had not been effected. The important fact is that Hurlburt did not intend to convey the Black Snag area, and Chilcott did not intend to have it conveyed.
The mistake occurred in the legal description of the lands transferred as set forth in the contract of sale. The description encompassed more land than either party intended. It transferred all of the Hurlburts' interest in their lease with the government, whereas it should have excepted the Black Snag Springs area. Hurlburt was unaware that the contract transferred the Springs area, and there is no evidence whatsoever that Chilcott was aware that the land assigned to Stirewalt was included. The inference is inescapable that if the contract had specifically excepted the Springs area from the description of the leased lands transferred, the buyers would have had no objection.
If the Hurlburts, prior to the contract of sale with the Chilcotts, had effectively assigned the Springs area lease to the Stirewalts with government approval, the same mistake was still embodied in the contract of sale; the description in the contract of sale transferred more than the parties intended.
When viewed in this light, the case is similar to O'Brien v. Michels, 222 Or 399, 352 P2d 735 (1960), *136 and Heltzel v. Baird, 90 Or 156, 175 P 851 (1918). In the former decision this court stated:
There, the suit was between the parties to the conveyance; therefore, reformation was the appropriate equitable remedy. Here, the parties were not the parties to the agreement; so the imposition of a constructive trust is the appropriate remedy. Scott v. Freedom Development Corporation, 219 NYS2d 494 (1961), involved a mistake in the legal description in the conveyance and the court impressed a trust upon the property mistakenly conveyed.
The decree is affirmed. | fa494102f656b84457ca9c4064eae58f4138368a8bb355ddffd4e9831e81f621 | 1963-12-11T00:00:00Z |
29d5baf5-0fb6-4b82-8637-1ee20f4a04f5 | Ainsworth v. Dunham | 235 Or. 225, 384 P.2d 214 | null | oregon | Oregon Supreme Court | Reversed and remanded July 31, 1963.
*226 Carl R. Neil, Portland, argued the cause for appellant. With him on the briefs were Krause, Lindsay & Nahstoll, Portland.
Hugh B. Collins, Medford, argued the cause for respondent. On the brief were Collins, Redden & Mullen, Medford.
Before PERRY, Presiding Justice, and O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
DENECKE, J.
The only question presented is whether or not a judgment should be set aside for the reason that the defendant and his attorney had no notice of the trial and were not present at the trial.
ORS 18.160 provides:
This is an action for attorneys fees in Jackson county. A Coos county firm, from Coos Bay, represented the defendant. Later, the present attorneys for the defendant, here referred to as the Krause firm, located in Multnomah county, became associated with the Coos Bay firm in the defense. Shortly thereafter the Coos Bay firm withdrew as attorneys for defendant, leaving the Krause firm as the sole attorneys for *227 defendant. The withdrawal was approved by an order of the trial court. The argument is made that either the Coos Bay firm or an individual attorney of such firm remained or again became one of the attorneys for the defendant. The record reveals that such argument has no reasonable basis.
The case was initially set for trial July 10, 1962. On May 28, 1962, the trial court made the following order:
On the first Monday in June the case was set for trial on September 5, 1962. This trial setting appears on the mimeographed trial calendar prepared shortly thereafter by the clerk. For reasons unknown this calendar carries the Coos Bay firm as attorneys for defendant. (The previous calendar carrying the July 10 trial date carried only the Krause firm as attorneys for defendant.) A copy of this calendar was mailed to the Coos Bay firm and received by them. The Krause firm received no notification from anyone.
On the first Monday of July the case was again set for September 5, 1962, and the calendar again carried the Coos Bay firm as attorneys for defendant. Such firm received a copy of the calendar but the Krause firm received no notice from any source.
The defendant and his counsel did not appear at the trial on September 5, 1962. The action was tried before the court without a jury. The court examined plaintiff and thereafter entered findings and a judgment in the amount prayed for in the complaint. A copy of this judgment was sent to the Krause firm. *228 Thereafter, on September 11, 1962, defendant filed a motion to set aside the judgment because it was made "because of the inadvertence and excusable neglect of defendant's attorneys." The trial court refused to set aside the judgment, relying largely upon local rules of practice.
The published rules of the Circuit Court for Jackson County provide:
In a written opinion the trial court ruled that such rules require all counsel, residing in or out of the county, to be present on the first Monday of the month at such trial setting or, if they are not, they have the duty to inquire what action was taken at such trial settings.
The trial court further stated that the portion of the court rules above italicized is "a matter of courtesy only and not a provision which released defendant from his obligation to keep advised of the status of the case and its setting for trial."
1. The interpretation of its local rules and the conduct of the proceedings before it are ordinarily matters that should be left to the trial court. Here, however, we feel compelled to interfere and reverse the action of the trial court.
2. Neither the Krause firm nor the defendant had any notice of the trial. The Coos county firm were no longer attorneys for defendant when they received the notices of the September trial date. Their failure to transmit this information cannot be attributed to defendant. We hold that the Krause firm was reasonable in believing that under the Jackson county rules and practice it was not necessary for them to be present on the first Monday of the month or to make inquiry of any action taken and that they would be notified by mail of any trial setting. Therefore, they were not guilty of any inexcusable neglect and the judgment should be set aside.
This court spoke more positively in Bratt v. State Industrial Acc. Com., 114 Or 644, 236 P 478. There, *230 the trial court's refusal to set aside a judgment based upon a trial of which the defendant was not notified was reversed. That trial court also had a rule which provided that if the attorneys were not present at the time the trial date was fixed, notice would be sent to the attorneys. The court quoted with approval from Hughes v. Jackson, 12 Md 450 at 463 (1858), as follows:
3. The trial court here also stated its belief that the affirmative defenses of defendant did not constitute a defense and the defendant had no meritorious defense. The answer denied most of the material allegations of the complaint; therefore, there were issues of fact. Regardless of the court's views of the merits of the case or how vexatious a party's conduct has been, he is entitled to notice of trial and thus the opportunity to present his side of the controversy.[1]
In the course of oral argument on this appeal the attorney for the plaintiff was asked if he had attempted to telephone the Krause firm when no representative appeared at the time set for trial. He replied that he had not, but that his normal practice was to do so under such circumstances. He further stated that he did not do so here because the defendant, by the Krause firm, was suing his client for legal malpractice and, therefore, he felt no obligation to extend any courtesies. He further answered that his *231 client was not disposed to extend any courtesies to the opposing attorneys and he questioned whether it was ethical to attempt to contact opposing counsel in view of the accepted ethical admonition to put one's client's cause foremost.
4. Counsel's candid answers are appreciated. We disagree, however, with his views on an attorney's duties and ethics. We approve of the following sections of the Code of Trial Conduct of the American College of Trial Lawyers pertaining to this subject:
Reversed and remanded.
[1] Cf. Korlann v. Belton, 236 Or 23, 384 P2d 210, 386 P2d 664, decided this date. | 0730a4f7f5bdb14b55474aecd3cd92ad23076858c06c14a8c8d216c6299a90d8 | 1963-07-31T00:00:00Z |
448060c4-cbe0-4041-9e4b-e8a963230b40 | Flande v. Brazel | 236 Or. 156, 386 P.2d 920 | null | oregon | Oregon Supreme Court | Affirmed November 20, 1963.
Petition for rehearing denied December 17, 1963.
*157 C.S. Emmons, Albany, argued the cause for appellant. On the brief were Willis, Kyle & Emmons, Albany.
Harrison M. Weatherford, Albany, argued the cause for respondent. On the brief were Weatherford, Thompson & Horton, Albany.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
DENECKE, J.
This is an automobile accident case. The car which the defendant was driving sideswiped the plaintiff who was standing on the pavement next to his parked pickup. The lights of the plaintiff's 1937 pickup were either very dim or completely out. The accident occurred at night in the country. The jury returned a plaintiff's verdict and judgment was entered thereon. The defendant has appealed.
*158 The road where the accident occurred runs generally north and south. Both parties were headed north. Plaintiff testified his lights started to go dim and he stopped his car and got out. He stated he stopped about 35 feet north of a slight curve and about 300 yards north of a dip in the pavement. Defendant fixes the location of the accident at about the same place. Plaintiff said the front of his car was off the pavement and the rear was about one and one-half feet on the pavement. Plaintiff testified at the time he got out of his car, his front lights were very dim; he did not know the condition of his tail light. He said that he looked to the rear and did not see the lights of any cars and that a short time later he was hit. He did see a car approaching from the opposite direction.
The defendant testified he was going 50 miles per hour. He stated he rounded a curve and his lights picked up plaintiff standing on the road next to the car. It was then too late to stop; so he swung to the left, collided with the on-coming car, and apparently hit the plaintiff with the side of his car. The defendant saw no lights on plaintiff's car, either before the accident or after it.
The defendant called Carl Patterson as a witness. Patterson testified he drove north on this same road at approximately the same time as the parties did. He testified he saw an old model pickup with very dim front lights parked on the highway, but he was unable to say on what portion of the pavement that the pickup was parked. He testified he saw the pickup at one of two places, both of which he marked on the photo map, but he said it was at the bottom of a dip. He did not see any tail light. Patterson testified:
The court granted plaintiff's motion to strike all of Patterson's testimony. One of the grounds for the motion and the one principally argued at oral argument was insufficient identification of the pickup by Patterson.
1. Assuming that Patterson sufficiently identified the pickup so as to render his testimony admissible, we hold that the striking of his testimony was not prejudicial. Defendant contended that Patterson's testimony was important because he located the parked pickup at the bottom of the dip which would account for the defendant not having seen it any sooner. However, both the defendant and plaintiff located plaintiff's pickup 300 yards beyond the dip, and defendant stated he did not see it sooner because it was around a curve. One of the two locations where Patterson marked the location of the pickup was about 300 yards from the dip and at the place where the parties agree the accident occurred. Defendant urges that Patterson corroborated defendant's testimony by his statement that he saw the pickup when it was silhouetted by the on-coming car. But defendant did not testify that he also saw the pickup silhouetted by the lights of the on-coming car.
Defendant further contends his testimony is corroborated by Patterson's statement that he did not observe any tail light on the pickup. Plaintiff did not testify his tail light was burning just prior to the accident. Plaintiff and Patterson agree that plaintiff's head lights were very dim, and the only inference is *160 that plaintiff's tail light was so dim as to be of no aid to defendant in seeing plaintiff's pickup.
2-4. Plaintiff testified no cars going north passed him while he was parked. Patterson's statement that he passed plaintiff going north contradicts this testimony, and defendant argued that this made the testimony admissible for impeachment purposes. Whether or not other cars passed plaintiff before the accident is a collateral matter. As a general rule one cannot impeach on a collateral matter. Coles v. Harsch, 129 Or 11, 18, 276 P 248, 9 Am St Rep 447 (1929). Inasmuch as one of the principal reasons for this rule is to expedite the trial of cases, the matter should be one for the trial court's discretion. See 3 Wigmore, Evidence (3d ed) 653, 657, §§ 1000-1006, particularly § 1003.
5. Defendant assigns as error the failure of the court to grant his motion for a directed verdict on the grounds that he was not negligent and that the plaintiff was guilty of contributory negligence as a matter of law. The charges of negligence were speed and improper lookout. The statement of facts heretofore made is sufficient to show these were questions for the jury. Martin v. Oregon Stages, Inc., 129 Or 435, 277 P 291 (1929); Morris v. Fitzwater, 187 Or 191, 210 P2d 104 (1949).
6. The principal charge of contributory negligence was a violation of ORS 483.320, prohibiting parking on the highway if it is practicable to park off the highway. The statute does not apply if the vehicle is disabled, and it is impossible to move it off the highway. In another case in which the vehicle's lights went off, we held that a car was disabled if it could not be safely moved. Morris v. Fitzwater, supra (187 Or *161 at 196). (We will assume that, if the statute were violated, it could be found to be a cause in fact of the accident.) The evidence was that between the place where plaintiff noticed his lights growing dim and the place he stopped there were several places where plaintiff could have parked completely off the road.
The plaintiff described his actions as follows:
7. Based on the markings on the photo map, the plaintiff traveled about 100 yards from the time his lights first started to dim until he stopped. He testified that after he stopped he could see 20 or 25 feet ahead of his car. The jury could find the plaintiff did not violate the statute by driving 100 yards and passing by places where he could have parked completely off the pavement and in not continuing down the road or backing up groping in the dim light for such a parking place. See Shelton v. Lowell, 196 Or 430, 249 P2d 958 (1952), in which this court held the question of whether or not the defendant should have moved his stalled truck off the highway was one for the jury.
8. Defendant also charged plaintiff with being contributorily negligent in failing to keep a proper lookout. Plaintiff testified he got out, looked ahead, and saw a vehicle some distance away. Then he looked back and saw no lights or vehicles. It is surprising that the plaintiff did not see defendant's lights; however, because of the curve and lower elevation of the road south of plaintiff's location, we cannot say the *162 plaintiff was negligent as a matter of law in failing to see the lights. It is also surprising that plaintiff did not see the defendant's lights just before the accident. However, defendant testified his lights did not shine on plaintiff until defendant was so close he could not stop. The question of whether plaintiff maintained a lookout is one of fact. See Holman v. Uglow, 137 Or 358, 3 P2d 120 (1931).
Borgert v. Spurling, 191 Or 344, 230 P2d 183 (1951), held that one standing in back of car parked on the highway was contributorily negligent as a matter of law. There, however, the plaintiff was out in the road with his back turned in one direction and the back of the car facing north blocking his vision in the other direction. He testified he made no attempt to keep any lookout. As the court pointed out there was a highly dangerous situation because there was a second vehicle, parked on the wrong side of the road heading the opposite direction, south, with its lights on. The defendant traveling north assumed, as was normal, that the headlights were those of a car on its own side of the road and it diverted attention from the car behind which plaintiff was standing. For the reasons stated, that decision is not applicable to this case.
The last assignment of error is directed to the trial court's instruction on lookout. The court's instruction was limited to the lookout required of a driver and of the defendant. The defendant excepted because of, "Your Honor's failure to apply the lookout rule to both parties because we have charged plaintiff with failure to keep a lookout." The instruction given was in part Instruction No. 70.04 of the Oregon Jury Instructions for Civil Cases and in toto, according to defendant's exception, plaintiff's Requested Instruction *163 2. Defendant, on oral argument, could not recall whether he had requested an instruction pertaining to the lookout required of the plaintiff. The requested instructions are not part of the record; so we cannot determine if defendant requested such an instruction.
Severy v. Myrmo, 186 Or 611, 207 P2d 151 (1949), concerned the same legal situation. In that case the parties were approaching an intersection from opposite directions. Plaintiff attempted to turn left at the intersection and a collision occurred. The court read to the jury that section of the right-of-way statute applying to vehicles approaching an intersection from right angles. It did not read the statute designating which vehicle had the right of way when one vehicle was turning left at the intersection. Both parties had charged the other with negligence in failing to yield the right of way.
After observing that the portion of the right-of-way statute which the trial court read had no application to the facts, the court said:
The defendant in Severy v. Myrmo, supra (186 Or 611), took an exception to the court's failure to give *164 the appropriate right-of-way instruction. The court held this ineffective, stating:
For the reasons stated in Severy v. Myrmo, supra, the last assignment of error is found to be without merit.
Judgment affirmed. | ac4a0cde679c4e27fe31911a2cbd691088e3c8dda3df25d891f96b0370814c9d | 1963-11-20T00:00:00Z |
b15ffc98-272f-43f4-974e-1f39035d0e24 | Evergreen Tim. Co. v. Clackamas County | 235 Or. 552, 385 P.2d 1009 | null | oregon | Oregon Supreme Court | Affirmed October 23, 1963.
*553 John O. Sheldahl, Oregon City, argued the cause for appellant. With him on the briefs was William E. Schumaker, District Attorney, Oregon City.
James O. Goodwin and Harry A. Harris, Oregon City, argued the cause for respondent. On the brief were Jack, Goodwin & Anicker, Oregon City.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
O'CONNELL, J.
This is a suit in which plaintiff seeks to quiet its title derived from Margaret Henderson and her husband against the defendant county. Defendant appeals from a decree quieting plaintiff's title.
The defendant county commenced tax foreclosure proceedings on December 14, 1939 to satisfy unpaid taxes on the property. The foreclosure list as published in the Molalla Pioneer contained the following erroneous description of the Henderson property:
"N 1/2 NE 1/4 E 1/2 NW 3/4, Sec. 23, Tp. 2 S., R. 7 E., W.M."
The land intended to be described was the North 1/2 of the Northeast 1/4, and the East 1/2 of the Northwest 1/4, Sec. 23, Tp. 2 S., R. 7 E., W.M.
Defendant county claims title through a sheriff's deed executed to the county following the decree of foreclosure entered on June 3, 1940. The sheriff's deed correctly described the land. The defendant did not take actual possession of the land. Plaintiff entered *554 upon the land sometime in 1961; placed a cabin on it, posted "No Trespassing" signs, built fire trails and was in possession at the time of trial.
The defendant first contends that being a subdivision of the state it is entitled to assert the defense of sovereign immunity.
We recently held in Kern County Land Company v. Lake County, 232 Or 405, 375 P2d 817 (1962) (a quiet title action), that a county is not subject to suit in the absence of a general statute authorizing suit in the circumstances in question. The legislature has seen fit, however, to permit suits against a county where, as here, a taxpayer attacks the validity of a sale of property on foreclosure for delinquent taxes. This authorization is implicit in the enactment of ORS 312.230 (1), which reads as follows:[1]
The defendant argues, however, that even though a suit may be brought against the county under the *555 circumstances of this case, the suit is barred by the operation of the general statute of limitations prescribed in ORS 12.050[2], as it is modified by ORS 312.218. ORS 312.218 reads as follows:
ORS 312.218 purports to transmute the non-possessory interest of a county in tax foreclosed lands into a possessory interest, thus making the county an adverse possessor under ORS 12.050.
Certainly the legislature cannot make actual possession exist when it in fact does not exist. The statute is, therefore, nothing more than a legislative declaration that the county may cut off the interest of a taxpayer in tax foreclosed land simply by the expiration of the period prescribed in the statute. In other words, ORS 312.218 is merely a statute of limitations which purports to bar those who claim an interest in tax foreclosed lands.
1. Within certain limits the legislature has the power to fix the time within which actions can be brought, but it cannot, without more, command the owner of property to bring an action to defend his title or lose it. Thus a statute requiring a taxpayer whose land has been foreclosed for non-payment of taxes to bring an action to determine the validity of the tax sale within a certain period after the sale does not operate to divest the taxpayer's title if the foreclosure decree is *557 void.[3] On the other hand, if the foreclosure decree is simply irregular, a statute limiting the time within which the tax foreclosure proceeding can be attacked is effective to quiet a title derived through the tax sale.[4]
We must decide, therefore, whether the foreclosure decree relied upon by the defendant county was void and, therefore, subject to collateral attack.
The foreclosure proceedings, instituted in 1939, were governed by OC § 69-816. That statute declares that a proceeding to foreclose for delinquent taxes is "a proceeding in rem against the property itself," in which "summons may be served or notice given exclusively by publication in one general notice describing the property as the same is described on the tax rolls."
2. Although the statute does not expressly require the name of the taxpayer to be included in the published notice, the statute is so construed.[5] The notice is fatally defective, therefore, if it fails to include both the name of the taxpayer and a description of the land sought to be foreclosed.[6] A court entering the decree of foreclosure following such defective notice does not have jurisdiction and the decree is void and subject to *558 collateral attack.[7] An adequate description of the property is necessary to vest jurisdiction in the court for still another reason. As we have already noted, tax foreclosure proceedings are by statutory mandate proceedings in rem. In such a proceeding the court does not obtain jurisdiction if the property which is the purported res is not adequately described.[8]
In the case at bar the land description contained in the published notice was defective. The question is whether it was so defective as to render it inadequate for the purpose of satisfying the notice required by OC § 69-816.
The tax foreclosure statutes do not establish any standard by which to test the adequacy of a description in the published notice. The assessment statutes do. OC § 69-231 provides that an "assessment shall not be held invalid on account of any error or irregularity in the description; provided such description would be sufficient in a deed of conveyance from the owner; or on account of any description upon which, in a contract to convey, a court of equity would decree a conveyance to be made."
3. Although the need for clarity in the notification may be greater where property is assessed than where it is subjected to foreclosure proceedings,[9] we believe *559 that the description should at least meet the standard set up in OC § 69-231.[10]
Does the description in the case at bar meet the standard? We think not. If we assume that the description could be read as "The North 1/2 of the Northeast 1/4 and the E 1/2 of the NW 3/4, Sec. 23, Tp. 2 S., R. 7 E., W.M.," that part of the description after the word "and" would not identify a specific parcel of land because the call for the NW 3/4 is meaningless.[11] Such a description would not be effective to convey title by deed.[12] Even if we were to assume that the owner would translate the call for the NW 3/4 as a call for the NW 1/4, the description would still be ambiguous unless it could be regarded as containing the word "and" after the first two calls. Without the word "and" the corrected description could be used to identify a parcel of land although not through the familiar method of applying calls in the system of rectangular surveys.[13]
*560 We observe, then that, the description does not serve to identify the taxpayer's property without a material reconstruction of the calls. Although a description may contain ellipses[14] and in other respects may be imperfect,[15] there is a limit to the court's power to renovate a defective description.[16] Even if we were to test the description solely on the basis of whether it would serve to notify an owner that his land was included in the foreclosure list, we think that the description is inadequate. Notice by publication is, at best, a poor method of warning those whose interests may be adversely affected by litigation.[17] When it is used the warning should not be muffled by ambiguity.
4. We hold that the description was fatally defective. The requirement of an adequate description in the published notice not having been met, the court was without jurisdiction to enter the decree of foreclosure.
The decree of the lower court is affirmed.
[1] Thus in Champ v. Stewart, 181 Or 300, 181 P2d 780 (1947) this court held that a virtually identical statute applied only to persons claiming ownership against the county or against persons holding title from the county. The statute so limited would be meaningless if action against the county were not permitted it would be to say that there is a time limitation on an action that cannot be brought.
See also ORS 312.218 (2) set out in the text below, which authorizes an action of ejectment against the county by a taxpayer whose land is foreclosed for taxes.
[2] ORS 12.050 provides:
"An action for the recovery of real property, or for the recovery of the possession thereof, shall be commenced within 10 years. No action shall be maintained for such recovery unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seised or possessed of the premises in question within 10 years before the commencement of the action."
[3] Elliott v. Clement, 175 Or 44, 149 P2d 985, 151 P2d 739 (1944). See also, Hughes v. Aetna Casualty & Surety Co., 76 Or Adv Sh 847, 383 P2d 55 (1963).
[4] Lane County v. Bristow, 179 Or 653, 173 P2d 954 (1946); Frederick v. Douglas County, 176 Or 54, 155 P2d 925 (1945); National Surety Corp. v. Smith, 168 Or 265, 114 P2d 118, 123 P2d 203 (1942).
[5] Murphy v. Clackamas County and Jones Lumber Co., 200 Or 423, 264 P2d 1040, 266 P2d 1065 (1954) (different statute). Earlier cases indicating taxpayer's name must be included, Lane County v. Bristow, supra, Guthrie v. Haun, 159 Or 50, 76 P2d 292 (1938).
[6] Murphy v. Clackamas County and Jones Lumber Co., supra.
[7] Sellards et ux v. Malheur County, 202 Or 188, 272 P2d 975 (1954); Elliott v. Clement, supra.
"[F]ailure to comply with the statutory provisions that govern notice renders the foreclosure decree void." Murphy v. Clackamas County and Jones Lumber Co., 200 Or 423, 446, 264 P2d 1040, 266 P2d 1065 (1954).
[8] Champ et ux v. Stewart et ux, 186 Or 656, 208 P2d 454 (1949).
[9] In foreclosure proceedings the owner frequently knows that his taxes are delinquent and that the consequences of delinquency is foreclosure. Knapp v. Josephine County, et al, 192 Or 327, 235 P2d 564 (1951). See also, Champ et ux v. Stewart et ux, 186 Or 656, 208 P2d 454 (1949); Linn County v. Rozelle, 177 Or 245, 162 P2d 150 (1945).
[10] See Frederick v. Douglas County, 176 Or 54, 155 P2d 925 (1945) indicating that a description sufficient in a deed of conveyance from the owner will be a sufficient description for the foreclosure notice.
[11] In Sanders v. Alford Bros., 92 Fla 710, 111 So 278 (1926) the land was described as the "northeast 1/2 of the Northeast half" of a section. The court said: "There is no such description of a given section of land known to our system of describing lands." The case is cited in Fitch, Abstracts and Titles to Real Property § 178, p. 295.
[12] Although there are no Oregon cases closely paralleling the instant case, the description with which we are concerned is no more specific than that dealt with in Sellards et ux v. Malheur County, supra.
[13] Thus the description could be read to mean the North 1/2 of the Northeast 1/4 of the East 1/2 of the Northwest 1/4 (correcting the last call). However, this would not be the familiar method of describing land in the system of rectangular survey because ordinarily the description would not call for a one-fourth part of a half of a quarter section.
Descriptions in a series are not uncommon. See for example, Patton on Titles § 145, p. 383.
[14] Arbogast et al v. Pilot Rock Lbr. Co., 215 Or 579, 336 P2d 329, 72 ALR2d 712 (1959).
[15] See Note, Deeds-Description-Sufficiency, 25 Or L Rev 192 (1946).
[16] Sellards et ux v. Malheur County, supra; Hertel v. Woodward, 183 Or 99, 191 P2d 400 (1948); Frizeen v. Swanton, 148 Or 250, 34 P2d 939 (1934); Bingham v. Honeyman, 32 Or 129, 51 P 735, 52 P 755 (1898).
[17] In Walker v. Hutchison City, 352 US 112, 116, 77 S Ct 200, 1 L Ed2d 178 (1956), the court said:
"* * * It is common knowledge that mere newspaper publication rarely informs a landowner of proceedings against his property."
In Mullane v. Central Hanover Trust Co., 339 US 306, 315, 70 S Ct 652, 94 L Ed 865 (1950), the court said:
"* * * Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper * * *." | 335a530d5afbcec49dd0475ab49a5c70ed2378def53a917b1b06ab73afbcc07b | 1963-10-23T00:00:00Z |
9d9021ce-9ca3-49c9-9706-b46a34f1c7e4 | State v. Benson | 235 Or. 291, 384 P.2d 208 | null | oregon | Oregon Supreme Court | Affirmed July 31, 1963.
Petition for rehearing denied September 4, 1963.
Rodney W. Miller, Salem, argued the cause for appellant. On the brief were Evans & Miller.
A.R. McMullen, District Attorney, argued the cause and filed a brief for respondent.
Before PERRY, J., presiding, and O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
AFFIRMED.
*292 O'CONNELL, J.
Defendant was convicted of the crime of forgery. After judgment was entered defendant learned that one of the jurors, Marjorie Ketola, had been convicted in 1952 of the crime of forgery. Defendant moved for an order setting aside the judgment of conviction and for an order granting a new trial on the ground that one of the members of the jury was not a qualified juror and that, therefore, the verdict was void. The motion was denied and defendant appeals.
A person is not competent to act as a juror if he "has been convicted of any felony or a misdemeanor involving moral turpitude." ORS 10.030 (2)[1] The state concedes that the juror in question had been previously convicted of a felony, but it contends that by failing to exercise his right to challenge the juror for cause defendant waived the objection.[2] On voir dire defendant did not ask the juror if she had been previously convicted of a felony. Defendant takes the position that the disqualification of a juror on the ground of a felony conviction is not waived by the failure to challenge the juror on voir dire.
*293 State v. Powers, 10 Or 145, 45 Am Rep 138 (1882) is directly in point. In that case defendant was convicted of murder in the first degree. After verdict defendant discovered that one of the jurors had been convicted of a crime involving moral turpitude. It was held that the objection to the juror's competence was waived by the defendant's failure to challenge the juror on voir dire.
Defendant concedes that State v. Powers, supra, is dispositive of the present case but he urges us to overrule it. We see no reason for doing so.
Our attention is called to Beasley v. State, 39 Ala App 182, 188, 96 So2d 693 (1957) which describes the Powers case as "an uncritical analysis of many cases with little or no eye to distinguish between disqualifications affording challenges to principal cause * * * (i.e., where the objector carries the burden of proof to show some prejudicial bias in the challenged juror.)" The Beasley case is clearly distinguishable. In that case the jury panel was asked, in effect, if any of them had ever been convicted of a crime involving moral turpitude. One of the jurors who had been so convicted remained silent. This was tantamount to answering the question in the negative. Under such circumstances it cannot be said that defendant's conduct constitutes a waiver of his objection to the juror's incompetency to serve.
1, 2. Where the juror is questioned as to his qualifications and he answers falsely, our cases hold that such misconduct is a ground for the granting of a new trial.[3] But where the juror is not asked as to his *294 qualifications the case is quite different, for in such circumstances it is reasonable to regard the failure to inquire as a waiver of the defect in the juror's qualifications. The cases generally so hold.[4]
Both counsel have the privilege of questioning jurors as to their qualifications. If the privilege is not exercised the juror cannot be expected to volunteer information concerning his competency as a juror. Unless informed by the trial court or counsel of the statutory qualifications a juror ordinarily will not know what would disqualify him. It is counsel's obligation to make inquiry in this regard and if inquiry is not made, the ground for disqualification is waived.
3. Defendant argues that a juror who has been convicted of a felony or a misdemeanor is, from the very nature of his moral deficiency, incapable of acting impartially and that, therefore, his incompetency is not waivable. We do not accept this hypothesis. The commission of a felony or a misdemeanor involving moral turpitude does not necessarily evidence a weakness of moral character incapable of correction. Many convicts have become morally rehabilitated. And we have no reason to believe that those who have not become rehabilitated and are called to jury duty are more likely to show partiality for the state than for the defendant.
The judgment is affirmed.
[1] The full text of ORS 10.030 is as follows:
"(1) A person is not competent to act as a juror unless he or she is:
"(a) A citizen of the United States.
"(b) An inhabitant of the county in which he or she is returned, and has been an inhabitant thereof for the year next preceding the time he or she is drawn or called.
"(c) Over 21 years of age.
"(d) In the possession of his or her natural faculties and of a sound mind.
"(2) Nor is any person competent to act as a juror who has been convicted of any felony or a misdemeanor involving moral turpitude.
"(3) No person shall be summoned as a juror in any circuit court more than once in one year."
[2] ORS 17.130 (1) (a) specifies a conviction for felony as a general cause for challenge.
[3] Jones v. Imperial Garages, 174 Or 49, 145 P2d 469 (1944); Hinkel v. Oregon Chair Co., 80 Or 404, 156 P 438, 157 P 789 (1916); State v. Lauth, 46 Or 342, 80 P 660, 114 Am St Rep 873 (1905).
[4] State v. Powers, 10 Or 145, 45 Am Rep 138 (1882); Kohl v. Lehlback, 160 US 293, 300, 16 S Ct 304, 40 L Ed 432 (1895); Spivey v. United States, 109 F2d 181 (5th Cir 1940); Kelly v. United States, 297 Fed 212 (9th Cir 1924); State v. Pickett, 103 Iowa 714, 73 NW 346 (1897); Wassum v. Feeney, 121 Mass 93, 23 Am Rep 258 (1876); Commonwealth v. Walker, 283 Pa 468, 129 A 453 (1925). | 56cd1c009659181fef66b048a9b4a4f81d4d7ef40dcac81ff27b410bc93d5ec6 | 1963-07-31T00:00:00Z |
1e296860-c0b0-4b95-93bf-4a108adc81b0 | Lift Truck, Inc. v. Bourne | 235 Or. 446, 385 P.2d 735 | null | oregon | Oregon Supreme Court | Affirmed October 8, 1963.
*447 Leo Levenson, Portland, argued the cause and submitted a brief for appellants.
Edwin J. Welsh, Portland, argued the cause and submitted a brief for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
GOODWIN, J.
Defendants Bourne appeal from a decree which enjoins them from conducting business under the assumed name of "Lift Parts Service of Oregon" or "any name so similar to Lift Truck Parts & Service, Inc., as to cause confusion."
The defendant Pacific Northwest Bell Telephone Company having agreed to abide by any decree of the court, the suit was dismissed as to it, and it took no part in this appeal.
The decree of the trial court is challenged on two points. First it is argued that the plaintiff's name, "Lift Truck Parts & Service, Inc.," is simply a description of a type of business with the symbol "Inc." added to it, and that it is incapable of acquiring a secondary meaning. Next the defendants argue that, even if the plaintiff's name is capable of acquiring a secondary meaning within the principles of law applicable to such cases, there is no competent evidence in the record that would tend to prove that it had acquired such a secondary meaning in the case at bar.
*448 The facts are not substantially in dispute. The plaintiff corporation and the defendants as partners are presently competitors in the relatively specialized business of supplying parts and service for various makes and models of industrial lift trucks. The plaintiff corporation, which also sells and rents such equipment, was organized in 1956, and for three years thereafter employed the defendant Arthur Bourne in its business. In 1959 Arthur Bourne left the employ of the plaintiff and opened his own business under the name of "Art Bourne Lift Truck Service." In December 1961, Arthur Bourne and Kathleen Bourne filed a certificate pursuant to ORS 648.010 in which they adopted the assumed business name, "Lift Parts Service of Oregon."
The name "Lift Parts Service of Oregon" has appeared in some telephone directory listings immediately above the name "Lift Truck Parts and Service, Inc." There is evidence in the record from which the court found that the name assumed by the defendants was so similar to that of the plaintiff as to cause confusion in the trade, and that confusion in fact had been caused. The trial court also determined, by implication, if not expressly, that the plaintiff's corporate name was capable of acquiring a secondary meaning, and that it had acquired one within the relevant trade area. Accordingly, the court enjoined further use of the defendants' present business name, as well as the use of any name so similar to that of the plaintiff "as to cause confusion."
1. Unlike most of their other competitors, neither the plaintiff nor the defendants have elected to use manufacturers' brand names in their own business names, but rather have elected to use words that are essentially synonymous with the kind of service they *449 offer. Accordingly, in this case, it is necessary to decide preliminarily whether such generic names can ever acquire a legally protectible secondary meaning. Despite the defendants' contentions to the contrary, an arrangement of purely generic or descriptive words can acquire a secondary meaning and thereby create a protectible interest in a trade name. See, e.g., The 88¢ Stores, Inc. v. Martinez, 227 Or 147, 152, 361 P2d 809 (1961), and cases collected in Annotation, 150 ALR 1067, 1095 (1944). However, where the name in question is one primarily composed of generic or descriptive words, it is much more difficult to prove a secondary meaning than in cases where the words used in the trade name have some distinctive or identifying character of their own. Restatement, 3 Torts, § 731, comment e at 602 (1938). Cf. 3 Callman, Unfair Competition and Trade-Marks, § 77.3 at 1237 (2d ed 1950).
2. In The 88¢ Stores, Inc. v. Martinez, supra, we noted that the burden of proof of secondary meaning is upon the party claiming the exclusive right to use generic or descriptive words as a trade name.
3. To acquire a secondary meaning, a business name must acquire a special significance to the purchasing public. As explained in the commentary to Restatement, 3 Torts, § 716, comment b at 560 (1938):
Or, as Judge Learned Hand put it, "[w]hat do the buyers understand by the word for whose use the parties are contending * * *?" Bayer Co. v. United Drug Co., 272 F 505, 509 (SD NY 1921).
No one clear test has emerged in the case law as a certain and satisfactory method of showing secondary meaning. The courts tend to consider a number of evidentiary matters, including the degree to which confusion, if any, exists within the particular market, the length of use of the name, amount of advertising, and survey-reaction tests. See Annotation, 150 ALR supra at 1082 to 1095, and Comment, 47 Iowa L Rev 781 (1962).
4. In the case at bar, the plaintiff has based its proof of secondary meaning for the most part upon a survey poll conducted on its behalf by a private research company. Evidence concerning the poll came in virtually without objection. Recent literature in this field suggests that the trend is toward greater use of research techniques. See, e.g., A.E. Staley Manufacturing Co. v. Staley Milling Co., 253 F2d 269, 278 (7th Cir 1958); Standard Oil Company v. Standard Oil Company, 252 F2d 65, 76 ALR2d 600 (10th Cir 1958); Household Finance Corp. v. Federal F. Corp., 105 F Supp 164, 166 (D Ariz 1952); Bonynge, Trademark Surveys and Techniques and Their Use in Litigation, 48 ABAJ 329 (1962); Note, Consumer Polls as Evidence in Unfair Trade Cases, 20 Geo Wash L Rev 211 (1951); cases collected in Annotation, 76 ALR2d 619 (1961).
For the purposes of the survey, the class of interviewees *451 was properly made up of persons requiring service and parts for lift trucks. Approximately 20 per cent of the estimated potential market was interviewed. None of the questions was misleading, biased or phrased so as to "condition" the interviewees into desired responses. (Defendant objected to one of the questions on grounds that are not material here and present no issue on appeal.) While the interviewing technique and the questions used in the survey might have been improved by slight changes in wording and emphasis, the survey did establish the existence of secondary meaning.
The defendants object to the sufficiency of the evidence to prove secondary meaning because customers of the plaintiff were not called to testify concerning their views about the matters covered in the survey. This objection is adequately answered in Zeisel, The Uniqueness of Survey Evidence, 45 Cornell L Q 322, 337-339 (1960), where the author advances several "strong reasons against * * * [such] a general requirement for the acceptance of surveys." Cross-examination of selected interviewees can be misleading. Further, this proposed procedure would hamper future use of surveys by discouraging the public from participating for fear of a possible day in court. It is doubtful whether the answers of the interviewees in court would be more reliable than their original responses. 45 Cornell L Q at 336. But see Note, Public Opinion Surveys as Evidence: The Pollsters Go to Court, 66 Harv L Rev 498, 507, footnote 60 (1953). There is the further point, brought out on trial by the plaintiff, that a business is reluctant to hale its own customers into court and thereby run the risk of losing their business in the future. In the case at bar, the plaintiff did not rely exclusively upon *452 the results of its survey, but also produced relevant evidence concerning the length of time that the plaintiff had used its name, the volume of advertising that had been employed in connection with the plaintiff's name, and the relatively concentrated public with which the parties were dealing.
5. The issues before the trial court were essentially questions of fact. We have seen that a business name made up wholly of generic or descriptive words can, in some circumstances, acquire a secondary meaning. We have seen that the existence of such a secondary meaning can be proven by impartial surveys taken by persons trained in that field. The record in the case before us contains such proof. The questionnaire results tended to show that the potential customers identified the plaintiff's name with the plaintiff's corporate personality, rather than merely with the product. Squeezit Corp. v. Plastic Dispensers, 31 NJ Super 217, 224, 106 A2d 322 (App Div 1954). While this court must try this suit de novo upon the record (ORS 17.440), we agree with the trial court's finding that the plaintiff's trade name had acquired a legally protected meaning. See Keller Products v. Rubber Linings Corp., 213 F2d 382, 385, 47 ALR2d 1108 (7th Cir 1954). There was also adequate proof of the likelihood of confusion.
6. The only remaining question is whether the decree is unnecessarily broad. We do not believe that it is. The defendants have nothing to fear from the operation of the injunction so long as they refrain from arranging the generic words in their trade name in a manner so similar to that of the plaintiff as to create confusion. Whether the defendants solve their problem by reverting to a usage which the record *453 shows was formerly employed by them, or by some other arrangement of words that will avoid confusion, they have a relatively broad range of freedom within which to select a suitable name.
The decree is affirmed. | 6493a0222ec5784fc49e462da015be9d1168732b2e2b210d89e2c4a3f25c128b | 1963-10-08T00:00:00Z |
77d45c26-da6e-4429-931f-a569c666aca7 | Arrow Transportation Co. v. Hill | 236 Or. 174, 387 P.2d 559 | null | oregon | Oregon Supreme Court | Affirmed December 18, 1963.
*175 Robert R. Hollis and John G. McLaughlin, Portland, argued the cause for appellants. With them on the briefs were Ellis & Hollis, Portland.
John F. Weisser, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Attorney General, and Lloyd G. Hammel, Assistant Attorney General and Chief Counsel for Public Utilities Commissioner, Salem.
Earle V. White, Portland, argued the cause for Intervenor Respondents. With him on the brief was White & Southwell, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, *176 PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
O'CONNELL, J.
Plaintiffs brought this proceeding to set aside two orders of the Public Utilities Commissioner granting amended motor carrier permits to Portland Motor Transport, Inc. and Widing Transportation, Inc., who became intervenors in the proceeding. This is an appeal from the judgment of the Marion county circuit court sustaining the Commissioner's orders, on the ground that he had acted within the scope of his authority and upon substantial evidence.
In March, 1962 intervenors (hereafter referred to as applicants) filed applications with the Commissioner pursuant to the provisions of ORS chapter 767 for amended permits to authorize extensions of service in the transportation of petroleum products. At the time of the filing of their applications applicants held permits authorizing the transportation of petroleum products from Portland area origins to destinations throughout the state. The principal business of applicants is the transportation of refined petroleum products. About 47.5% of the refined products hauled by Portland Motor Transport, Inc., and about 57% of the refined products hauled by Widing Transportation, Inc. are taken south from the Portland area to Eugene or beyond.
The applications were precipitated by the installation of a pipeline for the movement of petroleum products from Portland to Eugene. Plaintiffs (hereafter referred to as protestants) protested the granting of the permits. All but one of the protestants has authority to originate traffic in Eugene although *177 the authority was not exercised prior to the installation of the pipeline. In the final analysis the controversy revolves around the applicants' right to originate traffic in Eugene. A consolidated hearing was held on both applications.
At the time of the hearing the pipeline had been in operation only a few days and the ultimate effect of the pipeline on applicants' and protestants' operation was uncertain. It was agreed, however, that substantial readjustments would be made in the former pattern of petroleum distribution. It is uncontroverted that as a result of the presence of the pipeline there is a surplus of tank transport equipment only a part of which can be absorbed for use along points on the pipeline. Protestants claim that as a result of this surplus they are capable of handling all traffic and that, therefore, there is no need for the applicants' services. Witnesses for both applicants indicate that there was a demand for the applicants' services and that they would make use of these services if they were made available.
The Commissioner found that there had been no showing that a grant of the requested permits would impair the ability of the protestants to serve the public and that a grant of the permits would be in the public interest. Protestants attack the trial court's judgment and the Commissioner's orders on the ground that there was no evidence to show that the public interest would be served by the granting of the permits to the applicants.
The authority of the Commissioner to issue common carrier permits is found in ORS 767.135. The pertinent part of that section provides that the Commissioner *178 shall issue a permit "if * * * [he] finds from the record and the evidence that:
Protestants take the position that the Commissioner is not empowered to issue a permit to the applicants unless there is evidence establishing a need for applicants' services in transporting petroleum products from the terminus of the pipeline at Eugene. They contend that there is no such need if carriers with previous authority to transport petroleum from Eugene are adequately equipped to supply that service. It is undisputed that protestants had previously been granted permits to haul petroleum products from the Eugene area. They assert that they are adequately equipped to perform the service and that they are entitled to all of the traffic they can economically handle. In effect, they adopt the view that applicants must meet the criteria usually required as a condition to the issuance of a certificate of public convenience and necessity.
Applicants contend that they have produced sufficient evidence to show a need for their services. They assert, however, that an applicant may meet the requirement of need for service in spite of the fact that a carrier with an existing permit has the facilities to serve adequately all of the available traffic. The criterion, they contend, is not public convenience and necessity but whether the granting of an additional permit will serve the public interest.
*179 If the Commissioner's findings and the evidence supporting them show that there was a need for applicant's services, the Commissioner's orders would clearly be unassailable in this case. The findings and evidence in this respect are difficult to appraise because both lack incisiveness, and further, because the term "need" appears to be used in different senses. Prior to the installation of the pipeline there was a "need" for the transportation of petroleum products from Portland to the Eugene area. Both the applicants and the protestants satisfied that "need." It does not follow that because there was such a need there was a need for the services of both the applicants and the protestants in the sense that one of them alone could not handle the traffic. In fact, it is likely that if any of the parties had been granted the monopoly for the Portland to Eugene haul it could have obtained sufficient equipment to handle all of the traffic.
After the pipeline was installed the customers of the applicants and of protestants continued to have the same "need" for petroleum products. Their need for transportation was diminished by the length of the pipeline from Portland to Eugene. There was a correspondingly diminished need for equipment to haul the petroleum products over the shorter distance from Eugene to the customer. With this diminution in the length of the haul, and the freeing of trucks and equipment for other use, it is quite possible that either the applicants or the protestants alone could handle all of the traffic from the Eugene source.
There was evidence that some of the petroleum distributors preferred applicants' services over those of the protestants, and there was evidence that some of the customers of the distributors preferred the services of the applicants principally because of applicants' *180 familiarity with the customers' facilities.[1] Some of the applicants' witnesses attached significance to the fact that applicants offered a better type of compartmentalized hauling whereby split loads could be transported to the same destination.[2] Protestants presented evidence showing that they also owned and used compartmentalized equipment. But apparently it was not as readily available as that of the applicants.[3]
This evidence related, however, to conditions at the time the origin of the traffic was in Portland. The *181 installation of the pipeline may have left protestants with sufficient compartmentalized equipment to supply all of the needs of shippers from the new point of origin.
It is our conclusion that applicants did not produce substantial evidence that protestants were not able and willing to furnish adequate service from the terminus of the pipeline at Eugene. Nor do the Commissioner's orders contain findings in this respect.[4]
This presents the question of whether the availability of adequate service from carriers having existing permits to serve an area necessarily precludes the granting of a permit to an applicant who desires to provide service in the same area.
To answer the question it is necessary for us to inquire into the legislative purpose underlying the statutes providing for the regulation of motor carrier traffic in this state. Our present Motor Carrier Act states the policy broadly in ORS 767.020 (1) to be that "[t]he business of operating as a motor carrier of persons or property for hire upon the highways *182 of this state is declared to be a business affected with the public interest, and that regulated competition is desirable when it is deemed to be in the public interest." The policy is made more definite in ORS 767.135 which sets forth the prerequisites for the granting of a permit, namely, evidence that "[t]he operation proposed is in the public interest" and that "[t]he granting of a permit will not result in the impairment of the ability of existing operators adequately to serve the public." This language originated in Oregon Laws 1947, ch 467. The pre-existing statutes (OCLA 115-504) declared the policy in the following language:
The concluding part of that section contained the following proviso:
And the procurement provisions (OCLA 115.511 (2) (c) stated the public interest criterion negatively, requiring a showing "[t]hat the operation proposed is not contrary to the public interest." OCLA 115-511 also contained the provision that "the granting of the permit will not result in the impairment of the ability of existing operators to adequately serve the public."
*183 OCLA §§ 115-504 and 115-511 were carefully considered in Pierce Freight Lines v. Flagg, 177 Or 1, 159 P2d 162 (1944). The Oregon statutes were contrasted with statutes requiring an applicant to obtain a certificate of public convenience and necessity. The latter statutes, it was noted, express a policy of "regulated monopoly," favoring the existing carriers by requiring a new applicant to show that the existing carriers were unable or unwilling to handle the traffic. By contrast our statutes, it was said in Pierce, expressed a policy of "regulated competition." "Our statute," it was said, "goes no further in its regard for existing carriers than to require the denial of an application if it proposes an operation which will be contrary to the public interest or one which will impair the ability of existing carriers to serve the public adequately." (177 Or at 63) The court concluded: "[W]e do not think that we would be justified in holding that the clause concerning the public interest was intended to yield to the present carriers all of the traffic, provided they can handle it efficiently." When the motor carrier statutes were amended in 1947 (Oregon Laws 1947, ch 467) the clause rejecting the use of the certificate of public convenience and necessity and the clause declaring a policy against monopolies and monopolistic practices were eliminated from the new enactment. We do not regard the elimination of these clauses as indicative of a change in the legislative policy described in the Pierce case. The stated policy remains that of "regulated competition * * * when it is deemed to be in the public interest." "Public interest" rather than "public convenience and necessity" continues to be the criterion for the granting of motor carrier permits. It is reasonable to assume that if the legislature had intended to adopt the use of the certificate of public *184 convenience and necessity it would have included in the amended statute an express provision to that effect.
1. The difference between the test of "public interest" and the test of "public convenience and necessity" is, obviously, one of degree, i.e., the extent to which governmental regulation will be used to inhibit free competition. The legislative policy in this state is to regard motor carrier competition as desirable and to subject that competition to regulation only to the extent that it is necessary to do so in serving the public interest. Stated in another way, the policy is to protect existing carriers from the competition arising out of the granting of new permits only if there is necessity for such protection. There is no necessity for such protective regulation unless the granting of a new permit will presently or prospectively impair the ability of carriers with existing permits adequately to serve the public. Established carriers are entitled to protection only insofar as they need to be shielded from the danger of an oversupply of transportation services.[5] This is to be contrasted with the protection which is given existing carriers under the test of public convenience and necessity as traditionally applied. Under the latter test the existing carrier enjoys a modified form of monopoly, having the right to serve expanding needs if it can handle them adequately.[6]
*185 The emphasis on "regulated competition" rather than "regulated monopoly" described in the Pierce case has received support elsewhere. Texas has rejected the view that competition is undesirable and has encouraged a regulated competition to insure adequate motorbus service.[7] This viewpoint receives further support in Fulda's study, Competition in the Regulated Industries: Transportation (1961). Fulda endorses a policy which would favor the freest possible competition among motor carriers subjecting them to regulation only to the extent necessary to prevent a harmful oversupply of transportation facilities.[8]
2. In applying this legislative policy the Commissioner was well within the limits of his authority in granting a permit to applicants even if the evidence can be regarded as establishing that protestants have available equipment to handle adequately all of the traffic out of the terminus of the pipeline at Eugene. The public interest is served by the continuation of the competition between applicants and protestants unless *186 the change in circumstances resulting from the installation of the pipeline makes such competition inimical to the public interest.
3. The competition would be inimical to the public interest if it were shown that the ability of the protestants adequately to serve the public would be impaired. There was no evidence in the present case that this consequence would flow from permitting applicants to continue in competition with protestants. The applicants' burden of showing that the issuance of a permit to them would be in the public interest does not require them to prove that their continuance in competition would not impair the ability of protestants to adequately serve the public. As has been pointed out by the Interstate Commerce Commission in applying the Motor Carrier Act, it is not correct to presume "that because applicants may compete with motor carriers entitled to rights" under existing permits, "the interest of the competing carriers will be adversely affected to such extent that applicants' operations will be inconsistent with the public interest * * *."[9] To the same effect is Application of Forde L. Johnson Oil Company, 84 Idaho 288, 372 P2d 135, 137 (1962). There the court held that "if a protestant desires that the Commission be informed as to the effect which the granting of the application will have upon him, it is incumbent upon the protestant to make the showing," pointing out that the capabilities of the protesting carriers are "matters which are peculiarly within their knowledge."
4. Protestants contend that the Commissioner erroneously embraced within the concept of "public *187 interest" the consideration of the consequences to applicants' financial condition were they to be denied a permit. The Commissioner found that:
The financial difficulties suffered by an applicant as a result of the denial of a permit is not, it is contended, a factor which the Commissioner is authorized to consider in passing upon a motor carrier application. We do not agree. As we have already observed, the legislative policy in this state is to discourage monopoly and maintain motor carrier competition at the highest possible level, regulated only to the extent necessary to insure against the impairment of the ability of existing carriers to serve the public adequately. The maintenance of healthy competition is a factor to be considered in determining whether the public interest will be served. Applicants and protestants have been competitors. As the Commissioner's order recites, "the competitive picture will remain practically the same" if the permits are granted. The competitive picture will, of course, change in that there will be a decrease in business resulting from the elimination of the haul from Portland to Eugene. But this consequence is visited upon both applicants and protestants, and except for this difference in circumstance both stand in relatively the same competitive posture as they did before the pipeline was installed.
*188 5. Protestants overlook the fact that under the peculiar facts of this case the Commissioner is called upon to consider not only how the granting of the permits would affect the protestants' ability to serve the public, but also how the denial of the permit would affect the applicants' ability to serve the public. If the consequence of denying permits to the applicants would be to force them out of business, the applicants' customers not affected by the installation of the pipeline would not have the applicants' service. That service, we must assume, was needed and was in the public interest or applicants would not have received their original permits. The interest of this portion of the public to have their transportation needs served was a factor which the Commissioner was entitled to consider in passing upon the application for an extension of service.
It is important to observe that the Commissioner was not presented with the usual case of an applicant attempting to move into a territory not previously served by him. Here the applicants had made their hauls to the same area they now seek to serve from another point of origin. They are not seeking to capture business previously within the domain of the protestants; they are simply attempting to preserve the business which they had already legitimately acquired. This, the protestants contend, is merely a request to "follow the traffic." It is argued by the protestants that the "follow the traffic" doctrine is now generally discredited. Until Smith & Solomon Trucking Co. Extension, Camden, New Jersey, 61 MCC 748 (1953) the Interstate Commerce Commission generally allowed a carrier to retain its permit when its shipper moved the source of traffic. In the Smith & Solomon case the Commission carefully examined the *189 so-called doctrine and, generally speaking, repudiated it. Subsequent cases decided by the Commission reveal, however, that the movement of a source of traffic may be a relevant factor in passing upon the carrier's application to operate from the new source.
It is of particular significance to note that when the Commission does allow a carrier to follow the traffic it is frequently observed that a denial of the request would result in a substantial impairment of the applicant's operations. For example, in Kendrick Cartage Co. Extension, Paducah, Ky., 72 MCC 35, 37 (1957) the Commission's report states: "Another factor of considerable moment is the fact that a denial of the instant application would probably result in a complete termination of applicant's overall service * * *. It is patently clear that a loss of this income would affect its entire operation * * *. We feel that such an effect would not be consistent with the public interest and the national transportation policy."[10] In cases in which a request to follow the traffic is denied, frequently there is the implication that if the applicant's operations had been substantially impaired a permit would have been granted. Thus in Shirmer Transportation Company, Inc. Extension, Superior, Wis., 76 MCC 293, 301 (1958), after noting that the applicant would lose less than 5.5% of its net operating profit as a result of the change in source of traffic, the Commission stated, "We are not convinced that loss of such revenue, should it occur, would be so disruptive of its financial position as to affect materially its service between other points."[11]
*190 It further appears that the applicant's previous service to a shipper is a factor considered by the Commission in granting a permit to follow the traffic. In Kendrick Cartage Co. Extension, supra at p. 37, the Commission's report states: "It seems obvious that a sudden termination of this long-established service would seriously inconvenience not only the supporting shipper herein, but its numerous consignees as well, all of whom probably now deal with applicant on a thoroughly tested basis."
The fact is there is neither a doctrine for or against permitting a carrier to follow the traffic. This was made clear in Smith & Solomon Trucking Company v. United States, 120 F Supp 277, 279 (D.C.N.J. 1954). In describing the so-called doctrine the court said:
And again the court explained:
It should be noted that the follow the traffic doctrine has been appraised by the Interstate Commerce *191 Commission in a context of "public convenience and necessity" where applicant's burden of showing need for its service is heavier than it is under our procedure. A policy of "regulated competition" leaves room for a more liberal treatment of an applicant's request to continue serving its existing customers at a new point of origin even though it may move the center of competition to a new locale.
For the foregoing reasons we are of the opinion that the Commissioner acted within the scope of authority delegated to him and that his order was supported by substantial evidence and adequate findings.
Judgment affirmed.
[1] This was explained by one witness as follows:
"* * * [T]he service has been excellent with both [applicants] because of the relatively few numbers of drivers who deliver to our particular accounts; and many times those must be dispatched to arrive at a destination when the service station or bulk plant, whatever it is, is closed. The man is home in bed. They get in at three o'clock in the morning. The destination may be in Myrtle Creek or Myrtle Point or Bandon or Roseburg or Medford; and, in both cases, the driver is familiar with our facility, that they can unload it, having authority to unload it both given to them by us as a shipper, as well as the customers who receive it; which is extremely important in our arrangement."
[2] The advantages accruing from compartmentalized hauling was explained by the witness as follows:
"It's very good, for a number of reasons. Both PMT and Widing have provided us the type of service we require, due to the peculiarities of our particular operation; both, first, their compartmentization, which is extremely important because of the nature of our business. Many times they will ship four commodities on one truck to one destination, or possibly two destinations, on one load or a split-load basis."
[3] One witness testified as follows:
"Q Do you know whether or not other carriers can provide that type of compartmentized service?
"A I never have found one.
"* * * * *
"Q You want to let the examiner believe it has been your practice to tender Portland Motor Transport two thousand gallons of Ethyl, and that they have been able to transport it under conditions where other carriers were not able?
"A Right."
[4] The Commissioner found that:
"The compartmented vehicles enable Applicant to transport various kinds and grades of products in one load. This is especially important to the consignees for the reason that a good many of them have comparatively small operations utilizing various products. They are not able to take a full load of any one product, but by ordering smaller amounts of different products they can take delivery of a complete load. The compartmented vehicles also enable Applicant to make deliveries of several products to different customers from the same load."
The Commissioner also found that there was a "demand" for applicants' services and that their services would be used if the permit was granted. None of these findings, however, negative the assertion by protestants that they can and will serve the needs of applicants' witness and others in the area.
[5] See, Fulda, Competition in the Regulated Industries: Transportation, p. 457 (1961).
[6] This view is expressed in the following quotation taken from Sinett v. United States, 136 F Supp 37, 42 (D.C.N.J. 1955):
"* * * In order to maintain an economical and adequate transportation system existing carriers normally should have the right to transport all traffic which they can handle in an adequate and efficient manner without the additional competition of a new operation."
[7] Southwestern Greyhound Lines, Inc. v. Railroad Commission, 208 SW2d 593 (Tex Civ App 1947); Kerrville Bus Co. v. Continental Bus System, 208 SW2d 586 (Tex Civ App 1947). The Texas approach is criticized in 27 Tex L Rev 515 (1949).
[8] In this connection Fulda notes the attempt made by Congressman Celler to define the relationship between free competition and regulation in a proposed enactment which contained the declaration that "the principles of free enterprise embodied in the anti-trust laws": shall be maintained "to the maximum extent practicable." Commenting on this proposal Fulda states:
"The Celler proposal offers a useful guide for defining the respective roles of competition and regulation. It reflects the idea that competition and regulation are complementary devices designed to achieve the same ends, and that the latter is to be used only when and to the extent that the former is not `practicable' or would be `destructive.' In other words, regulation should replace competition only when this is deemed necessary to insure satisfaction of all transportation needs of the public at lowest costs consistent with fair earnings for the carriers."
[9] Jason W. House Contract Carrier Application, 1 MCC 725, 735 (1937).
[10] J.L. Stroud Contract Carrier Application, 79 MCC 805, 13 Fed Car Cas, Para. 34,594 (1959); Helm's Express, Inc. Extension Mawhah, N.J., 67 MCC 183 (1956).
[11] H.H. Follmer Contract Hauling, Inc. Extension, Baltimore, Md., 82 MCC 18 (1959). | 207e841652098257aa24d250673e081367e37957ec6365cc3f79b19cef5462ff | 1963-12-18T00:00:00Z |
60ae043e-5543-4479-9db0-e95e2466ac4c | Hayes v. Killinger | 235 Or. 465, 385 P.2d 747 | null | oregon | Oregon Supreme Court | Affirmed October 9, 1963.
*466 Charles D. Burt, Salem, argued the cause and filed the brief for appellant.
David Landis, Portland, argued the cause for respondent Wallace. On the brief were Howard K. Beebe and Maguire, Shields, Morrison, Bailey & Kester, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN and LUSK, Justices.
AFFIRMED.
*467 ROSSMAN, J.
This is an appeal by the plaintiff Dale Hayes, from a judgment of involuntary nonsuit which the circuit court entered in favor of the defendant, Lloyd Wallace. The alleged cause of action which terminated in that manner arose from injuries which the plaintiff sustained when his right arm was caught in a corn picking machine which was operated on Wallace's farm in Marion County. In addition to Wallace, the complaint made as parties defendant three individuals by the name of Killinger. It alleged that the four were joint adventurers in harvesting corn and operating the machine. It charged that the four should be held jointly and severally liable for the plaintiff's injuries. The motion of Wallace for an involuntary nonsuit which was made at the close of the plaintiff's case in chief was sustained by the trial judge on the ground that the record contained no evidence of a joint adventure. This appeal challenges that ruling. The Killingers are not parties to this appeal.
The defendants Killinger were engaged in the business of farming in Marion County as partners under the name of George Killinger & Sons. Sometime in 1959 or 1960 they purchased a corn picking machine for the purpose of harvesting their own corn crop and operating the machine on a custom picking basis on other farms in the area. The corn picker was a power driven machine mounted on a farm tractor and used for picking the ears of corn from the stalks in the field. Two trucks were required for the continuous and efficient operation of the picker; one operated along side the machine and received the ejected ears of corn while the other hauled the corn to the cannery. Defendant Wallace owned a truck and was engaged by the Killingers in 1960 to assist in the custom picking *468 operation by providing one of the two required trucks.
The farmer whose corn was being harvested was charged a stated price per ton for picking and hauling the corn usually between $5.50 and $6.00 depending on the distance the corn was transported. The Killingers collected the total charge for picking and hauling the corn from the farmer and deposited the receipts in the business account of George Killinger & Sons. They then paid Wallace a stated amount per ton of corn that he hauled based on "weight slips" that he received from the cannery when the corn was delivered.
Wallace paid all the expenses incidental to his truck gas, oil, repairs and insurance and realized as "profit" the amount remaining after his expenses were paid. The Killingers retained the amount collected for picking the corn and the amount paid for hauling by the other truck which they owned, and operated. The expenses of operating the corn picker and the tractor on which it was mounted were borne entirely by the Killingers. They calculated their profits by deducting these expenses from the amount collected for picking and hauling. Ralph Killinger testified that they also deducted the amounts paid to Wallace for hauling in determining the profit derived from the corn picking operation. To illustrate this significant point we shall assume that a farmer is charged $6 per ton for picking and hauling his corn. This $6 per ton would be collected by the Killingers who would deduct (1) $2.50 per ton paid to Wallace for the amount of corn he hauled, (2) the expense of operating their truck, and (3) the operating expense of the corn picker and tractor. The remainder, if any, would be the profit derived by the Killingers. There were other minor incidental expenses which the Killingers *469 paid such as the expenses of keeping the accounts, of banking the receipts of the operation and of entering into agreements with the farmers to harvest their corn. Wallace, in figuring his gain or loss, would deduct the expense of operating his truck from the $2.50 per ton received from the Killingers.
September 8, 1961, the day of the plaintiff's injury, the machine was being operated during the hours of darkness with the aid of artificial lighting equipment attached to the machine. The plaintiff, who was hired and paid by the Killingers, rode on a small platform attached to the rear of the picker. His duties consisted of lubricating the machine and, if it became clogged, removing grass, weeds and corn stalks that became impaled on the operating parts. In the instance which resulted in his injury the plaintiff was preparing to unclog the picker when his right arm became entangled in the operating machinery. Subsequently, he and the Killingers severed his arm with a pocket knife to free him from the machine and he was rushed to a hospital where the amputation was surgically completed. As a result appellant lost the lower portion of his arm from above the elbow.
Subsequent to the commencement of this action the plaintiff, in consideration of $20,000 executed with the Killingers a covenant not to sue them and to hold them harmless from any judgment that may arise from the injury. He then proceeded against Wallace individually on the theory he was jointly and severally liable.
Defendant Wallace pleaded a separate defense and sought a permanent injunction against the plaintiff's prosecution of such a cause of action against him. The trial court sustained the plaintiff's demurrer to this separate defense and Wallace prosecutes a cross-appeal. *470 Since we will affirm the trial court's disposition of the motion for nonsuit, it is unnecessary to consider the cross-appeal. As the plaintiff admits, Wallace can be liable only if he is a joint adventurer with the Killingers.
1. In assessing the trial court's disposition of the motion for involuntary nonsuit, it is our duty to view the evidence in the light most favorable to the opponent of the motion.
Plaintiff contends the question of joint adventure should have been submitted to the jury as a question of fact. Preston v. State Industrial Accident Commission, 174 Or 553, 149 P2d 957, quotes with approval the following from 47 CJ 773:
Uniting these principles, we must view the evidence in a light most favorable to the plaintiff to determine whether it justifies the single inference in the minds of reasonable men that a joint adventure did not exist between Wallace and the Killingers in the corn picking operation. The evidence must be viewed in the proper framework of applicable law. Consequently, we must determine what constitutes a joint adventure as a matter of law.
2. The principal difference between a joint adventure and a partnership is that a partnership is ordinarily formed for the transaction of general business of a particular kind while a joint adventure is usually limited to a single transaction. This distinction is of little importance to our deliberations in this case; *471 and although in a strict legal sense the difference does exist, the rules applicable in determining the existence of a partnership form the criteria of existence of a joint adventure. McKee v. Capitol Dairies, 164 Or 1, 99 P2d 1013; Preston v. State Industrial Accident Commission, 174 Or 553, 149 P2d 957; Wheatley v. Carl Halvorson Inc., 213 Or 228, 323 P2d 49.
3, 4. The essential test in determining the existence of a partnership is whether the parties intended to establish such a relation. Given the multiplicity of legal consequences that flow from a partnership, we should not surprise the parties into such a relationship against their will. However, a disinclination to assume the burdens of a partnership does not necessarily preclude the creation of that relationship, since the substance of legal intent rather than the actual intent may be controlling. In the absence of an express agreement codifying the relationship, the status may be inferred from the conduct of the parties in relation to themselves and to third parties. In other words, if they function as a partnership, they must assume the attendant duties and liabilities. Preston v. SIAC, 174 Or 553, 149 P2d 957; First National Bank of Eugene v. Williams, 142 Or 648, 20 P2d 222; Worden v. Beals, 120 Or 66, 250 P 375.
5. In placing the conduct of these parties in the framework of a partnership, no one factor is absolutely determinative; the entire factual setup must be examined as a whole. But when faced with the intricate transactions that arise, this court looks mainly to the right of a party to share in the profits, his liability to share losses, and the right to exert some control over the business. Those are deemed the earmarks of a partnership. Cogswell v. Wilson, 11 Or 371; Kelley v. Bourne, 15 Or 476; Flower v. Barnekoff, 20 Or 132; *472 Hansen v. Bogan, 127 Or 399, 272 P 668; First National Bank of Eugene v. Williams, supra. We proceed to a consideration of these three factors individually.
The Uniform Partnership Law, adopted in Oregon in 1939, provides: (ORS 68.120)
6. It is well settled in Oregon that the receipt by a party of a share of the profits of a business or venture as compensation for his services in the enterprise does not by that fact alone constitute him a partner. In other words, in order to establish prima facie evidence that a party is a co-partner, it must appear his right to share in the profits results from the fact he is a part owner of them. Shebley v. Quatman, 66 Or 441, 134 P 68; Smith v. McGowan & Sons, 131 Or 522, 284 P 189; First National Bank of Eugene v. Williams, supra; Worden v. Beals, supra; Elliott v. Murphy Timber Co., 117 Or 387, 244 P 91, 48 ALR 1043; Preston v. SIAC, 174 Or 553, 149 P2d 957; Claude v. Claude, *473 191 Or 308, 228 P2d 776, 230 P2d 211; Eldridge v. Johnston, 195 Or 379, 245 P2d 239; Moore v. Willamette Iron & Steel Works, 127 Or 134, 271 P 49; Marnon v. Vaughan Motor Co., Inc., 184 Or 103, 194 P2d 992. As we said in Devereaux v. Cockerline, 179 Or 229, 170 P2d 727:
Defendant Wallace was paid a portion of the receipts of the corn picking operation on the basis of the number of tons of corn he actually hauled. He was paid only for the exact services he performed and no more. He realized a profit from the operation of his truck only if this amount thus received exceeded his expenses.
We quote from the testimony of Ralph Killinger, the plaintiff's first witness:
Ralph Killinger also testified that George Killinger & Sons calculated their profits for the corn picking operation by deducting the expenses of operation and the amount paid to Wallace for hauling. This indicates that Wallace received a portion of the gross receipts *474 rather than the net profits; and that the profits remaining after expenses and hauling were deducted belonged to the partnership of George Killinger & Sons. The profits derived from the operation by George Killinger & Sons and Wallace respectively were calculated independently and it is easily possible one could have suffered a loss while the other realized a gain. The amount that Wallace received was not his share of the profits as such but compensation for his services in hauling the corn.
It will be fruitful to review our past disposition of this problem of shared profits. In Willis v. Crawford, 38 Or 522, 63 P 985, 64 P 866, this court denied equitable relief in the nature of an accounting to the plaintiff, a lawyer, who had agreed with the defendant, another lawyer, to share fees derived from legal services rendered to an individual. Although the two attorneys occupied the same office space, they had not ordinarily acted as partners, but in the particular transaction in question they rendered the services jointly and the client paid all the expenses. We held dividing the fees did not create a partnership on the basis of shared profits.
In Wheeler v. Lack, 37 Or 238, 61 P 849, the plaintiff and defendant entered into an agreement to divide the brokerage commission in case either should refer to the other a customer to whom sales of property should be made. There was no provision in the agreement for the sharing of expenses or losses. We there held the plaintiff had failed to establish the existence of a joint adventure.
In Marnon v. Vaughan Motor Co., 184 Or 103, 194 P2d 992, plaintiff invented a mobile lift truck and entered into an agreement with defendant whereby Vaughan Motor Co. was to produce the lift truck assuming *475 all expenses of manufacture. Plaintiff set up dealerships throughout the United States to market the lift trucks and was paid eight per cent of gross sales. From this amount he paid all expenses of maintaining the dealerships. The decision held that Marnon was an agent and not a joint adventurer. Justice LUSK stated:
7. The sharing of losses when they occur is one of the major elements of a partnership in the absence of an agreement to the contrary. McKee v. Capitol Dairies, 164 Or 1, 99 P2d 1013; Elliott v. Murphy Timber Co., 117 Or 387, 244 P 91; Devereaux v. Cockerline, 179 Or 229, 170 P2d 727. Viewed in isolation, the failure to share losses may not determine the status of the relationship for it is perfectly consistent with the existence of a partnership that one partner assumes all the losses. But this result ordinarily arises by express agreement. If a partnership does exist, absent agreement to the contrary, an obligation to share the losses is implied from the relationship. An agreement between partners may provide for a disproportionate sharing of the losses or even the assumption by one partner of all the losses. Devereaux v. Cockerline, supra.
Thus, in reviewing the activities of the parties to determine whether their conduct is that of co-partners *476 in a venture, whether they share the losses is a material element. If they share the losses they are in one respect functioning as a partnership; conversely, the absence of a sharing of losses is a circumstance mitigating against the existence of a partnership.
We quote again from the testimony of plaintiff's witness Ralph Killinger who swore on cross examination:
Counsel for the plaintiff failed to alter this testimony on redirect examination.
Ralph Killinger also testified during this redirect questioning that if a farmer failed to pay him for the picking and hauling operation he did not believe he would have to pay Wallace. This is the only instance revealed by the record in which Wallace would sustain a loss because the corn picking operation sustained a loss. We do not equate this with the factor of "sharing losses" attributable as an element of partnership. It is idle to speculate on the types of losses that could arise in an operation such as this, but there certainly must be more than simply the loss from an uncollected debt.
It is not necessary for us to determine the exact status of Wallace; we are called upon only to decide whether he was a joint adventurer with George Killinger *477 & Sons. An individual, such as Wallace, could be either an employee or an independent contractor if his compensation was contingent upon collection of moneys by some one in a higher status such as the Killingers. It is too far removed from the ordinary concept of shared losses to be considered indicative of partnership.
Smith v. McGowan & Sons, 131 Or 522, 284 P 189, presents a similar situation. One issue in that case involved the existence of a partnership between plaintiff Smith and one Rogers. Rogers, an Oregon resident, had a commercial fishing license and a leasehold interest in some docks and fishing equipment. Smith, a commercial fisherman, was a Washington resident and could not obtain the required Oregon fishing license. Rogers and Smith entered into an agreement whereby Rogers was to allow Smith to use his license and leased property and was to receive 2 per cent of the gross receipts from sale of fish. They had an "understanding" that Rogers was not to receive his 2 per cent if there were no profits or if "the profits did not justify" the payment. The decision held there was no partnership. Rogers' compensation was contingent on there being sufficient profit from the fishing operation, while Wallace's payments were contingent only on collection of the accounts.
8. Joint control as well as an agreement to share the profits and losses is generally essential to a joint adventure or partnership. 30 Am Jur, Joint Adventure, §§ 10, 12, p. 682; Portland Trust & Savings Bank v. Lincoln Realty Co., 180 Or 96, 170 P2d 568; Drake Lumber Co. v. Paget Mortgage Co., 203 Or 66, 274 P2d 804. Its importance may be greatest in situations *478 where there is an agreement to share profits without any agreement to share losses. In such cases the right to direct and control the affairs of the venture can often distinguish those who have a proprietary interest in the profits from those whose interest is limited, such as employees, lenders, or independent contractors.
The existence of joint control in a particular relationship must be distinguished from the right of joint control. If a party has the right of joint control in the first instance, he can delegate it or surrender it in varying degrees to another party in the relationship. Patently, the right must exist before it can be delegated or surrendered. It follows then if from the inception of the relationship there is no right of management, there is none to delegate. This factor, although not controlling, mitigates against the existence of a partnership.
In this case we are faced with a situation where there is no express agreement, and we must look to the objective conduct of the parties to determine where the right of control reposed.
The record, when viewed as a whole, reveals the Killingers exerted the predominant influence in the conduct of the corn picking operation. They purchased the corn picking machine, hired the plaintiff and paid his wages, kept the books and accounts of the operation, entered into agreements with the farmers to harvest their corn, collected the charges for corn picking and hauling, deposited the receipts in the George Killinger & Sons business account, paid Wallace when he requested, and as testified by Ralph Killinger, he and his brother "were in charge of the operation."
There is scant indication that Wallace exerted any control in the enterprise. He did not enter into agreements with the farmers to harvest their corn. *479 He responded thus to a question posed by plaintiff's counsel:
From the testimony of the plaintiff, we see that Wallace had only a modicum of control over plaintiff. On redirect and recross examinations the plaintiff swore:
And on recross examination:
These portions of the plaintiff's testimony indicate that Wallace, far from manifesting the attitude of an employer, acted like any cooperative fellow worker in pointing out to plaintiff when and where the machine was clogged. Wallace's instruction to "get up and shove it down in the corners" bespeaks more of a request for aid in getting a bigger load than an order from an employer. He was paid on the basis of weight and the more weight per load the more profit could be derived from a single trip.
These excerpts quoted from the record are the only evidence if such they are that Wallace shared or had a right to share in control of the corn picking operation. They are not evidence that defendant Wallace had a right to share in the management of the enterprise as a joint adventurer.
9. In summary we see that in order to create a joint adventure it is not enough that the parties act in concert to achieve some economic objective. The ultimate inquiry is whether the parties manifested by their conduct a desire to commingle their profits, control, and risks in achieving the objective. The case at bar does not, in our opinion, reveal such an amalgam of funds, of property, of skills, of risks, of control or of interest as would create a joint adventure. The minds of reasonable men would coalesce, we believe, in this view. The judgment of the trial court granting the motion for involuntary nonsuit is affirmed. | 9fd6d8ef131bcad33320996172b5d4b2691f92f0cbc32847abe3934a8cee850f | 1963-10-09T00:00:00Z |
83a07c4a-6238-49e7-af24-0abe8a1ff0fd | State Bar v. Miller & Co. | 235 Or. 341, 385 P.2d 181 | null | oregon | Oregon Supreme Court | Affirmed as modified September 18, 1963.
*342 James H. Clarke, Portland, argued the cause for appellant. With him on the briefs was Malcolm J. Montague, Portland.
Robert A. Leedy, Portland, argued the cause for respondents. With him on the brief were Barzee, Leedy & Tassock.
H.H. Perry, Jr., Albany, Georgia; Wayland B. Cedarquist, Chicago, Illinois; Jonathan F. Ells, Winsted, Connecticut; Raymond Reisler, Brooklyn, New York; Warren H. Resh, Madison, Wisconsin; R. Carleton Sharretts, Jr., Baltimore, Maryland; George H. Turner, Lincoln, Nebraska; and Melvin F. Adler, Fort Worth, Texas, filed a brief as amicus curiae for the American Bar Association.
Leonard L. Silverstein and Gerald H. Sherman, Washington, D.C., filed a brief as amicus curiae for Advanced Life Underwriting.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, Justices.
AFFIRMED AS MODIFIED.
O'CONNELL, J.
Plaintiff seeks to enjoin defendants from the unauthorized practice of law. ORS 9.160.[1] The trial court entered a decree enjoining defendants from *343 carrying on certain activities related to the business of preparing estate plans. The decree also specified that certain conduct in carrying on the business of defendants did not constitute the practice of law. Plaintiff appeals, praying for a modification of the decree on the grounds that it is vague and inconsistent and that it permits defendants to practice law in connection with the conduct of some of its business.
Defendant Miller is the principal stockholder and president of defendant, Executive Estate Planners, Inc. Mr. Miller is not a lawyer. The nature of defendants' business is described by Mr. Miller as follows:
Mr. Miller also engages in the business of selling insurance. He argues that the estate planning business is merely incidental to the business of selling insurance. However, it was clearly established that the estate planning business was carried on as a distinct enterprise offering service to clients irrespective of their insurance needs.
The defendant company solicits business through salesmen who are paid a percentage of the fee charged for an analysis of the client's estate. A variety of factors reflecting upon tax liability are considered in *344 preparing the analysis. For example, a report to the client might contain suggestions relating to the transfer of assets, the making of gifts, the use of the marital deduction, the use of inter vivos and testamentary trusts, and other devices designed to minimize taxes. The client's will is examined for the purpose of determining the need for change with regard to reducing taxes. These and other suggestions are a standard part of the service performed by defendants.
1. Much of the advice contained in the report to the client could not be given without an understanding of various aspects of the law, principally the law of taxation. Most of the advice is in terms of "suggestions." In each instance the client is urged to consult his own attorney. But whether the report takes the form of suggestions for further study or as a recommendation that the suggestions be subjected to further scrutiny by a lawyer, the fact remains that the client receives advice from defendants and the advice involves the application of legal principles. This constitutes the practice of law.
2. Defendants contend that they employ the law in essentially the same manner as many types of businesses which require the understanding and application of legal principles by those who are not admitted to the bar, as for example, the architect who advises a prospective builder that a proposed structure does not conform to the applicable building code, or the travel agent who advises his customer of passport requirements. It must be conceded that frequently advice given in the course of carrying on a business is shaped by a knowledge of the applicable law. But the giving of such advice is not in every instance regarded as the practice of law. The legal ingredient in the advice may be so insubstantial as to call for the application *345 of the principle of de minimis non curat lex. This is not to say that we adopt the view permitting the practice of law where the legal element is merely incidental to the business activity being carried on.[2] To fall outside the proscription of the statute the legal element must not only be incidental, it must be insubstantial. It cannot be said that one who plans another person's estate employs the law only in an insubstantial way.
There remains only the question of the adequacy of the lower court's decree. The decree was as follows:
3. Plaintiff objects to the decree on the ground that it permits defendants to practice law as an incident to the business of selling life insurance. Part 1(c) of the decree permits defendants to estimate the cash requirements for estate tax purposes. In many, if not in most cases, to make such an estimate would require an understanding and application of the tax laws to the client's estate. This would constitute the practice of law. Part 1(d) permits defendants to advise customers on the tax consequence of life insurance.
The life insurance needs of the client can be determined only in relation to the client's estate as a whole. Whether life insurance is preferable to some other method of distributing the assets of the estate calls *347 for an appraisal requiring an understanding of relevant legal principles. An insurance salesman can explain to his prospective customer alternative methods of disposing of assets, including life insurance, which are available to taxpayers generally. He may inform his prospect in general terms that life insurance may be an effective means of minimizing his taxes. He cannot properly advise a prospective purchaser with respect to his specific need for life insurance as against some other form of disposition of his estate, unless the advice can be given without drawing upon the law to explain the basis for making the choice of alternatives.[3]
The decree of the lower court can be construed to permit this type of advice. To eliminate the ambiguity the following decree is substituted for that entered by the lower court. Defendants are enjoined from preparing estate plans embodying legal analysis either as a separate service or as an incident to carrying on the business of selling insurance.
Decree modified.
[1] ORS 9.160 "Except for the right reserved to litigants by ORS 9.320 to prosecute or defend a cause in person, no person shall practice law or represent himself as qualified to practice law unless he is an active member of the Oregon State Bar."
[2] This view was rejected in Oregon State Bar v. Security Escrows, Inc., 75 Adv Sh No. 12, 635 at 643, 233 Or 80, 377 P2d 334 (1962).
[3] See Chicago Bar Association v. Financial Planning, Inc. (Superior Court, Cook County, Illinois), 24 Unauthorized Practice News No. 2, p. 29 (1958); Opinion 1959-A, American Bar Association Standing Committee on Unauthorized Practice of Law; Eplen, Unauthorized Practice and Estate Planning, 26 Unauthorized Practice News No. 2, p. 104 (1960). | 99d52d5c2ad5aa90cb6ee5d5dcc1e873801c4d07c0c417b3bb94f36da8c1f002 | 1963-09-18T00:00:00Z |
ba4b242a-027d-45e7-973d-7078475191f4 | George v. Erickson's Supermarket, Inc. | 236 Or. 64, 386 P.2d 801 | null | oregon | Oregon Supreme Court | Affirmed November 20, 1963.
*65 Al J. Laue, Salem, argued the cause for appellant. With him on the brief were Williams & Skopil, Salem.
Myron L. Enfield, Salem, argued the cause for respondent. With him on the brief were Rhoten, Rhoten & Speerstra, Salem.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
PERRY, J.
This is an action for damages resulting from personal injuries sustained by plaintiff while shopping at defendant's food market. The trial court directed a verdict in favor of defendant. From this judgment plaintiff appeals.
The facts are not in dispute. On May 30, 1961, plaintiff entered defendant's grocery store to make certain purchases. After selecting the desired items and passing through the check stand, plaintiff slipped on a strawberry lying on the floor and fell heavily on her back. The resulting injuries required hospitalization and extensive medical expenses.
At the trial, plaintiff introduced evidence that immediately after the accident one "Frenchie" Schumacher, a grocery checker at the store, stated, "that should have been cleaned up." It was contended that this statement imputed to defendant a prior knowledge that the strawberry was there. Schumacher testified, however, that she had not seen any strawberries on the floor prior to the accident. Following this testimony *66 the court granted defendant's motion for a directed verdict.
The sole question on appeal is whether the court erred in not submitting the issue of defendant's negligence to the jury.
1. The law applicable to invitees who are injured by slipping on a foreign substance is well settled in Oregon. As enunciated in Cowden v. Earley, 214 Or 384, 327 P2d 1109, an invitee must show either (1) that the substance causing her to slip and fall was placed on the floor by defendant, or, (2) that defendant knew that the substance was there and failed to use reasonable diligence to remove it, or (3) that the substance had been there for such a length of time that the occupants should have, by the exercise of reasonable diligence, discovered and removed it.
2. Plaintiff has elected to base her case on the second proposition, that defendant possessed knowledge that the strawberry was lying on the floor and failed to exercise reasonable diligence to remove it. Only the equivocal statement of Frenchie Schumacher was offered in support of this argument. When the probative value of this statement was diluted by Schumacher's subsequent testimony that she had not in fact seen any strawberries on the floor, the court properly directed a verdict for the defendant. The rule is stated by Prosser on Torts, Second Edition, Section 42 at page 200, and quoted with approval in Secanti v. Jones, 223 Or 598, 349 P2d 274, 355 P2d 601; and Eitel v. Times, Inc., 221 Or 585, 352 P2d 485, as follows:
Under such circumstances, it was the duty of the trial court to direct a verdict for the defendant.
The judgment is affirmed. | f6e314fdfb4ca856ddfd957f87620a2d86ac0670e318edba95e57de949e38607 | 1963-11-20T00:00:00Z |
c5797b0e-859f-4380-8325-fb332a985f91 | Headley v. United Fid. Hosp. Assur. | 235 Or. 302, 384 P.2d 1007 | null | oregon | Oregon Supreme Court | Reversed with directions September 5, 1963.
*303 Donald G. Krause, Portland, argued the cause for appellant. With him on the brief were Krause, Lindsay & Nahstoll.
Maxwell Donnelly, Portland, argued the cause for respondent. With him on the brief was William P. Donnelly, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, O'CONNELL and DENECKE, Justices.
REVERSED WITH DIRECTIONS.
O'CONNELL, J.
This is an action brought by the executrix of the estate of Eva M. Headley, deceased, to recover under a hospital insurance policy issued by defendant. Judgment was entered on a verdict for plaintiff. Defendant appeals, contending that the trial court should have granted its motion for a directed verdict or its motion for a judgment n.o.v.
The defendant issued a policy of insurance to Mrs. Headley on December 15, 1960. The policy provided benefits for hospital and other specified services made necessary because of sickness or accidental bodily injuries.
Mrs. Headley was hospitalized on December 20, 1960 as a result of contracting pneumonia. She was discharged on January 1, 1961 but was hospitalized again on April 4, 1961 for bronchitis and tracheo-bronchitis. The bronchial condition worsened making it difficult for Mrs. Headley to breathe. Finally, it became necessary to perform a tracheotomy in order *304 to reduce the difficulty in breathing. The operation was performed on April 18, 1961. She died the following day.
A claim was presented to defendant by Mrs. Headley's executrix for hospitalization and surgical expense. The claim for surgical expense is not in question on this appeal.[1] The claim for hospitalization expense resulting from Mrs. Headley's sickness was denied by defendant on the ground that it was excluded from coverage under the following provision of the policy:
The foregoing provision was a part of a section of the policy entitled "CONDITIONS AND REDUCTIONS." Preceding that section the policy contained a provision entitled "SPECIAL COVERAGE FOR PRE-EXISTING CONDITIONS" and which read as follows:
The trial court held that there was sufficient evidence from which the jury could conclude that Mrs. Headley's hospitalization was the result of a pre-existing non-congenital condition which existed before the five-year period immediately preceding the effective date of the policy and, further, that the condition had not been treated "by medicine, therapy, surgery or any practitioner" during that period. The trial court concluded that the proviso making the special coverage clause "subject to the terms and conditions contained herein" did not incorporate by reference the aforementioned clause that "[a]ny sickness resulting in a surgical operation shall be covered only after this certificate has been maintained in continuous force for six months." The jury was instructed to this effect and returned a verdict for plaintiff.
1. Defendant contends that the special coverage clause incorporates by reference the clause excluding coverage for sickness resulting in a surgical operation during a six month period. We agree. The provision relating to sickness resulting in a surgical operation is without question, a "condition" of the policy. Therefore, it must be read into the clause relating to coverage for pre-existing conditions.
2, 3. Plaintiff argues that the two clauses are incompatible and that if the condition relating to sickness resulting in surgery is read as a condition of the clause providing for immediate coverage, the latter clause is deprived of all meaning because it leaves the "special coverage" in exactly the same status as coverage provided for in other parts of the policy where the word immediate is not used. This is not true. A pre-existing *306 condition untreated for the five-year period would provide immediate coverage for all types of physical conditions except sickness resulting in surgery during the six month period after the effective date of the policy (and certain named sicknesses expressly excluded from coverage until the six month period had expired). Why the company selected for exclusion from immediate coverage sickness resulting in surgery we do not know. However, an insurer is privileged to do so and we cannot rewrite the insurance contract.[2]
4. It is further argued that even if the two clauses are read together the tracheotomy was merely an incidental operation resorted to for the purpose of reducing Mrs. Headley's difficulty in breathing, and that it was not the direct result of her bronchitis within the meaning of the policy. It may be conceded that the "sickness" clause would not exclude coverage simply because a surgical operation followed causally from an illness. If an insured were hospitalized for pneumonia and developed bed sores which required surgical treatment, surgery would "result" from sickness. Yet the sickness would only be an indirect cause of the surgery, and it would be proper to regard the "sickness" clause as inapplicable. But that is not the present case. Here tracheotomy was a direct result of the bronchitis. Recovery has been denied under similar circumstances.[3]
It has been suggested that the clause "[a]ny sickness resulting in a surgical operation" could be construed *307 to mean any sickness for which surgery is customarily employed as a method of treatment designed to effect a cure. This would, of course, make the clause inapplicable in the present case because the tracheotomy was not performed as a means of effecting a cure but in an attempt to prevent death by suffocation. However, we are unable to discern anything in the policy or in the purpose of the clause which would entitle us to assume that the clause was intended to have such limited application.
5. It is argued that because Mrs. Headley had bleeding ulcers and several other physical conditions needing treatment, it cannot be said that all of her sickness resulted in surgery. But she was hospitalized because of her bronchial condition and that is the "sickness" which must be considered in determining whether the insured is entitled to hospitalization benefits under the policy.
The judgment is reversed and the case is remanded with directions to enter judgment for defendant.
[1] The lower court withdrew from the jury the issue as to plaintiff's right to recover surgical expenses because the policy excluded coverage under the circumstances. The policy provided as follows:
"If, as a result of such sickness after this certificate has been in continuous force for six consecutive months, the Subscriber * * * shall have a surgical operation performed * * * United Fidelity will pay the fee charged for such service * * *."
The surgical operation was performed on Mrs. Headley within the six month period after the policy was issued.
[2] Inman v. Life Insurance Co. of Virginia, 223 S C 98, 74 SE2d 423 (1953).
[3] American Life Insurance Co. v. Barnett, 51 So2d 227 (Miss 1951); American Standard Life Insurance Co. v. Redford, 337 SW2d 230 (Tex Civ App 1960); United American Insurance Co. v. Pittillo, 308 SW2d 241 (Tex Civ App 1957). | 9a36f83abcb663d160a9b2e3dd8305260d450dd2c6ba7f4f7fd2819d6e656535 | 1963-09-05T00:00:00Z |
a785d5dc-a1e8-4665-a71b-1cc36b17af35 | Kowaleski v. Kowaleski | 235 Or. 454, 385 P.2d 611 | null | oregon | Oregon Supreme Court | Affirmed October 9, 1963.
*455 Milton O. Brown, Portland, argued the cause for appellant. With him on the briefs were Brown & Kettleberg and Richard Egner, Jr., Portland.
Roland Banks, Jr., Portland, argued the cause for respondent. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson and Gordon Moore, Portland.
Before PERRY, Presiding Justice, and O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
AFFIRMED.
DENECKE, J.
This is an automobile accident case.
The sole issue is: was the driver of the car, as a matter of law, the servant of the owner of the car? The trial court left this question of agency to the jury. The jury returned a defendant's verdict.
*456 The driver, Andrew Kowaleski, and the car owner, Antone Kowaleski, are brothers. They operate a service station in Portland. After work Antone planned to go to Andrew's home and have dinner with Andrew and Andrew's wife, the plaintiff. Antone owned a farm at Scappoose, Oregon, a town about 25 miles from Portland. When the plaintiff came over to pick up her husband, Andrew, Antone asked Andrew to drive Antone's car to Scappoose and do the necessary chores at the farm. (Antone made this request because he was wet from working outside.) Andrew agreed and drove away in Antone's car.
Antone's car, driven by Andrew, collided with Andrew's car, driven by plaintiff, Andrew's wife, and in which Antone was riding as a passenger. In this same action we previously decided plaintiff could maintain an action for personal injuries against Antone, although she could not maintain one against Andrew, as he was her husband. Kowaleski v. Kowaleski, 227 Or 45, 361 P2d 64 (1961)[1].
The testimony varies as to what instructions Antone gave Andrew. Antone testified he simply asked him if he would go out to the farm and feed the stock. Plaintiff stated Antone gave more detailed directions.
Andrew received no compensation for his efforts. He expected none. He had done this same favor for his brother before. Andrew described it as a friendly gesture he would have done for anyone who asked.
These facts pose this question: Is a car owner liable, as a matter of law, for the acts of a friend or *457 relative driving the owner's car in the gratuitous performance of an errand for the owner?
1, 2. Several accepted principles are involved in the solution of this problem. Under some circumstances when a car owner permits another to take his car, a bailment is created. The bailor, the owner of a car, is not vicariously liable for the negligence of the bailee of the car. For example, see Kantola v. Lovell Auto Co., 157 Or 534, 72 P2d 61 (1937). On the other hand, pursuant to the principle of respondeat superior, a master-car owner is liable for the negligence of his servant-driver, acting within the scope of his employment.
3, 4. Whether or not a car owner is responsible for the acts of his driver has been couched in terms of both principal and agent and master and servant. Houston v. Keats Auto Co., 85 Or 125, 166 P 531 (1917); Kantola v. Lovell Auto Co., supra. The relationship of master and servant is one type of agency. 1 Restatement 2d 477 et seq, Agency § 218. All servants are agents and all masters, principals. However, all principals and agents are not also masters and servants. The Comment to § 250, 1 Restatement 2d 549-550, Agency, states the distinction as follows:
5, 6. One can be a servant even though the service is performed gratuitously. Butenshon v. Shoesmith, 191 Or 76, 83, 228 P2d 426 (1951). Proof of ownership of the car by one other than the driver, together with proof that the car was being driven with the permission of the owner, creates a prima facie case that the driver was acting as the servant of the owner. This, however, can be refuted by proof that the driver is acting in a status other than that of servant. Judson v. Bee Hive Auto Service Co., 136 Or 1, 294 P 588, 297 P 1050, 74 ALR 944 (1931).
7. Many functional and analytical analyses have been advanced to solve the problem of when should a car owner or master generally be liable for the acts of a car driver or servant. Right by the master to control the conduct of the driver is the favorite approach of the courts, including this court. Larkins v. Utah Copper Co., 169 Or 499, 505, 127 P2d 354 (1942).[2] This is broken down into a more detailed statement: is there an assumption of control by one and a submission to control by the other? Kantola v. Lovell Auto Co., supra (157 Or at 537) (general statement); 1 Restatement 2d 492, Agency § 220, Comment m. (specific statement as to control).
*459 In the case of a paid, regular servant driving a company car on company business, it is simple to state, as a matter of law, that under those circumstances the master has the right to control the driving of the servant. The determination of the right to control is far from simple when a friend or relative is driving another's car to do a favor for the car owner.
We realize that on some occasions instructing the jury to determine whether or not the driver was the servant of the owner on the basis of whether or not the owner had the right to control the driver's conduct is really of no assistance to the jury.[3] On such occasions the jury actually decides a policy rather than a factual question. It decides whether, under the circumstances, the car owner should be responsible for the driver's negligence. Nevertheless, we adhere to the right to control test. None of the other alternatives appear to us to offer a better solution.
*460 1 Restatement 2d 485, Agency § 220, is as follows:
8. We accept the general principle enunciated by this section that in determining whether one is a servant or independent contractor various factors must be considered. Performing services for another and using the other's car in such performance do not necessarily, in and of themselves, conclusively prove the existence of a master-servant relationship. Here, there are other influencing factors that also must be considered, such as, that the service was performed gratuitously, the actors were brothers, and Antone was not present in his car.
9. Plaintiff contends that the facts here are uncontradicted and, therefore, under the law as announced in Wiebe v. Seely, Administrator, 215 Or 331, 335 P2d 379 (1959), have to be accepted by the jury as correct. Assuming that the jury must find that Andrew was driving Antone's car to Antone's farm to do Antone's chores, we hold that the jury need not necessarily infer from such facts that Antone thereby assumed the right of control and Andrew submitted thereto. Other facts in evidence, as previously mentioned, could reasonably lead the jury to the opposite conclusion.
*462 White v. Keller, 188 Or 378, 215 P2d 986 (1950), whatever is left of its vitality after Johnson v. L.A. Seattle Mtr. Exp., Inc., 222 Or 377, 352 P2d 1091 (1960), is not controlling. In White v. Keller, supra, the car owner was riding in the car with the driver. Antone, of course, was riding with the plaintiff, not Andrew.
1 Restatement 2d 487, Agency § 220, Comment d, states:
Downes v. Norrell, 261 Ala 430, 74 S2d 593 (1954), is in accord with the proposition that the right of control is generally a question of fact. Rogge v. Great Northern Railway Co., 233 Minn 255, 47 NW2d 475 (1951), is contra.
Whether or not Andrew was acting as a servant of Antone involves questions of fact which the jury was entitled to solve. Judgment affirmed.
[1] The opinion in that appeal describes Andrew as "the defendant's employee." That appeal, however, was from a judgment for the defendant on the pleadings and, therefore, this court had to assume the allegations of the complaint were correct.
[2] Modern law review writers, however, prefer a broader social and economic approach a risk distribution based upon some kind of enterprise liability. For example, see G. Robert Morris, Jr., Enterprise Liability and the Actuarial Process The Insignificance of Foresight, 70 Yale L J 554 (1961), and Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, in the same issue at 499.
[3] The court's instruction in this case was as follows:
"I instruct you that in order to create an agency there must be evidence of a relationship between the parties in this case, the Defendant and the Plaintiff's husband, which results from a manifestation of consent, express or implied, by the one to the other; that the other shall act on his behalf and subject to his control, and there must be consent, express or implied, by the other to so act. Those elements are essential to the creation of an agency."
This was almost verbatim an instruction requested by the defendant. This form of instruction was not objected to by the plaintiff. Plaintiff did, however, except to the court's failure to instruct the jury that Andrew was the agent of Antone.
After the jury had initially retired, it returned and asked the court "if the consideration of money is necessary in connection with the question of agency." The court instructed it as follows:
"I instruct you ladies and gentlemen of the jury that the payment of money for services is some evidence of the creation of an agency, but that an agent an agency may exist without the payment of money or without any understanding that money is to be paid for services."
[4] "As the term is here used, independent contractor is the antithesis of servant. It is a technical phrase, used to include all who have agreed with another to act on his account and who are not servants. The term includes all agents who are not servants, as well as many other persons who render services but are not agents; the presence or absence of a fiduciary relation is immaterial in the idea of `independent contractor', although many independent contractors are agents. The accent is upon `independent' and not upon `contractor', since the group of `independent contractors' includes persons acting gratuitously." 1 Restatement 2d 480, Agency § 218. | ad6ee8aa1002f66e91b9f9ac681579262ad31997a047f4c9e1f00ed8f4f0fac6 | 1963-10-09T00:00:00Z |
6826c5ef-9288-488f-a91f-80963dd15a39 | Start v. Shell Oil Co. | 202 Or. 99, 273 P.2d 225 | null | oregon | Oregon Supreme Court | Argued on rehearing January 13, 1954.
Reversed August 12, 1953.
Former opinion withdrawn; reversed and remanded July 13, 1954.
Petition for rehearing denied September 15, 1954.
*102 Thaddeus W. Veness, of Portland, argued the cause for appellant. With him on the briefs was Henry Bauer, of Portland.
Wesley A. Franklin argued the cause for respondent. On the brief were Anderson & Franklin, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, LUSK, BRAND and PERRY, Justices.
REVERSED.
*103 WARNER, J.
This is an action for damages arising out of an alleged breach of warranty. The defendant C. Arntson appeals from a judgment in favor of plaintiff for $11,250, following a jury verdict.
The plaintiff Start at all the times hereinafter mentioned and for ten years prior thereto was a commercial grower of lily bulbs on his farm near Canby, Oregon, in an area which, according to Start, produces approximately 90 per cent of the Regal lily bulbs grown for commercial consumption in the United States. His enterprise, in the spring of 1948, included a seedling planting of two and one-half acres, which normally produced from three to four million Regal lily bulblets annually.
On February 16, 1948, the defendant Arntson, doing business in Portland, Oregon, as the Albina Sales Company and acting through his agent Kjome, sold plaintiff 200 gallons of a chemical prepared by Shell Oil Company and known under the tradename of "Shell Weed Killer No. 20." Start, sometime in April 1948, used the chemical to kill the weeds by spraying on the area where the bulblets were growing. He claims that as a result of a toxic condition created in the soil by the use of that specific chemical, his entire crop of bulblets for the year 1948 was ruined.
Start asserts that when he purchased the chemical, he relied upon the agent Kjome's specific representations that Shell Weed Killer No. 20 would destroy the weeds on his bulb farm but could be so used without danger of any damage or injury to his bulblets.
Arntson denies making any representations of that character to Start and, as a further defense, alleged that Start had long been in the business of growing lily bulbs for commercial trade and was fully informed *104 on the technical details of such enterprise, including matters relating to the elimination of weeds by spraying; that Arntson informed plaintiff that the weed killer in question was still in the experimental stage and that he could not tell in advance what might be the effect of the chemical when used to destroy weeds in fields where lily bulblets were growing. Arntson further sets out that Start on his own initiative had carried on experimental tests with this particular weed eradicator prior to its application to the weeds growing in the area where he was raising lily bulbs and had thereby determined from these tests, and without the assistance of the defendant, to rely and depend upon the same.
Shell Oil Company, the manufacturer of Shell Weed Killer No. 20, was originally impleaded as a defendant and in plaintiff's complaint was charged with a breach of an express warranty that the weed killer would not harm plaintiff's bulblets. It was later eliminated from the case by a motion for voluntary nonsuit.
In the interest of clarifying what is hereinafter said, we pause to observe that according to the record there are three different types of herbicides. They are: (1) a general weed eradicator which destroys all growing vegetation, weed or otherwise, with which it comes in contact; (2) a selective type which, when applied directly to growing vegetation, kills only certain weeds, leaving other plant life unimpaired (herbicides employed to rid lawns of dandelions exemplify weed destroyers of this type); and (3) a pre-emergent or pre-growth spray which is applied after the noxious growths have emerged from the ground and in sufficient time before a given commercial crop has revealed itself above the surface, thus insuring that the *105 crop will avoid contact with the chemical previously employed to destroy the weeds of the same area.
In these terms Start contends that he sought, and on Kjome's representations bought, what he believed to be a pre-emergent spray, whereas the defendant contends that the herbicide sold to plaintiff was, in fact, a general weed killer and was not otherwise represented or warranted and, being such, was the efficient cause of the damage to Start's crop of bulblets.
Prior to February 1948, Start, and apparently many of the bulb growers in his vicinity, had exterminated the weeds in the bulb gardens by burning or by manual extraction, or both, expensive processes as compared with the use of a pre-emergent spray, if practical. Although he had employed chemical products sold by defendant for other purposes, such as soil fumigants, he had not theretofore used a pre-emergent spray to rid his fields of weed pests. Indeed, the record discloses that the killing of weeds by use of a chemical pre-emergent spray was a relatively-recent innovation in the business of lily bulb growing for commercial purposes, and it was a subject approached by Start and his fellow growers with eager interest, coupled with a natural caution inspired by its very novelty.
We find that plaintiff was a member of the Regal Lily Growers Association, composed of about 40 bulb growers engaged in that industry in the environs of Canby, where the organization had its headquarters. He evidenced a lively interest in the organization's affairs and was instrumental in bringing to its meetings a Mr. Rieder, entomologist of Shell Oil Company's Portland division, to discuss expertly with the members questions which they might have with reference to the betterment of their bulb crops. Responsive to Start's request, Mr. Rieder appeared at a meeting of *106 the Regal lily growers held in Canby on November 11, 1947; and Start tells us that while at that meeting "there was some talk of weedkillers", that "pre-emergence spraying was mentioned" and "Shell's weedkiller" was discussed. Start discloses a knowledge of weed killers in terms of their distinctive functions, that is, whether they were selective, general or pre-emergent sprays. He knew that D-D, a Shell soil fumigant, was a poison but disclaimed knowing that Shell Weed Killer No. 20 had deadly ingredients. While he may not have been qualified to anticipate the character and extent of the damage he sustained, we are impressed by his own testimony that he knew enough concerning chemical weed killers generally and the prevailing uncertainty of their efficiency and latent dangers to put him on further inquiry before assuming the perils entailed in dealing with an agent making such spectacular claims for his principal's product as were made to him by Kjome. Pokorny v. Williams, decided by this court July 8, 1953; Graef v. Bowles et al., 119 Or 498, 508, 248 P 1090; Portland v. American Surety Co., 79 Or 38, 153 P 786, 154 P 121.
The defendant assigns as error the court's denial of his motions for a nonsuit and a directed verdict. Both motions are challenges to the sufficiency of the evidence.
The first and most important claim in this respect is that there is no evidence that Kjome, defendant's salesman, had authority, express or implied, to warrant that the weed killer sold to Start would not damage his growing bulbs. This was stated as a ground for defendant's motion for a nonsuit and again reiterated as supporting his motion for a directed verdict.
Plaintiff's assertion of warranty made by Arntson *107 through his agent Kjome rests upon his own testimony reading:
The magnitude of such warranty is emphasized when we realize that, if truly made, the agent, in return for a sale of $40 to $50 worth of his principal's merchandise, thereby exposed his employer to a liability predicated upon the destruction of a potential $40,000 crop.
1, 2. Arntson admits that Kjome was a salesman working for him, with authority to solicit orders for Shell Weed Killer No. 20 and other agricultural chemicals sold by defendant. He also admits that Kjome is the person who contacted the plaintiff Start. We are satisfied that in so acting, he was a general agent for Arntson (1 Restatement, Agency, § 3[1]), a fact which Start had a right to assume in the absence of information to the contrary. Thomas v. Smith-Wagoner Co., 114 Or 69, 74, 234 P 814; Rae v. Heilig Theatre Co., 94 Or 408, 413, 185 P 909. The defendant urges, however, that the extent of Kjome's authority is not a question of fact to be resolved by the jury alone but is one of law solely for determination by the court. In this the defendant is not correct. A more exact statement of the *108 law is found in 3 CJS, Agency, 328, § 330, reading: "Questions of fact to be determined by the jury or other trier of the facts include questions as to the nature and extent of the authority of an agent as to whether his authority comprehends the act or contract in controversy, unless the evidence is undisputed and not open to inferences or it conclusively shows lack of authority or is manifestly insufficient to show authority." Also see 2 Am Jur, Agency, 360, § 454; Neppach v. Or. & Cal. R.R. Co., 46 Or 374, 391, 80 P 482. To the extent that Clark v. Shea, 130 Or 195, 205, 279 P 539, is in conflict with the true rule as expressed in 3 CJS, supra, it is expressly overruled. As more fully disclosed later in this opinion, the manifest insufficiency of evidence to show authority in Kjome renders the matter one of law for determination by the court. The court's denial of defendant's motions implies that it had found that such authority had been proved to its satisfaction.
3. Defendant argues that "A selling agent has no power to make any unusual warranties but has apparent authority only to make such warranties as are usual and customary in the trade."
In 2 Am Jur, Agency, 106, § 132, we find a comprehensive statement of the rules governing an agent's powers to make warranties binding on his principal:
American Jurisprudence then proceeds to summarize well the foregoing statement into what we conceive to be the true rule:
Also see Rector v. H.K. Mulford Co., (Mo), 185 SW 255; Nixon Mining Drill Co. v. Burk et al., 132 Tenn 481, 178 SW 1116, LRA 1916C, 411; Johns v. Jaycox, 67 Wash 403, 121 P 854, 39 LRA NS 1151, Ann Cas 1913D, 471.
Our own pronouncements are in accord with the principle as stated in 2 Am Jur, Agency, 106, § 132. In Reid v. Alaska Packing Co., 47 Or 215, 217, 83 P 139, this court, speaking through Mr. Justice ROBERT S. BEAN, held as follows:
Counsel for the plaintiff make no argument nor present any authority to the contrary. There is no evidence of or present claim that Kjome had express authority to make the representations which he did.
Before proceeding further to ascertain whether there is sufficient evidence that Arntson's agent was vested with implied authority to commit Arntson as plaintiff alleges he did, it is well to note first certain pertinent rules of law which must necessarily bear upon such inquiry.
4, 5. At the outset we observe that it is a well-settled rule that one deals with the agent of a third party at his peril. In Graef v. Bowles et al., supra, 119 Or 508, the court expressed itself as follows:
*111 Also see Pokorny v. Williams, supra; Finney v. Stanfield Frat. Assn., 131 Or 393, 399, 283 P 415; 3 CJS, Agency, 164, § 241.
The authority of an agent to bind his principal in contracts made with third persons is measured not only by the agent's express delegation of power but also by that which he is held out by the principal as possessing; provided, however, the third party had reason to believe and did believe that the agent was acting within and not exceeding his authority and such third party would sustain a loss if the contract was not regarded as a contract of the principal. Nicholas v. Title & Trust Co., 79 Or 226, 238, 154 P 391, Ann Cas 1917A, 1149, and cases there cited; 2 Am Jur, Agency, 82, § 101.
7. The apparent authority for which the principal may be liable must be traceable to him and cannot be established solely by the acts or conduct of the agent. The principal is liable only for that appearance of authority caused by himself. 2 Am Jur, Agency, 85, § 103.
8. This court has heretofore defined the "apparent power" or "apparent authority" of an agent to conform with the definition given by Professor Mechem. In Fine v. Harney Co. National Bank, 181 Or 411, 464, 170 P2d 365, 182 P2d 379, 171 ALR 867, we said:
Here we have but one element of the agent's authority to determine: Is there substantial evidence that Kjome, as a general agent, had apparent authority sufficiently broad from whence it might be implied that he had power to warrant that the weed killer would create no toxicity harmful to plaintiff's growing bulbs?
9, 10. In the discovery of a proper answer to that question, it should be remembered that the burden is upon the plaintiff to show that the agent had such an authority. Jones v. Marshall-Wells Co., 104 Or 388, 394, 208 P 768; 2 Am Jur, Agency, 349, § 442; 3 CJS, Agency, 257, § 317. Circumstantial evidence is ordinarily competent to establish its extent. Pokormy v. Williams, supra; Bailey v. Opp, 159 Or 301, 312, 77 P2d, 826, 80 P2d 40.
Plaintiff failed to adduce one iota of testimony from which it might be inferred that Kjome's representations could be implied as an incident of his apparent powers of agency, that is, "those which are incidental to the main authority conferred because that is the regular and ordinary way of doing business". Nor, indeed, is there any evidence of special circumstances of recognition, acquiescence or holding out on the part of Arntson warranting a deduction of such power as to which the principle of estoppel, or something akin to it, at least, must be invoked. Fine v. *113 Harney Co. National Bank, supra, 181 Or 464. To the contrary, it is established by plaintiff's testimony that he never had any personal dealings with the defendant, whose place of business was approximately 25 miles from Start's operations and of relatively easy contact. The most that can be claimed by plaintiff as to Kjome's apparent authority is that he was a salesman for Arntson, engaged in the sale of products merchandised by him. Even before Start made his purchase through Kjome, he knew that some of his neighbors had had varying results with chemical weed killers and that the use of pre-emergent sprays was a novelty in the bulb business; and although he had no information upon which to predicate an assumption that Kjome spoke as an expert in making the representations upon which Start relied, he, nevertheless, made no effort to determine whether Kjome spoke either as one skilled on the subject of pre-emergent herbicides or was authorized to so speak with express or implied authority to commit his employer to the extent that he did. Certainly he was in no position to assume that the giving of such a warranty under the circumstances was usual or customary to the usages and customs of the class of business in which Kjome was engaged in February 1948.
We conclude that in the absence of proof of express authority, the plaintiff has failed to sustain the burden of offering any evidence from whence it might be reasonably inferred that it was either usual or customary, in the sale of a herbicide of the class of which Shell Weed Killer No. 20 is a part, for a salesman to make a warranty binding on his principal of the kind and character made by Kjome to Start. It appeals to us as contrary to the established law of agency, as well as extremely dangerous to the commercial world, to *114 hold that a salesman, not shown to have any apparent or express authority other than that of taking orders for a chemical of powerful toxic content, has implied authority to make a warranty of such far-reaching import as plaintiff claims was made to him and thus expose his principal to liability for damages to the extent sought here.
It follows that the order denying defendant's motion for a directed verdict should be reversed.
Thaddeus W. Veness, of Portland, argued the cause for appellant. With him on the briefs was Henry Bauer, of Portland.
Wesley A. Franklin argued the cause for respondent. On the briefs were Anderson, Franklin & Landye, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN, LUSK, BRAND and PERRY, Justices.
FORMER OPINION WITHDRAWN; REVERSED AND REMANDED.
LUSK, J.
This action arose out of the sale in February, 1948, by the defendant, C. Arntson, through his sales agent Kjome, to the plaintiff of a chemical manufactured by Shell Oil Company bearing the trade name "Shell Weed Killer No. 20". Plaintiff sued for damages for breach of warranty alleged to have been given by the salesman. The second amended complaint on which the case was tried alleged that the defendant "specifically represented to plaintiff herein that said weed *115 killer would destroy the weeds in the plaintiff's bulb farm, but would not in any way damage or injure the plaintiff's bulblets." In a trial by jury plaintiff recovered a judgment from which Arntson, hereinafter referred to as the defendant, has appealed. Shell Oil Company was also a party defendant, but plaintiff took a voluntary nonsuit as to it. By our former opinion we reversed the judgment for plaintiff. We held that the Circuit Court erred in denying defendant's motion for a directed verdict for the reason that the salesman was without authority to give the warranty which constitutes the basis of the action.
Plaintiff grows Regal lily bulbs for commercial purposes on a farm near Canby, Oregon. He desired to obtain and use on his farm a so-called pre-emergence spray for destroying weeds, that is, a spray which is applied to the field after the crop has been planted, but before it has emerged, and after the weeds have appeared upon the surface. Plaintiff discussed the matter with Kjome, who had called on him in his capacity as a salesman of Shell Weed Killer No. 20 for defendant, and, according to the plaintiff's testimony, Kjome recommended Shell Weed Killer No. 20 as suitable for the plaintiff's purpose. Plaintiff's testimony as to the warranty is as follows:
12. Relying, as he testified, upon Kjome's representation, plaintiff purchased a large quantity of the weed killer and applied it to the ground above the sprouting bulbs. The evidence justifies a finding that as a result a taxic condition of the soil was created and the bulb crop thereby ruined. By his motion for a directed verdict, the denial of which is assigned as error, defendant raised the question now to be considered, namely, whether there is substantial evidence in the record that the salesman, Kjome, had either express or implied authority to make the representation to which the plaintiff testified.
13. It is conceded that there is no evidence of express authority. Upon the question of implied authority the rule applicable to the facts of this case is thus stated in A.L.I. Restatement, Agency § 63 (2):
14. Cases applying the principle stated in the language which we have italicized are Distillers Distributing Corp v. Sherwood Distilling Co., (CA 4th) 180 F2d 800 (opinion by Parker, Chief Judge); Miller v. Economy Hog & Cattle Powder Co., 228 Ia 626, 293 NW 4; Conkling v. Standard Oil Co., 138 Ia 596, 116 NW 822; *117 Park v. Moorman Mfg. Co., (Utah) 241 P2d 914. There is no evidence of usage in this case, and there could have been none, because, as is said in defendant's brief, "insufficient time had elapsed in the history of Weed Killer No. 20 for any type of customary warranty to be developed." Under the evidence, however, the jury could have found that the defendant had reason to know that a buyer in the plaintiff's situation would be likely to inquire whether a pre-emergence spray, applied to the soil for the purpose of killing the weeds on his lily farm, would also destroy the growing crop under the soil, and therefore that the agent had the authority to give plaintiff the assurances to which plaintiff testified and without which, in all probability, no sale would have been made. We think that a reasonable man might say that it would not be unusual or extraordinary for a buyer to evince curiosity as to that subject.
The defendant relies on Reid v. Alaska Packing Co., 47 Or 215, 83 P 139, where we held that an agent for the sale of salmon packed in Alaska had no authority to represent that "the fish would be exactly like that of Puget Sound Fancy Sockeye." We said:
A mere statement of the facts of that case reveals clearly a distinction from the present case. Selling salmon was certainly not a new enterprise, and if there *118 had been any custom to give warranties of the kind which the agents gave, testimony to that effect could have been introduced. Beyond that, it would be unreasonable to argue that the principal in the Reid case had any reason to know or to assume that the buyer would desire information of the kind contained in the warranty.
15. We cannot say as matter of law that the warranty sued upon in this case was either unusual or extraordinary or could not be found by the jury to be within the authority of the defendant's agent. Moreover, as will be shown later in this opinion, an equivalent warranty under the facts of this case would arise by operation of law, and "a selling agent has power incidental to his main authority to give an express warranty which is identical in purport and substance therewith." 2 CJS 1334, Agency § 115.
16, 17. Other grounds assigned in support of the motion for a directed verdict are without merit. The question whether plaintiff relied on the knowledge, skill or special information of the salesman was clearly for the jury to decide. One ground of the motion was that the evidence was not sufficient to prove the amount of plaintiff's damages. The brief of the defendant does not urge this contention. Instead, it argues that the evidence that the weed killer, and not the negligent or improper use thereof by plaintiff, caused the damage, is speculative and conjectural and therefore insufficient. This is a question of proximate cause not raised by the motion for a directed verdict, and consequently one which cannot be raised on appeal. The same thing is true of the contention in the brief that the plaintiff failed to give timely notice of the breach of warranty as required by ORS 75.490. This objection is not included among the grounds of the motion for *119 a directed verdict. Aside, however, from these procedural obstacles, our examination of the record convinces us that all the contentions raised in this court by the defendant in support of the motion for a directed verdict relate to questions concerning which there is conflict in the testimony and which, therefore, were properly submitted to the jury.
18. Defendant's Assignment of Error No. IV is directed to a ruling of the court which withdrew from the consideration of the jury a mimeographed circular regarding Shell Weed Killer Nos. 12 and 20 and which had theretofore been admitted in evidence over the objection of counsel for plaintiff. The information contained in the circular, if brought home to plaintiff before the sale, was material as tending to negative plaintiff's claim of reliance on the alleged warranty. Plaintiff, on his cross-examination, had denied that he had knowledge of the contents of the circular until July, 1948, which was several months after he had purchased and used Shell Weed Killer No. 20. The correctness of the ruling depends on whether there is substantial evidence that plaintiff received the circular in the summer of 1947.
On June 9, 1947, plaintiff wrote to Mr. Robert Reider, an agricultural technologist in the employ of Shell Oil Company, Inc. at Portland, Oregon, asking for information and literature about Shell soil disinfectants for the destruction of bulb pests. Mr. Reider answered him by letter dated June 17, 1947, which was devoted for the most part to a discussion of a Shell product called D-D for the elimination of pests. The concluding paragraph of the letter is as follows:
Under date of June 26, 1947, the plaintiff wrote Mr. Reider a letter which, so far as material, reads:
Reider's office copy of his letter of June 17, 1947, was received in evidence without objection. As a witness for the defendant Reider testified that a circular consisting of four mimeographed sheets on the subject of Shell Weed Killer Nos. 10 and 20 was enclosed with his letter, and he identified a circular shown to him as a copy of that enclosure. Counsel for plaintiff objected to the admission in evidence of the circular, stating that such a circular had not been received by the plaintiff and that he had no such circular in his possession. The court overruled the objection.
On cross-examination Reider testified that he dictated his letter of June 17, 1947, to his stenographer; that he had the circulars in the file and gave them to her when he finished the dictation; that after the stenographer typed the letter he signed it and gave it back to her to mail; that the circular on the subject of Shell weed killers was the only one ever gotten out by the company; that he did not watch his stenographer enclose the circulars with the letter and had no personal knowledge that they were enclosed though "he had never known her to fail yet." The plaintiff *121 admitted on rebuttal that he received Reider's letter of June 17, 1947; that he received a "big heavy envelope full of bright orange and green pamphlets"; but, in answer to the question whether he received the mimeographed circular relating to weed killers, he answered, "I don't think I ever did", and he also could not recall ever having read the circular. He further testified that on the previous day he had made a search of his files and could not find Reider's letter of June 17, 1947.
After plaintiff's testimony on this subject the court, on motion of counsel for plaintiff, struck the circular relating to Shell weed killers from the evidence and instructed the jury to disregard it.
It is contended by the defendant that plaintiff's letter of June 26, 1947, is an acknowledgment of the receipt of the circular on weed killers. We do not think that it can be fairly so construed. By that letter plaintiff requested thirty sets of literature "on Shell DD" which were to include the "same items that I received last week", that is, with Reider's letter of June 17, 1947. He then specified as the items "one green garden pamphlet, yellow booklet and mimeographed data." It is undisputed that the green garden pamphlet and the yellow booklet related to D-D and not to weed killer. In this context the only reasonable interpretation is that by "mimeographed data" the plaintiff meant "mimeographed reports concerning the use of D-D" referred to and enclosed with Reider's letter and not "a mimeographed letter giving some information" about Shell Weed Killer Nos. 10 and 20, to which Reider's letter referred and which he wrote he also enclosed.
It remains to consider whether the other evidence on the question was sufficient to constitute a prima *122 facie showing of receipt of the Shell weed killer by plaintiff. The testimony of Mr. Reider, while not as explicit as it might have been, nevertheless was evidence of the practice that he pursued in such matters. After stating what he did in the particular instance, he said on cross-examination that he did not watch his stenographer put the circulars in the envelope, and, in answer to the question, "Do you have any personal knowledge that anything was ever enclosed in the letter?" he answered, "I have never known her [the steongrapher] to fail yet." This can mean nothing else than that he had followed his customary practice of instructing the stenographer to enclose material with letters which he dictated to her and which referred to such enclosures, and that she had always followed his instructions. He also testified to the practice about mailing letters. When questioned about that he said, "I don't mail letters", and that the stenographer mailed the letter in question. His testimony was given three and one-half years after the event, and it may be safely assumed that he had no more personal knowledge as to whether the stenographer mailed this letter than he had about the fact of her enclosing the circulars. He must have testified that she mailed the letter because that was one of her duties. We know that she discharged that duty, that the letter was mailed, and that some of the material that she was instructed to enclose was enclosed and was received by the plaintiff. On this record we think it a reasonable inference that the stenographer, in addition to mailing the letter and enclosing the material which related to D-D, discharged the remainder of her duty and enclosed the circular on Shell Weed Killer Nos. 10 and 20. If she did then plaintiff received it.
19. Under our law there is a disputable presumption *123 that "The ordinary course of business has been followed." ORS 41.360 (20).
Professor Wigmore discusses a particular application of this presumption under the caption "Habit or Custom" and has the following to say about the course of the mail and telegram:
*124 Numerous cases are cited in the notes, some supporting and some contrary to the text. The strict exclusionary rule adhered to by some courts is disapproved by the eminent author, who says of such a ruling in Federal Asbestos Co. v. Zimmermann, 171 Wis 594, 177 NW 881:
We will refer to some of the cases which apply what we conceive to be the more useful and enlightened rule. In Dana v. Kemble, 36 Mass 112, the question was whether the defendant, a guest at the Tremont house in Boston, received letters addressed to him there. The letters were left at the bar of the hotel. The bar-keeper testified that it was the invariable usage of the house to deposit all letters left at the bar in an urn kept for that purpose since they were distributed almost every fifteen minutes throughout the day to the rooms of the guest to whom they were directed; that a great number of letters were left there every day for the boarders of the house; and that he had never known any case in which a letter so deposited had not reached the person to whom it was addressed. The court, speaking through Chief Justice Shaw, stated:
In Weinstein v. Miller, 249 Mass 516, 144 NE 387, the court seems to have assumed, though it did not actually decide, that the testimony of the author of a letter that "We have a box on the desk and all letters going today is put there; and my bookkeeper mails them before she goes home" was sufficient proof of mailing. In Prudential Trust Company v. Hayes, 247 Mass 311, 142 NE 73, a witness testified that he dictated a letter, that he signed it in accordance with his invariable practice, and that, while he did not know if it was actually mailed, he gave it to a clerk to mail, she being the "mailing clerk". The court held that copies of the letter in question and of others as to which similar testimony was given were properly received.
The court said:
In Ennis-Baynard Petroleum Co. v. Plainville Mill and Elevator Co., 118 Kan 202, 235 P 119, the testimony of the president and bookkeeper of a corporation that a letter containing a check was handled as the defendant's mail was usually handled, that is, it was put in the general bunch of mail ready to go to the post office, was held to be sufficient. The court said:
These cases, of course, relate to the mailing of letters. The question here is whether a circular consisting of four mimeographed pages and containing information about a product of the Shell Oil Company, which the author of the letter, in the course of his duties as an employee of that company, desired to bring to the attention of a prospective customer, which he said in his dictated letter he had enclosed and which, in accordance with his usual custom he handed to his stenographer and instructed her to enclose, was received by the addressee of the letter, who concededly received the letter and other material therein referred to. The analogy to the cases cited is fairly complete; the inference fully as strong. It is no objection that the evidence of practice was not more explicit and detailed, for a court might almost take judicial notice *127 that it is the common practice in every large commercial house. The evidence that the practice was uniformly followed is substantial. The showing was sufficient to permit admission in evidence of a copy of the circular. The jury should have been permitted to consider it along with the plaintiff's denial that he had received the circular and to determine the fact. Allowance of the plaintiff's motion to strike the evidence from the record constituted reversible error.
The court instructed the jury on implied warranty and the defendant excepted on the following grounds: that implied warranty was not pleaded or proved, the complaint being based on express warranty, and that the product was sold under a trade name and that the instruction ignored that fact.
Defendant assigns error to the giving of the instruction and argues at length that the complaint does not charge breach of an implied warranty. The record discloses that when the pleadings were being made up before another judge than the judge who presided at the trial, the court, on motion of defendant, struck from the complaint the allegation that defendant "breached the warranty of fitness for a particular purpose". This was in addition to the allegation that the defendant breached the express warranty pleaded. The ground of the ruling does not appear. Whatever it may have been, the plaintiff, in compliance with the order, filed an amended complaint which omitted the stricken allegation, thus leaving him with a pleading which, in terms at least, charged defendant with breach of an express warranty only. Thus, the way was left open for a claim that the second amended complaint on which the case was tried fails to show even that plaintiff intended to charge breach of implied warranty. The question whether this complaint alleges *128 sufficient facts to raise the issue of implied warranty is a close one. We need not decide it, however. There is evidence that the plaintiff made known to the defendant's agent the particular purpose for which Shell Weed Killer No. 20 was required, and that he relied on the agent's skill or judgment. Therefore the jury could have found an implied warranty that the product was reasonably fit for such purpose. In view of this state of the record, and, since the case must be retried, the plaintiff should be permitted to amend his complaint so as to conform to the evidence and the requirements of the statute, thus removing any doubts that there may be about the sufficiency of the present pleading.
ORS 75.150 (1) provides:
But defendant urges that, since the product was sold under a trade name the case is controlled by ORS 75.150 (4), which reads:
The contention is foreclosed by Sperry Flour Co. v. De Moss, 141 Or 440, 443, 18 P2d 242, 90 ALR 406, and Campbell v. Corley, 140 Or 462, 474, 475, 3 P2d 776, 13 P2d 610, 14 P2d 455. The rule approved by these decisions is as follows:
See, also, 90 ALR 412; 59 ALR 1186, 1187.
While the orders specified "Shell Weed Killer No. 20", Start's testimony is in substance that he asked the salesman Kjome what he should use as a pre-emergence spray which would kill the weeds before the cultivated crop came up through the ground, and that Kjome recommended Shell Weed Killer No. 20. From this and other evidence in the case the jury could have found that Start relied on the skill and judgment of the seller and not on the trade name. The evidence brings this case within the rule of our decisions above cited. If the facts are as the plaintiff claims, then the law would imply a warranty that, since the defendant knew the purpose for which the plaintiff was buying the weed killer, its use in the manner contemplated would not injure the plaintiff's crop. Otherwise, the weed killer would not be reasonably fit for that purpose. 1 Williston on Sales (Rev ed) § 235.
The ground of the exception to the instruction on implied warranty, that it ignored the fact that the product was sold under a trade name, need be given no further notice than to state that the court did give a proper instruction upon this subject.
The court instructed the jury on agency by estoppel, and defendant excepted and assigns the giving of the instruction as error. That part of the instruction *130 which would have authorized the jury to find that defendant was estopped to deny that Kjome was his agent is abstract because the fact of agency was admitted; the remainder was erroneous. It reads:
20. Estoppel to deny Kjome's authority to give the warranty sued on is not involved, for there is no evidence that defendant accepted the benefits of the contract with knowledge that the representation had been made. Even though there had been such evidence the instruction was faulty because it would have permitted the jury to find that defendant was estopped to deny that the agent had the disputed authority without finding that defendant knew of the representation at the time he accepted the benefits of the contract. This is not the law, since, if the acts of the agents are relied on, "there must also be evidence of the principal's knowledge of and acquiescence in them." 1 Mechem on Agency (2d ed) 513 § 725. On another trial no instruction on agency by estoppel should be given.
21, 22. The final assignment of error challenges a ruling of the court which excluded evidence relating to damages offered by defendant. The court's instructions respecting the measure of damage are not criticized, but it is contended that the evidence excluded by the ruling is material on the question of market value of *131 Regal lily bulblets in the 1948-1949 season. Such market value, it is agreed by the parties, is a factor entering into the measure of damages in a case like this. See Walter v. Echanis, 163 Or 148, 95 P2d 979; Laur v. Walla Walla Irrigation Co., 118 Or 520, 529, 247 P 753; Hall v. Brown, 102 Or 389, 396, 202 P 719; annotation 175 ALR 159. A qualified witness for the plaintiff testified that the market value of Regal lily bulblets in the 1948-1949 season was $15 a thousand, and a qualified witness for the defendant testified that it was $10 to $15 a thousand. The excluded proof, which the defendant proposed to make by his witness on market value, would have tended to impeach the very opinion which the witness himself had given in that regard and would have introduced an element of speculation into the case that could not have been other than a source of confusion to the jury in their deliberations upon the amount of the plaintiff's damages. There was no error in the ruling.
Our former opinion is withdrawn, and the judgment is reversed and the cause remanded for further proceedings in conformity to this opinion. | 9278892d7957042e2263be63cca028d1345a84fbb4e139e10ebde421228c9359 | 1954-07-13T00:00:00Z |
5fd860e3-33fa-44ad-a07d-8b7a693f6b6d | Eberle v. Benedictine Sisters | 235 Or. 496, 385 P.2d 765 | null | oregon | Oregon Supreme Court | Reargued June 4, 1963.
Reversed and remanded October 17, 1963.
*497 Edward L. Clark, Jr., and Cecil H. Quesseth, Salem, argued the cause for appellant. On the briefs were Goodenough, Clark & Marsh, Salem.
Asa L. Lewelling, Salem, argued the cause for respondent Archdiocese of Portland in Oregon. On the brief were Lewelling & Gies, Salem.
Bruce W. Williams, Salem, argued the cause for respondent Benedictine Sisters of Mt. Angel. On the brief were Williams & Skopil and Al J. Laue, Salem.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, GOODWIN, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
DENECKE, J.
This is an action for damages against the owners and operators of a private school. The 13-year-old plaintiff-student received a hand injury when he attempted to hold open a door and his hand slipped off the bar, against a glass panel in the door and broke it. The trial court directed a verdict for the defendants.
The accident occurred in 1960 at the front exit doors of St. Paul's School. The exit consists of a double wooden door which opens outward at the center. The doors contain several glass panels with a panic bar running across the middle part of the door, four and one-half inches below the lowest panel of glass. To open the door the panic bar is pushed downward.
The injury occurred when the plaintiff and his classmates were leaving at the end of the day. Plaintiff *498 was carrying books in his left hand and was following another student through the left door. According to the plaintiff, the student ahead of him had gone out the door and it was starting to swing back shut. Plaintiff testified he reached out with his right hand to push against the panic bar to halt the swing of the door and reopen it. His hand slipped off the bar, hit the glass panel, broke it and cut his hand.
The defendant Archdiocese owns the school. It is operated by the defendant Benedictine Sisters.
The principal issue concerns the following allegation of negligence:
The glass panel that was broken was constructed of "double strength" glass, not plate glass.
It is concluded that the trial court was in error in directing a verdict for the defendants.
1. We conclude that there was testimony from which the jury could find that reasonably prudent school administrators would know that double-strength glass door panels were unsafe.
2. The plaintiff has the status of an invitee or business visitor. Briggs v. John Yeon Co., 168 Or 239, 122 P2d 444; 2 Restatement 897, Torts § 332. As such, the defendants owe him a duty of reasonable care in the construction and maintenance of the building. Gow v. Multnomah Hotel, Inc., 191 Or 45, 49, 224 P2d 552, 228 P2d 791.
2 Restatement 939, Torts § 343, Comment a, states the distinction between the duty owed a licensee and business visitor as follows:
Comment f states:
An architect was called as a witness by plaintiff. He testified he was familiar with school construction in the Willamette Valley since 1952. He stated that the "standard or usage of glass in doors of public buildings, as distinguished from private homes generally in this area" was quarter-inch plate glass. He further testified that quarter-inch plate glass was four times as strong as double-strength glass. He gave the opinion that the minimum safe glass thickness in the St. Paul School doors would be one-quarter-inch plate and this was for safety "from a breakage standpoint."
3. Ordinarily, when there is any testimony that a material is unsafe and not up to the standard used in the community it is a jury question whether or not the persons using such material, as reasonably prudent persons, should know that the material is unsafe. See cases collected in 2 Harper and James, The Law of Torts, 907, § 16.5, and the text at 916.
*500 However, as defendants point out, this general proposition was found inapplicable in Doherty v. Arcade Hotel, 170 Or 374, 134 P2d 118. In that case the plaintiff hotel guest attempted to shut off the water in a wash basin and the porcelain handle broke in the plaintiff's hand, cutting him. There was no testimony of the cause of the breaking of this particular porcelain handle. Plumbers called by the plaintiff testified that porcelain handles were unsafe and had a tendency to break. There was testimony that 60 to 70 per cent of the fixtures in the area had metal, as distinguished from porcelain, handles. The statement of the plumber witness was that porcelain handles were not of "standard make * * * [or] in general use in the plumbers' trade." (at 377) This testimony is very similar to that in the present case and this court in the Doherty case held there was no evidence of negligence on the hotel operator's part.
However, the court referred to facts in the Doherty case which are materially different than those here. At page 380 the court observed: "The testimony of the four plumbing contractors indicates that porcelain handles were in general, if not universal, use until several years ago" and "porcelain handles are [now] in common use." (at 388) "None of the witnesses claimed that porcelain handles which remained in satisfactory condition were replaced with metal handles." (at 381).
At 391 the court summarized: "Hence, the fact that most of the buildings possess metal handles is nothing more than a repetition of the industry's practice as distinguished from the voice of common experience. As we have already pointed out, even the industry had not formed a practice adverse to porcelain handles until a few years before the plaintiff's injury *501 occurred. Further, the mere fact that metal handles had gained wide favor does not necessarily indicate that those who chose them condemned porcelain handles as unsafe. Price, appearance, availability and the desire for something new may have been the impelling motives."
Here, there is specific testimony that the standard for glass in the doors of public buildings is glass at least four times as strong as that used in the door of St. Paul's School and insertion of this glass is common usage. The reason for this was not price, appearance, etc., but safety.
Apart from the testimony about the respective use of porcelain and metal handles there was evidence in the Doherty case that porcelain handles which were apt to break could be identified before they broke. A plumber testified: "If the handle is not checked or cracked, I would say there was no danger to it." (170 Or, supra, at 379) The maids who cleaned the room and used the handle daily observed no defect in it. Neither did the plaintiff who had occupied the room one month and 14 days before the accident. No comparable evidence is present in this case.
The Doherty case is not controlling. There was evidence here that defendants were negligent.
4. The defendant Benedictine Sisters contend that as they are not the owners of the buildings, they are not responsible for the condition of the door panels. The superintendent of schools for the Archdiocese testified that the Benedictine Sisters operated the school for the Archdiocese. He stated that repairs to the physical plant were a joint responsibility of the Archdiocese and the Benedictine Sisters. This evidence makes the responsibility of the Benedictine Sisters a question for the jury.
*502 The other actions of the trial court which plaintiff charges were incorrect are found to be not in error.
Judgment reversed and remanded.
PERRY, J., dissenting.
I am unable to agree with my associates' interpretation of the evidence and the law applicable thereto as set out in the majority opinion.
At the time of the injury plaintiff was 13 years old. He was attending as a student St. Paul's Parochial School located near Silverton, Oregon. The injury occurred when plaintiff, along with other members of his class, was leaving the school building at the end of the school day on March 15, 1960. The school's front exit consisted of a double wooden door which opened outward at the center. The doors contained four glass panels. These panels were four or five inches above the mechanism by which the door was opened. The mechanism by which the door was to be opened was a bar extending across the door, and by exerting pressure in a downward manner, the latch was lifted and the door would open outward. The bar which was hinged so that it always went downward when pressure was applied was described as a panic bar.
Plaintiff testified that he was following another boy who had opened the door; that the door was closing as he reached it; that he reached for the panic bar, which was "more or less" at his "stomach level"; that his hand slipped off of the bar, and in some unexplained way, went upward and through the glass door. There is no evidence that the panic bar was, or ever had been slippery, or that it failed to move downward when pressure was applied.
The majority discuss only the allegation of the complaint that the defendant was negligent in "failing to *503 install plate glass in the front doors being used by pupils." I therefore assume that they agree with me that there is no evidence to support the plaintiff's other allegations of negligence, such as "maintaining a defective panic bar and latch on said door."
I agree that the plaintiff was at the time of his injury an invitee on the premises owned and operated by the defendants.
Comment f of 2 Restatement of Torts, § 343, page 944, to which reference is made by the majority, has no application whatever to this case. Comment f, as shown by the subject and the example, deals with "Appliances used on land" such as "providing a gas stove to be used in an unventilated bathroom." There is no evidence in this case of any appliance being furnished to the plaintiff for his use that might cause injury. The sole question is whether a door with glass panels used as an integral part of the premises constituted a dangerous condition. Section 343 of the Restatement of Torts, chapter 13 at page 938, is as follows:
This is the rule of law followed in this state as applicable to public places which the public is invited to use. Gow v. Multnomah Hotel, Inc., 191 Or 45, 224 P2d 552, 228 P2d 791. Thus, under the facts of this case, and the pertinent law, the question of fact to be answered is whether or not the defendants knew or should have known that the use of double-strength glass in the type of door built and equipped as it was with a panic bar, upon which force was to be exerted downward, constituted an unreasonable risk of injury to the pupils of the school.
The defendants are not insurers of absolute safety, and are not required to guard against the mere possibility of an accident, but only those hazards which a reasonably prudent person in the position of the defendants could reasonably be required to anticipate from the use of the premises in a proper manner by a pupil. Waller v. N.P. Terminal Co. of Oregon, 178 Or 274, 166 P2d 488. That there is no evidence upon this fact is demonstrated by the record in this case. First, there is not an iota of evidence that if the door was used in the manner in which it was intended that it should be used, either in opening, or holding it open, that the glass, whatever its nature, constituted any hazard to any user of the door. Therefore, before it can be said that the use of glass of any nature constituted negligence, it must first be shown that the manner in which the door was used was known, or should have been known, to the defendants, as reasonable operators of the school, so that the using of an inferior glass under these circumstances would constitute *505 a hazard to those using the door in such a manner.
There is absolutely no evidence that this door, by custom, or occasional usage, or even once, was opened, or held open, or forced back as it tended to close, by the placing of hands on the glass panels, so as to charge these defendants with knowledge that the use of inferior glass panels might constitute a hazard to school children in thus using the door.
The plaintiff testified that he was attempting to open further the closing door in the proper manner, by exerting force on the panel bar, so there is no issue of imputed knowledge of children's proclivities to depart from adult standards of conduct by applying force to the glass. There is no evidence that the door was so constructed that in attempting to open it, or hold it open, or push it further open, by proper use of the panic bar, there was any danger of coming into contact with the glass panel. It would certainly be necessary to show danger in using the panic bar, with reference to the glass panels as located, or a defective bar, to charge the defendants as reasonably prudent persons with being negligent in using an inferior glass.
The issue of defendants' negligence then must rest upon the proposition, either that the panic bar was so located on the door that the glass panels presented a source of danger to those using the panic bar, or the panic bar was so defective that instead of going downward it remained stationary, and by some means the hand might possibly slip upward. There is no evidence in the record to establish either of these facts. First, the record establishes the panic bar was four or five inches below any glass panels, and second, as previously stated, the plaintiff testified that the panic bar was waist-high; that if pushed downward, the *506 force then exerted by the hand at that level from the shoulder is downward to a position on the door where there is no glass. This is in accordance with the established law of physics, and no contrary presumption can be engaged in. Therefore, before the nature of the glass could be considered as a competent factor and not just a condition, it was first necessary to establish some fact upon which a jury could find that in the use of the door, a reasonably prudent person would know, or should know, there was danger of contact with the glass in the opening, holding open, or pushing further open, the door by use of the panic bar. However, all of the evidence relied upon by the majority, if it could be considered, this evidence in my opinion goes only to the fact that it is safer, in case of some negligent act, to use plate glass than double-strength glass in school doors.
In my opinion the majority in reversing this case have crossed the bridge before it was built. I therefore dissent.
Mr. Chief Justice McALLISTER and Mr. Justice ROSSMAN join in this dissent. | 37389add1f7e307db8c476195e6c6fcf0772f5b3b4336537bca95c5c5e9bfd70 | 1963-10-17T00:00:00Z |
f781ef9b-2f9c-45f0-a707-425ebaa95035 | State v. Cloran | 233 Or. 400, 378 P.2d 961 | null | oregon | Oregon Supreme Court | Motion to dismiss appeal submitted July 26, 1963.
Denied September 26, 1963.
Reversed and remanded January 23, 1963.
Petition for rehearing denied February 20, 1963.
Harold Banta, Baker, for the motion.
Jesse R. Himmelsbach, Jr., District Attorney for Baker County, Baker, contra.
Before McALLISTER, Chief Justice, and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, Justices.
MOTION TO DISMISS APPEAL DENIED.
*401 ROSSMAN, J.
This cause is before us upon a motion of the defendant (respondent) for an order dismissing the appeal undertaken by the state (appellant). The appeal challenges an order entered April 26, 1962, by the circuit court for Baker County which arrested the entry of judgment in this case. The latter is based upon an indictment, returned by the grand jury of Baker County, which charged the defendant with the crime of perjury. Before the defendant moved to arrest judgment a jury had returned a verdict of guilty. The defendant, in support of his motion to dismiss the state's appeal, argues (1) an order in arrest of judgment, as authorized by ORS 136.810 to 136.840, is intermediate and, therefore, not final as that term is defined in State v. Brown, 5 Or 119, and (2) since the court in this case upon arresting judgment did not order the defendant's discharge from custody but directed the sheriff to retain him to abide a new indictment in the event one was returned, those circumstances indicate further that the order which the state wishes to challenge is not final.
March 10, 1959, after a trial in the circuit court for Baker County upon an indictment, which the state claims charged the defendant in proper form with the felony of perjury, the jury returned a verdict of guilty. Immediately following the filing of the verdict a jury, acting under our Habitual Criminal statute, returned another verdict that found the defendant was the individual who had been adjudged guilty on previous occasions of three other crimes as claimed by the state. One of these other purported crimes, according to the state, was a felony which was committed in Oregon. The other two were committed, so the state claims, in other jurisdictions. The state contends that *402 both of them were felonies within the purview of our laws.
April 28, 1959, the circuit court entered judgment which adjudged the defendant guilty of the crime of perjury and sentenced him to life imprisonment. June 15, 1959, the defendant gave notice of appeal. In that manner there was begun a series of legal stratagems which included two appeals to this court (apart from the one at bar), a proceeding for a writ of habeas corpus, and a proceeding for post-conviction relief.
In the post-conviction proceeding the circuit court for Marion County entered a judgment order on October 13, 1961, which recited and ruled:
The judgment order vacated the sentence of life imprisonment as void and remanded Cloran (the defendant in the case at bar) to Baker County "for further proceedings in accordance with this judgment."
March 29, 1962, Cloran filed the motion in arrest of judgment which we have mentioned and which underlies the cause at bar. It stated, in the words which we now quote, the issue which it submitted:
April 26, 1962, the Circuit Court for Baker County sustained the motion in arrest of judgment by an order which declared:
The defendant was not, as we have noted, discharged from custody, but was held, as permitted by ORS 136.830, to await a new indictment if one was returned.
*404 The district attorney did not resubmit the case to the grand jury but appealed. The defendant contends that an appeal cannot be taken from an order which arrests the entry of judgment.
1. ORS 138.060 provides:
It will be noticed that if the appeal is taken from the disposition of the cause which the court makes in sustaining a demurrer to the indictment the state must see to it that judgment is entered before notice of appeal is given. An order which sustains a demurrer is not final and cannot support an appeal: State v. Davis, 207 Or 525, 296 P2d 240; State v. Berry and Walker, 204 Or 69, 267 P2d 993, 267 P2d 995, 282 P2d 344, 282 P2d 347; and State v. Brown, 5 Or 119.
Although ORS 138.060 restricts appeals by the state to judgments which were entered after demurrers were sustained, it uses the word "order" when it designates the type of ruling, concerning arrest of judgment, that the state may challenge on appeal.
Before the revision into Oregon Revised Statutes the provision of our laws which is now ORS 138.060 was § 26-1305 OCLA and read as follows:
*405 2. We quote the following from 24 CJS, Criminal Law § 1553, page 378.
The defendant does not claim that the court had no power to make the order which now detains him. We think that it is clear that the order which the notice of appeal seeks to challenge does not lack finality merely because it did not order the defendant's release.
The question remains as to whether the order which the state seeks to attack lacks finality merely because ORS 138.060 terms it an "order." We believe that the "order" is in the nature of a judgment.
Commonwealth, Appellant v. Pflaum, 48 Pa. Superior Ct. 370, reasoned:
Pillsbury Etc. Co. v. Walsh, 60 Ind App 76, in ruling adversely to a respondent who contended that no appeal will lie from an order that arrests judgment, declared:
Daugherty v. Midland Steel Co., 23 Ind App 78, in dealing with the same problem, said:
See to the same effect The State v. Foster, 2 Mo 135, and Benjamin v. Armstrong, 2 Pa 391, in which it is stated:
See also People v. Lauman, 210 P 421.
We take the following from 4 CJS, Appeal and Error, § 123, page 393:
Johnson et al v. Fernandez, 79 Fla 508, and Hershey Chocolate Co. v. Yates, 196 Ala 657, are the only decisions which have come to our attention that held orders in arrest of judgment were not final. We think that the circumstances of each of those cases were special. They are not counterparts of the case before us.
It is our belief that the challenged order was final and in the nature of a judgment. It returned the case to the status which it possessed before the trial began and expunged the verdict.
The motion to dismiss the state's appeal is denied.
*408 Jesse R. Himmelsbach, Jr., District Attorney, Baker, argued the cause and submitted a brief for appellant.
Harold Banta, Baker, argued the cause and submitted a brief for respondent.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, O'CONNELL, GOODWIN, LUSK and DENECKE, Justices.
REVERSED AND REMANDED.
McALLISTER, C.J.
This is a criminal case in which a jury in Baker county found defendant guilty of the crime of perjury, for which, as an habitual criminal, he was given the enhanced penalty of life imprisonment. In a post-conviction proceeding in Marion county the circuit court found that the enhanced penalty was illegal and the defendant was returned to Baker county for the imposition of a lawful sentence. Upon his return to Baker county the defendant filed a motion in arrest of judgment which was allowed. The state appealed from the order arresting judgment. The defendant moved to dismiss this appeal on the ground that the *409 order in arrest of judgment was not an appealable order. The motion was denied in an opinion written by Mr. Justice ROSSMAN. See State v. Cloran, 233 Or 400, 374 P2d 748 (1962).
On December 19, 1958 the defendant was indicted in Baker county for the crime of perjury. Although defendant was represented by counsel, he did not demur or otherwise object to the form of the indictment. On March 10, 1959, after trial, a jury found defendant guilty of the crime charged. Before defendant was sentenced the district attorney for Baker county filed an information, pursuant to the statutes pertaining to habitual criminals, accusing the defendant of three prior felony convictions. A trial was had on the habitual criminal information and a jury found that defendant had been convicted previously of the three felonies described in the information. Because of his status as an habitual criminal a life sentence was imposed on defendant for the crime of perjury.
Defendant filed a notice of appeal from the life sentence of April 28, 1959, but did not prosecute the appeal and it was dismissed by this court on July 26, 1960.
While his appeal was still pending in this court defendant, who was then confined in the penitentiary in Marion county, on March 9, 1960 filed in the circuit court for that county a petition for a writ of habeas corpus. The habeas corpus proceeding was still pending on May 26, 1959 when the Post-Conviction Hearing Act (Ch 636, Oregon Laws 1959) became effective, and was converted into a proceeding under the new act pursuant to what is now ORS 138.510(4). In the post-conviction proceeding the circuit court for Marion county found that one of defendant's three prior convictions *410 was for the crime of theft from interstate commerce and should not have been considered as a prior conviction within the meaning of the habitual criminal statutes in effect at the time of defendant's trial and sentence. Based on such finding the court vacated defendant's life sentence and remanded him to Baker county for further proceedings.
After his return to Baker county defendant filed a motion in arrest of judgment on the ground that the facts stated in the perjury indictment did not constitute a crime. On April 26, 1962 the court allowed the motion by an order which read in part as follows:
The defendant was recommitted to custody pursuant to ORS 136.830 to answer to a new indictment if one was found. The state did not resubmit the case to the grand jury but appealed to this court.
The question now before us is whether the setting aside in a post-conviction proceeding of an excessive sentence and the remanding of the prisoner for the imposition of a lawful sentence authorizes the court to which the prisoner is remanded to re-examine the proceedings prior to verdict, or whether the authority *411 of said court is limited only to the imposition of a lawful sentence.
A motion in arrest of judgment is authorized by ORS 136.810 for "either or both of the causes specified in subsections (1) and (4) of ORS 135.630, and not otherwise." The cause specified in subsection (4) of ORS 135.630 is that the facts stated in the indictment do not constitute a crime. That is the ground relied on by the defendant.
The statute permitting the filing of a motion in arrest of judgment provides that the motion must be filed "within the time allowed to file a motion for a new trial, and both such motions may be made together and heard and decided at once or separately, as the court directs." A motion for a new trial in a criminal action must be filed "within 10 days after the filing of the judgment." ORS 136.850 and ORS 17.615.
It is obvious from the foregoing that the motion in arrest of judgment in this case should have been filed within 10 days after the entry of the judgment on April 28, 1959. No such motion was filed, nor was the sufficiency of the indictment challenged on the appeal which was abandoned after a notice of appeal was filed.
3. To permit the filing of a motion in arrest of judgment when the case was remanded for the imposition of a lawful sentence would in effect give the defendant a delayed appeal. If defendant can file a motion in arrest of judgment, he can also file a motion for a new trial on the ground that error was committed in the admission of evidence or in the instructions to the jury. Such a result would be repugnant to both *412 the spirit and letter of our post-conviction procedure act, which is designed not to give a delayed appeal but to provide a remedy for any denial of constitutional rights or to correct an excessive sentence.
4. We think our decisions in Landreth v. Gladden, 213 Or 205, 324 P2d 475 (1958), Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955), and Gordon Sayre Little v. Gladden, 202 Or 16, 273 P2d 443 (1954) are highly persuasive, if not controlling. Each of those cases was a habeas corpus proceeding in which it was found that an excessive or defective sentence had been imposed. In each case the prisoner was remanded to the lower court in which he had been convicted for the imposition of a lawful sentence. In each case it was held that the invalidity of the sentence did not impair the validity of the proceedings prior to sentence.
We hold that the authority of the circuit court for Baker county was limited upon the remand to the imposition of a lawful sentence upon defendant. The order in arrest of judgment is reversed and the case remanded to the circuit court for Baker county with instructions to impose upon defendant a lawful sentence for the crime of perjury of which he was found guilty.
*413 Harold Banta, Baker, for the petitioner.
PETITION DENIED.
McALLISTER, C.J.
The defendant has filed a petition for rehearing, complaining because we did not decide whether the indictment states facts sufficient to constitute a crime, which defendant described as "the fundamental issue in this case." Defendant fails to grasp the effect of our opinion. We thought we had made it clear that whether the facts stated in the indictment constituted a crime is no longer open to inquiry in this case. The sufficiency of the facts stated in the indictment could have been raised by demurrer, by motion in arrest of judgment, or by appeal. The defendant did not demur to the indictment, did not file a motion in arrest of judgment within ten days after the entry of judgment,[1] and failed to perfect an appeal. Defendant made no direct attack upon the judgment of conviction.
*414 5. The only attack made by defendant upon his judgment of conviction was in a collateral proceeding initiated by a petition for a writ of habeas corpus and converted into a proceeding under the Post-Conviction Hearing Act (ch 636 Oregon Laws 1959). The law is well settled that the failure of the indictment to allege facts sufficient to constitute a crime cannot be raised in a habeas corpus proceeding. Smallman v. Gladden, 206 Or 262, 273, 291 P2d 749 (1955); Hills v. Pierce, 113 Or 386, 396, 231 P 652 (1924); Knewel v. Egan, 268 US 442, 45 S Ct 522, 69 L Ed 1036 (1925); Dimmick v. Tompkins, 194 US 540, 24 S Ct 780, 48 L Ed 1110 (1904); Roth v. United States, 295 F2d 364 (8th Cir 1961); 25 Am Jur, Habeas Corpus 175 § 43. In Hills v. Pierce, supra, at 113 Or 396, the court said:
The above rule is applicable to a proceeding under our Post-Conviction Hearing Act, which, like habeas corpus, is a collateral attack on the judgment. See Brooks v. Gladden, 226 Or 191, 358 P2d 1055 (1961), cert. denied 366 US 974, 81 S Ct 1942, 6 L Ed2d 1263; State v. D'Onofrio, 221 Md 20, 155 A2d 643 (1959); Collins and Neil, The Oregon Postconviction-Hearing Act, 39 Ore L Rev 337, 363. The rule above referred to has been applied to a post-conviction proceeding under the Maryland act. Wilson v. Warden of the Maryland Penitentiary, 222 Md 580, 158 A2d 103 (1960), cert. denied 364 US 841, 81 S Ct 79, 5 L Ed2d *415 65. Nevertheless, defendant in his post-conviction proceeding did challenge the sufficiency of the indictment, and the circuit court for Marion county found against him. Whether that judgment constitutes an additional bar to any further challenge of the indictment we need not consider at this time.
The action of the circuit court for Marion county in vacating the life sentence imposed on defendant did not affect the status of defendant's case, except to authorize the imposition of a lawful sentence. The vacation of the sentence did not authorize the circuit court for Baker county to re-examine the sufficiency of the facts stated in the indictment, or any proceedings prior to verdict. The authority of the circuit court for Baker county is limited upon remand to the imposition of a lawful sentence upon defendant.
The petition for rehearing is denied.
[1] April 28, 1959. | 5e7efe6c96b5df0aeb7edc99f74aba89917cd96fe62bbb81e13f3240cd44dc75 | 1963-07-26T00:00:00Z |
f111ca85-e230-4c09-b80f-82ed8d640b80 | Jarvy v. Mowrey | 235 Or. 579, 385 P.2d 336 | null | oregon | Oregon Supreme Court | Affirmed September 25, 1963.
Petition for rehearing denied November 5, 1963.
*580 Joseph D. St. Martin, Portland, argued the cause for appellant. With him on the briefs was G.A. Heikkila, Portland.
George G. Van Natta, St. Helens, argued the cause for respondent. With him on the brief was John L. Foote, St. Helens.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
GOODWIN, J.
This is an action for work and labor. Plaintiff received a verdict for $7,000 which was set aside. He appeals from the judgment entered for the defendant n.o.v.
The plaintiff, Jarvy, is the personal representative of Daisy Randall, deceased. Mowrey is the personal representative of Guy Lillich, deceased. Lillich and Randall were brother and sister. It has been established in a prior case that Randall, without any express promise that she be paid, performed valuable services for Lillich, and that Lillich died without paying for said services. Lillich did transfer certain jointly-held bank accounts to Randall. See Mowrey v. Jarvy, 228 *581 Or 96, 363 P2d 733 (1961). There is no serious dispute about the relevant facts. The issue is whether the former decree between the same parties in their same representative capacities is a bar to the present action upon an implied contract.
The first case necessarily decided that the bank account Lillich transferred to Randall was not transferred as a payment to Randall. If the trial court in the first case had determined that the transfer was intended to be a payment to Randall for services rendered, the case would have gone the other way. An amended answer had alleged as an affirmative defense that the money in the hands of Daisy Randall at her death had been paid to her by Guy Lillich in satisfaction of an indebtedness for services rendered. The evidence in the first case proved that valuable services had been rendered, but there was a failure of proof that the services had been rendered in expectation of payment. There was also a failure of proof that the parties had treated the transfer as a payment. The trial court found that the money in question belonged to Guy Lillich and impressed a trust upon it. While the theory of a payment of a pre-existing debt was not urged on appeal, the issue was available in the record and could have been urged in this court. In affirming the trial court's decree (with modifications not here material), this court affirmed a decree that could not have been entered if the present plaintiff had established his contention that the money in question was owed to his decedent or had been paid in satisfaction of a debt. If such had been the case, there would have been no trust impressed upon the funds in the hands of Randall's administrator for the benefit of Lillich's estate.
1. In determining what is res judicata, this court *582 has characterized the vital element as "the same claim, demand, and cause of action." Wagner v. Savage, as Adm'r, 195 Or 128, 147, 244 P2d 161 (1952). See, e.g., Morgan v. Portland Traction Co., 222 Or 614, 634, 331 P2d 344 (1958). If the two cases involve the same "claim, demand and cause of action," and the other elements of res judicata are present, then, according to the Wagner decision, the judgment in the first suit not only bars all matters actually determined therein, but also every other matter which might have been litigated and decided as incident to or essentially connected therewith, either as a claim or a defense. See also ORS 43.130, 43.160.
The initial problem, then, is to determine whether the same "cause of action" is involved in the two Jarvy-Mowrey cases. The identity of the parties is conceded. It was ultimately decided by this court in the first Jarvy case that, although the pleadings were unclear (see Mowrey v. Jarvy, 228 Or at 99), the suit was one in equity to impose a trust upon certain funds. In his amended answer in the first case Jarvy alleged:
In the first trial, as noted, the foregoing allegation was not proved. The parties treated the issue as properly in the case, however, and put on substantial testimony in regard to it.
*583 2, 3. Granting the force of the rule that the burden of proving res judicata is upon the asserter, the principle of res judicata was formulated in the interest of putting an end to litigation, and should be construed so as to carry out its function in a proper case. See Safety Seal Corporation v. Bond Electric Corporation, 3 F Supp 507 (D Del 1933), and Bruszewski v. United States, 181 F2d 419 (3d Cir), cert. den. 340 US 865, 71 S Ct 87, 95 L Ed 632 (1950). Further the philosophy underlying modern code pleading is that the party having a cause of action or a defense should plead all the pertinent facts in one case and permit the court, in one trial, to dispose of all contentions that can be maintained. See Note, Developments in the Law Res Judicata, 65 Harv L Rev 820, 826, 827 (1956); Note, Problems of Res Judicata Created by Expanding "Cause of Action" under Code Pleading, 104 U Pa L Rev 955, 962 (1956); and Note, 1955 U Ill L F 627, 628.
4. The principle of res judicata can apply to matters pleaded originally as a defense when used subsequently as a basis for affirmative relief. See, e.g., Mitchell v. Federal Intermediate Credit Bank, 165 SC 457, 164 SE 136, 83 ALR 629 (1932); Restatement, Judgments § 58 (1942). One "* * * cannot use the same defence, first as a shield, then as a sword." O'Connor v. Varney, 76 Mass 231 (10 Gray) (1857).
5. Likewise, with reference to matters in defense, it has been said:
The difficulty in the present case lies in determining the nature of the defensive claim asserted by Jarvy in the first case. If the defense found in the amended answer is construed as one alleging only an express contract, as the present plaintiff now apparently contends, then a later action upon an implied contract would not necessarily be barred. See, e.g., Pillsbury v. Early, 324 Ill 562, 155 NE 475 (1927); Smith v. Kirkpatrick, 305 NY 66, 111 NE2d 209 (1953); Roberts v. Lee, 72 Ohio App 235, 51 NE2d 108 (1942); 2 Freeman, Judgments 1552, § 736 (5th ed 1925); Schopflocher, What Is a Single Cause of Action for the Purpose of the Doctrine of Res Judicata?, 21 Or L Rev 319, 338 (1942). But see Golden v. Mascari, 63 Ohio App 139, 25 NE2d 462 (1939); Note, Developments in the Law Res Judicata, 65 Harv L Rev, supra at 826. The cases generally note that the evidence necessary to establish an express contract may be different from that needed to prove a right to recover in quantum meruit. See, e.g., Buddress v. Schafer, 12 Wash 310, 312, 41 P 43 (1895). Accordingly, the failure to prove an express contract will not always bar an action upon an implied contract where no court has ever passed upon the facts necessary to prove the existence of the implied obligation. Smith v. Kirkpatrick, supra. The question remains whether a final judgment rejecting a defense that there was a payment of "an indebtedness," not alleged to arise out of either an express or an implied contract, bars relitigation of the ultimate right of the parties in this case to the sum in controversy.
*585 6. Here the ambiguity was the work of the party (Randall's representative), who seeks after one defeat to rehabilitate his case upon a different theory. The situation is analogous to that in Bryan v. Jones, 138 Ga 719, 75 SE 1117 (1912). Bryan sued for the reasonable value of services he had performed for a decedent. In its defense, the decedent's estate alleged that the claim was res judicata because, when it had earlier sued Bryan to recover certain assets of the estate in Bryan's hands, Bryan had asserted that the property had been turned over to him in payment for the same services, and also that he had received the property as a gift. In the later case, after having failed to prevail in the first case on either theory of his defense, Bryan contended that the trial jury in the first case might not have passed upon the issue of payment because the pleading was ambiguous. The reviewing court made short work of the argument, pointing out that if there had been an ambiguity in the pleading in the first case it was of Bryan's own creation and could not be relied upon to get him back into court on another theory in a later case.
In the first litigation between Jarvy and Mowrey, the trial court settled accounts, as it were, concerning the right to the money then in controversy. The decree, as modified in this court, decided that the money in the hands of Randall at the time of her death reverted to Lillich as an incident of survivorship, and then allowed Randall's administrator to deduct Randall's last illness and funeral expenses. In so deciding the case, the trial court necessarily rejected the theory that Randall was entitled to keep the money as a payment of a debt, express or implied.
Jarvy argues now that the only question tendered by his affirmative defense was the alleged payment *586 of an indebtedness, and not the validity of the indebtedness itself. It has been held that a defendant who pleads payment under a contract in, for example, an action for money had and received has the burden of showing "the nature and extent of that debt." Blake v. Corcoran, 211 Mass 406, 407, 97 NE 1002 (1912); Smith v. Wigton, 35 Neb 460, 53 NW 374 (1892); 58 CJS 944, Money Received § 31. The few authorities cited in support of the contrary rule in Washington v. Beselin, 141 Neb 638, 4 NW2d 753 (1942), are not in point, since they have to do with the affirmative defense of payment when the alleged debtor claims to have paid his creditor. Where, as here, the suit is to impress a trust on funds, the pleader who admits receiving the funds of another has the burden of proving the existence and the validity of the alleged contract upon which he bases his right to retain the money. Jarvy would have prevailed in the first litigation if he could have proved that there was a pre-existing indebtedness and that it motivated the transfer of funds. Indeed, the transcript of the first trial reveals that the court and the parties were aware of the issue, since much of the evidence was relevant solely to prove that Jarvy's decedent had earned the money from Mowrey's decedent.
The evidence produced in the two cases drew the trial court's attention to the factual raw material upon which first the claim of receipt of payment of a debt and now the claim that there was an implied contract must equally be based. The only element that is significantly different between the two cases is the pleader's theory of what those facts meant. It is true that upon the second trial there was some circumstantial evidence that had been omitted in the first case, but that fact does not essentially change the *587 situation. Upon this state of affairs we hold that the first litigation disposed of all the claims that were made or could have been made by Randall's estate against the Lillich estate, and that the case at bar should have been disposed of upon a directed verdict. Accordingly, the judgment entered n.o.v. is affirmed. | 9a74600b6908ff8f7d567003ffaf095b2b4b92af8ae2a08b93231ee10c133e1d | 1963-09-25T00:00:00Z |
28ca5ff7-b369-4d23-9b08-83dfd240c213 | McClendon v. Kenin | 235 Or. 588, 385 P.2d 615 | null | oregon | Oregon Supreme Court | Affirmed October 9, 1963.
Petition for rehearing denied November 5, 1963.
*589 Reuben Lenske, Portland, argued the cause and filed a brief for appellant.
Donald S. Richardson, Portland, argued the cause for respondents. On the brief were Green, Richardson, Green & Griswold, Portland.
Before McALLISTER, Chief Justice, and O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
AFFIRMED.
DENECKE, J.
The plaintiff filed a complaint alleging that the defendant labor organizations wrongfully refused to reinstate him as a member and prayed for damages and an injunction.
A bylaw of the defendant labor organization provides that a member shall be suspended from membership if such member owes a debt to another and fails to pay such debt or make satisfactory arrangements to pay it. Plaintiff alleged he had owed wages to other union members which he had not paid, but that plaintiff had been relieved from such debts by a discharge in bankruptcy. Defendants' demurrer was sustained.
*590 We understand plaintiff to contend that the bankruptcy discharged plaintiff's debts to his fellow union members; therefore, the union could take no action to attempt to coerce payment of these former wage claims. This contention is not meritorious.
1. A discharge in bankruptcy is not payment of a debt.
It has been held that a discharge in bankruptcy of a debt for overdue rent does not prevent the landlord from maintaining a summary proceeding for eviction because of nonpayment of such rent. Carter v. Sutton, 147 Ga 496, 94 SE 760 (1917).
The modern facet of the problem has involved state financial responsibility laws. These laws are directed at drivers who have unpaid judgments against them by reason of automobile accidents. Such statutes generally provide that the driver's license of a judgment debtor shall be suspended while the judgment is unpaid or suspended for a certain period.
In Reitz v. Mealey, 34 F Supp 532 (ND NY 1940), a three-judge district court upheld the validity of this part of the New York Financial Responsibility Law. Judge Learned Hand, in the majority opinion, wrote:
The New York statute involved in Reitz v. Mealey, supra, provided that if the judgment was not paid the license could be suspended for three years. A similar law in Utah provided that the license would be permanently cancelled. It also stated that the suspension or cancellation would only be at the judgment creditor's request and that the suspension could be lifted at the creditor's request. In Kesler v. Dept. of Public Safety, 369 US 153, 82 S Ct 807, 7 L ed2d 641 (1962), a majority of the court held the Utah act valid.
2-4. Kesler upheld the Utah law as an exercise of state police power. We have here, instead of an exercise of state police power, an exercise of the right of private persons to contract and associate. Union bylaws are usually considered to be a contract between the members and the labor organization. Crocker v. Weil, 227 Or 260, 281, 285, 361 P2d 1014 (1961). The freedom to contract and associate is also a constitutionaly derived power. National Ass'n. for A. of C.P. v. Alabama, 357 US 449, 78 S Ct 1163, 2 L ed2d 1488 (1958). Without attempting to compare the extent of these two constitutional powers, it would seem that if state financial responsibility laws do not "intrude[d] into the bankruptcy domain or subvert[ed] the purpose of bankruptcy law" (Kesler, supra, 82 S Ct at 819), then a private contract of association suspending *592 membership for nonpayment of debts to fellow members would not so intrude or subvert. We so hold.
Plaintiff alleged that the bylaw in controversy is contrary to public policy.
5. We hold that a labor organization's bylaw providing that a member shall be suspended for nonpayment of a debt to a fellow member is not void as contrary to public policy. The law in this state and most others is as stated in Allen v. Southern Pac. Co., 166 Or 290, 294, 110 P2d 933 (1941): "All persons, upon becoming members of such an organization [labor organization], are deemed to have agreed to be bound by its laws and general rules except where they involve a surrender of a personal or constitutional right or contravene the public law or public policy."
This being heard on demurrer, we accept plaintiff's allegation that defendant labor organizations have a virtual monopoly over musicians and without membership therein work is almost impossible. This fact may cause courts to scrutinize more closely the qualifications for admission and retention of membership, but it does not lead to the conclusion that all restrictions on membership are contrary to public policy.
6, 7. Procuring the payment of debts to members, particularly debts for wages, is a most legitimate objective of a labor organization. The state of Oregon has singled out debts for wages for special legislation. These laws provide for penalties, attorney fees and collection of unpaid wages by the state. ORS 652.110 et seq. There is no reason why a labor organization should not also single out this problem and attempt to solve it by means peculiarly available to a union.
There appear to be no judicial decisions passing upon a union regulation like the one here. Ornati, *593 Union Discipline, Minority Rights and Public Policy, 5 Labor L J, 471, 477 (1954), contains some pertinent statements about the specific and general problem:
The judgment is affirmed. | 2f42c9f3e292c5a3e07b36d6428847e0f9b81d74a6ff129c401be4dd22567fa0 | 1963-10-09T00:00:00Z |
d75ef213-bae3-430b-957c-4c82ff58280a | State v. Hunter | 235 Or. 308, 384 P.2d 983 | null | oregon | Oregon Supreme Court | Affirmed September 5, 1963.
Donald A. Dole, and Harrison R. Winston, Roseburg, argued the cause and filed a brief for appellant.
Verden L. Hockett, Jr., Deputy District Attorney, Roseburg, argued the cause for respondent. With him *309 on the brief was Avery W. Thompson, District Attorney.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
LUSK, J.
The defendant, Bill Ernest Hunter, was convicted of the crime of armed robbery and has appealed, assigning as error the court's denial of his motion for a directed verdict of not guilty based on the alleged insufficiency of the evidence to establish the charge.
In the early morning of May 24, 1962, Clarence Edgar Lemmon, the attendant at a gasoline service station known as Hilltop Flying A, located about two miles south of Roseburg, Douglas County, Oregon, was confronted by a man armed with a revolver and forced to lie on the floor of the station, bound and tied, while the robber removed and made off with the money in the cash register. Although the man's face was covered with a portion of a woman's stocking, Lemmon was able to recognize him as an acquaintance named Mickey Gray. There is evidence from which the jury could have found that two persons participated in the crime, for, while lying on the floor, Lemmon heard the noise of the opening of drawers and, at the same time, the sound of someone operating a cigarette machine located several feet away from the drawers, and he managed to release himself from his bonds and saw Gray and another man in a car driving away from the station immediately after the robbery was completed. He was unable, however, to identify Gray's accomplice.
The service station was operated on daylight time and Lemmon testified that the robbery occurred at *310 4 a.m., daylight time. As the time element is of some importance and officers of the State Police who investigated the crime went by standard time, it will avoid confusion to state the time of the robbery as 3 a.m., standard time, and when time is hereinafter referred to it will be understood as meaning standard time.
After the robbers had departed Lemmon hurried to the home of Harvey Norman Berna, owner of the service station, told him of the occurrence and Berna reported it by phone to the Oregon State Police. Richard Bouey, sergeant of State Police, stated that he received the call and arrived at the gas station at 4:25 a.m. Later in the morning he interviewed Gray and the defendant Hunter.
Officer Richard Kent Scott of the State Police was on patrol in the early morning hours of May twenty-fourth. He received a radio call about the robbery at approximately 4 a.m. He was told to look for a man named Mickey Gray and was given a description of the car in which the robbers were making their getaway. He stationed his car "in a pullout" along the highway where he anticipated he might intercept them. He remained there until about 4:15 a.m., when, concluding that they had taken another route, he proceeded north to the area of Dillard, which is about six miles south of the Flying A gas station. In Dillard he came upon the defendant and Gray, who were walking north along the highway. He stopped them and questioned them. Gray gave the name of Billy Simmons. The defendant told him his name was Billy Hunter. This was at approximately 4:25 a.m. He asked them "from where they were coming" and they answered "they were coming back from the mill." This reference was to the mill of the Roseburg *311 Lumber Company, which is located on the same highway about a mile south of the point where Officer Scott questioned the two men and which appears to have been operating on a three shift basis, 24 hours a day. Officer Scott then proceeded on his way.
Lemmon testified that he had counted the money in the cash register prior to the robbery and that it consisted of currency as follows: 39 ones, 16 fives, 8 tens, and 1 twenty, totaling $219. There were in addition some quarters. All the currency was taken by the robbers.
An abandoned car, belonging to Mack Morgan, an employee of the Roseburg Lumber Company, which was used by Gray and his accomplice in perpetrating the robbery, was discovered by a state police officer on the morning of May 24, 1962, on a side road about eight miles south of the Flying A gas station and 1.2 miles southwest of Dillard. The car was stolen while Morgan was at work sometime after 10:30 p.m., of the night in question. In the glove compartment of the car were three $1 bills and on the floorboard the upper part of a woman's stocking.
Gray and Hunter were placed under arrest on May twenty-fourth. They had on their persons at the time money described as follows:
A few days later there were found hidden near the roadside in the vicinity of the point where Officer Scott had accosted Hunter and Gray a revolver wrapped in rubber gloves and $150 in currency of the *312 following denominations: 1 twenty, 6 tens, 8 fives, and 30 ones.
Thus, of the currency stolen, a sum equal to all but $20 was recovered. Sixteen five dollar bills were stolen and four five dollar bills were never recovered.
About 7:30 on the morning of May 24, Sergeant Bouey interviewed the defendant and Gray in the Suksdorff Apartments in the town of Winston, which is located a short distance north of Dillard. Bouey testified:
1, 2. We think that this evidence is sufficient to support the jury's verdict. Two persons robbed the Flying A gas station at three o'clock in the morning. An hour and a half later the defendant, in the company of Mickey Gray, identified as one of the robbers, was walking in a northerly direction along a highway some six or seven miles south of the gas station. The stolen automobile used by the robbers had then been abandoned *313 on a side road a little more than a mile south and west of where the men were stopped and questioned by Officer Scott. The revolver which Mickey Gray carried when he held up the service station attendant and $150 of the loot were found within a few hundred feet of where the men then were. Mickey Gray gave the officer a false name. The men told him they were "coming back from the mill." They were, it is true, coming from the direction of the mill, but also from the direction of the abandoned car. The car, it will be recalled, had been parked at the mill when it was stolen. Both men when placed under arrest later in the day had money in their possession which could reasonably be found to be part of the stolen money. It is true that the bills were not identified as the particular bills taken from the cash register. That would be rarely possible in any case where the owner had not recorded the numbers of the bills, but there are numerous cases in which precise identification of money is not required. As the court said in Commonwealth v. O'Neil, 169 Mass 394, 397, 48 NE 134: "The bills were not identified by ear-marks, but they corresponded in denomination, and such a likeness is often proper to be considered in connection with other incriminating evidence." See also, Commonwealth v. Williams, 171 Mass 461, 464, 50 NE 1035; Leonard v. State, 115 Ala 80, 83, 22 S 564; Allen v. State, 26 Ala App 218, 220, 155 S 894; People v. Sullivan, 144 Cal 471, 472, 77 P 1000; Brandt v. State, 129 Tex Crim Rep 558, 560, 90 SW2d 263. This evidence takes on additional significance when it is considered that the amount of currency carried by the defendant and Gray, added to that found hidden by the roadside at Dillard, and that found in the abandoned car comes within $20 of the amount stolen from *314 the gas station. The rule regarding the possession of recently stolen property applies, State v. Downing, 185 Or 689, 205 P2d 141. The jury were not bound to accept the exculpatory statement of the defendant and that of Gray that they had been to the Roseburg Lumber Company mill to seek employment. The jury could have believed that the two had been together, as they said, and that they were together when the gas station was robbed.
3. An assignment of error is directed to the court's refusal to strike out a large portion of the evidence in the case. We do not deem it necessary to discuss this motion specifically. It is sufficient to quote the following statement of Mr. Justice Holmes relative to circumstantial evidence in Commonwealth v. Mulrey, 170 Mass 103, 110, 49 NE 91:
The judgment is affirmed. | 0e718a888a3e968c6ebfc2221a8de924a99fe9afd986959692374d5fbc562813 | 1963-09-05T00:00:00Z |
147accc2-0bc4-40d4-bf87-5df29596ccac | State v. Hoffman | 236 Or. 98, 385 P.2d 741 | null | oregon | Oregon Supreme Court | Affirmed October 17, 1963.
Petition for rehearing denied December 10, 1963.
*100 Harold Banta, Baker, argued the cause and filed a brief for appellant.
Jesse R. Himmelsbach, Jr., District Attorney for Baker County, argued the cause and filed a brief for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
PERRY, J.
The defendant was indicted in two counts for the crimes of statutory rape and contributing to the delinquency of a minor. A jury acquitted the defendant of the crime of statutory rape and returned a verdict of guilty on the contributing charge. From the verdict of guilty the defendant appeals.
The defendant contends that since the jury acquitted him of the crime of statutory rape, and that *101 act is the act relied upon as the act manifestly tending to cause the minor child's delinquency, this acquittal is res judicata of the facts relied upon to sustain the guilty verdict returned.
Two separate and distinct statutory offenses are alleged in the indictment, though they arise out of the same occasion. The contention of the defendant, to be sustained, must rest upon the proposition that all the facts offered in an attempt to establish the offense of statutory rape on this occasion were by the verdict of not guilty decided favorably to the defendant. This is not the law, as pointed out by this court in State of Oregon v. Dewey, 206 Or 496, 292 P2d 799. We quoted with approval, as follows:
The statutory rape indictment charges the defendant with carnal knowledge of the minor. The contributing count in the charging part is as follows: "* * * to-wit, did then and there place his private parts on, *102 against and into the private parts" of the minor. The contributing count thus charges two acts; placing his private parts upon and against the private parts of the female child, and also penetration of her body.
1, 2. Proof of some penetration is a necessary element of statutory rape. State v. Poole, 161 Or 481, 90 P2d 472. And a specific intent to penetrate the body of the female is a necessary ingredient of any lesser included offense in that crime or of the crime attempt to rape. State of Oregon v. Moore, 194 Or 232, 241 P2d 455; State v. Olsen, 138 Or 666, 7 P2d 792.
3. ORS 167.210 which defines the crime of contributing to the delinquency of a child nowhere requires proof of a specific intent to cause the child to become a delinquent child, even though that intent may exist. Proof only of the doing of an act which is such that it manifestly tends toward causing the child to become delinquent is all that is required.
We held in State v. Casson, 223 Or 421, 354 P2d 815, that where the state elects to charge a defendant with contributing to the delinquency of a minor by "separate and distinct acts laid under a videlicet, `to-wit:'," each act standing alone, if proven, must be sufficient to sustain a verdict of guilty.
4. Proof of the defendant placing his private parts upon and against those of the minor child, standing alone, would suffice to sustain a verdict of guilty of contributing. But this act alone, as pointed out, would not require a conviction for rape or necessarily its lesser included offense or the crime attempt to rape.
5. The jury could have concluded that the defendant did the first act charged in the contributing count, but neither did nor intended to go further, and thus did acquit the defendant. We cannot therefore say the jury decided the placing fact in favor of the defendant. *103 We conclude the defendant's contention is without merit.
The defendant also contends that the trial court erred in proceeding under the enhanced penalty act before sentencing the defendant for the crime of contributing of which he was convicted. This same contention was made under a prior act, OCLA 26-2801 to 26-2804, and found without merit. State v. Durham, 177 Or 574, 164 P2d 448, 162 ALR 422. The defendant contends, however, the 1961 amendment to ORS Chapter 168 was intended to change the law in this respect. His principal reliance seems to be upon the use of the word "adjudication" in ORS 168.015 which does not appear in the former act.
6, 7. The word "adjudication" in its strict judicial sense is generally held to imply a final judgment of the court, that is, it involves an exercise of the judicial power in hearing and determining the issues and rendering a judgment thereon. 2 CJS, Adjudication, page 49. This statute insofar as material is as follows:
It will be noted the word "adjudication" in the definition of conviction refers to prior crimes, as it limits the prior conviction to be considered as enhancing the *104 penalty for the subsequent conviction, or principal offense, to those adjudications which have not been expunged or rendered nugatory.
8, 9. Paragraph (2) makes no reference to an "adjudication" in any manner as to the principal offense. Principal offense is defined as a conviction in a present action which will authorize the court to impose an enhanced penalty. Thus it refers to the finding of guilt either by plea in open court or the verdict of the jury in a matter then pending. Conviction, when used in this sense, is to designate a particular stage in a criminal prosecution where the guilt of the defendant has been established. Commonwealth v. Lockwood, 109 Mass 323, 12 Am Rep 699; In re Anderson, 34 Cal App2d 48, 92 P2d 1020; Attorney General ex rel O'Hara v. Montgomery, 275 Mich 504, 267 NW 550. Paragraph (2) clearly shows the intent of the act to be that the sentence upon the principal offense should be pronounced according to the law applicable to the facts found by the court as to prior convictions. This could not be done until the supplementary proceedings provided by the act had been heard and determined.
The defendant also contends that he is constitutionally entitled to a jury trial on the issue of whether or not he had been convicted of prior crimes. Article I, Section 11 of the Oregon Constitution provides: "In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *." The defendant then argues that since the habitual criminal act is a supplementary proceeding to follow a conviction, and therefore "a continuation of the original prosecution" (State v. Durham, supra), the issue involved as to his prior crimes falls within the requirements of Article I, Section 11 of the Constitution.
It is true that at common law a prior conviction *105 was regarded as a part of an indictment which must be established when the Crown sought to invoke an enhanced penalty for the crime charged and no procedure otherwise had been established by legislative action. State v. Blacker, 234 Or 131, 380 P2d 789; State v. Waterhouse, 209 Or 424, 307 P2d 327.
10. The legislature, after setting forth what must be alleged to state a crime (ORS 132.540), also stated therein "that the indictment shall not contain allegations that the defendant has previously been convicted of the violation of any statute which may subject him to enhanced penalties." Thus the legislature provided a change in the procedure with reference to the pleading of prior convictions of crimes. Contrary to the common-law view, prior convictions are not now an ingredient of any offense against the state, but are to be considered only in determining the sentence to be pronounced by the court.
11. The legislature has never declared that being an habitual criminal is a crime. As stated by this court, "It is not an offense to be an habitual criminal; it is merely a status." State v. Durham, supra, at 582. See, also, Broom v. Alexander et al, 198 Or 551, 255 P2d 1081; State v. Moore, 192 Or 39, 233 P2d 253; Borders v. Alexander, 183 Or 488, 194 P2d 414; and, as stated in Castle v. Gladden, 201 Or 353, 270 P2d 675, the act itself "merely provides a proceeding to determine the penalty to be imposed on the main charge." (201 Or 353 at 360.)
The observations of Mr. Justice Hughes in Graham v. West Virginia, 224 US 616, 32 S Ct 583, 56 L Ed 917, speaking on the habitual criminal act, are pertinent here:
*107 12, 13. The duty of determining the extent of the penalty to be imposed in a criminal case, with the exception of murder in the first degree, is by law imposed upon the trial judge. The extent of that punishment is legislative, limited only by the constitutional prohibition against cruel and inhuman punishment. State v. Smith, 128 Or 515, 273 P 323.
14, 15. In our opinion, the words "criminal prosecution," as set forth in Article I, Section 11 of our constitution, refer to establishing before a jury acts declared to be criminal by legislative action. Since proof of prior crimes is not a proper matter in an indictment for a present crime, but only proof that prior punishment has not been effective to reform the person, the defendant was not entitled to a jury trial relative to his prior convictions. Other states adhering to this view are: State v. Morton, Mo (1960), 338 SW2d 858; Robertson v. State, 29 Ala App 399, 197 So 73; State v. Guidry, 169 La 215, 124 So 832; State v. George, 218 La 18, 48 So2d 265; Poppe v. State, 155 Neb 527, 52 NW2d 422; Levell v. Simpson, 142 Kan 892, 52 P2d 372.
The defendant also argues that the trial court erred in failing to grant his motion for a mistrial because of improper questions propounded to witnesses by the prosecuting attorney. The questions asked were objectionable, and the defendant's objections thereto were sustained by the trial court.
The contention of the defendant is that the innuendo of the questions was such that, even though the court sustained the objections and instructed the jury to disregard them, their effect was so prejudicial, in that they tended to arouse the passion and prejudice of the jury, that he was denied a fair trial.
*108 16, 17. We have stated many times that a motion for a mistrial is addressed to the discretion of the trial court, and that only when it can be said that the trial court has abused its discretion will this court reverse. We have carefully examined the transcript of testimony in this cause, and after careful consideration are of the opinion that the court did not abuse its discretion and the defendant was accorded a fair trial.
The judgment is affirmed. | e80ceeca7eb4b39aef8469b026f0d2a4bbab1dda6b7925aaa7811b474fb51ee1 | 1963-10-17T00:00:00Z |
ef6aeec6-de47-4542-8dd6-04e851a49958 | Johnson v. Doughty | 236 Or. 78, 385 P.2d 760 | null | oregon | Oregon Supreme Court | Affirmed October 17, 1963.
Petition for rehearing denied November 26, 1963.
*79 Pat Dooley, Portland, argued the cause for appellant. With him on the briefs was Leo Levenson, Portland.
Ben T. Gray, Portland, argued the cause for respondents. With him on the brief was Richard F. Porter, Portland.
Before McALLISTER, Chief Justice, and O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
AFFIRMED.
GOODWIN, J.
Carl Johnson and Bessie Johnson each recovered a default judgment against one Lawrence Doughty for damages arising out of an automobile collision. Thereafter, the Johnsons brought writs of garnishment against Farmers Insurance Exchange. That garnishee now appeals from judgments entered in favor of each plaintiff. The cases have been consolidated for this appeal.
1. The collision occurred while Doughty was driving an automobile he had borrowed from one Smith. The garnishee at all material times was the carrier of insurance for Smith's automobile. Smith and Doughty resided at the same address in Bingen, Washington. Doughty borrowed the automobile to go to The Dalles, Oregon. He went to The Dalles and the collision occurred on his return to Bingen. While there is a dispute as to the fidelity with which Doughty observed the scope of his bailment, there is evidence from which the trier of fact could have found that Doughty was, *80 at all material times and places, a permissive user of the Smith automobile within the meaning of Smith's policy[1] of liability insurance. See Wallin v. Knudtson, 46 Wash2d 80, 278 P2d 344 (1955). The legal conclusion that Doughty was, accordingly, an "insured" under Smith's policy rested upon findings of fact which the trial court made in favor of the plaintiffs. There was adequate evidence to support those findings, and there is no reason to disturb them on appeal.
2. The focal issue here is whether the insurer-garnishee was relieved of its duty to pay the damages assessed against Doughty because of an alleged failure on the part of Doughty to cooperate with the insurer as required by the "insuring agreements" contained in the contract between Smith and the insurer. A failure by the insured to cooperate with the insurer is a breach of the contract, and, if prejudice to the insurer is proven, amounts to a defense that will relieve the insurer of its duties under the policy. See Allegretto v. Or. Auto Ins. Co., 140 Or 538, 13 P2d 647 (1932). (We need not in this case re-examine the implication in the Allegretto case that prejudice need not be shown.)
On the issue of noncooperation, these additional facts are relevant:
After the collision, Doughty failed to stop. He *81 was pursued and forced to the curb. He paused long enough to display evidence of intoxication, then drove off. He was never seen again by any of the persons interested in this litigation. The automobile was later found where Doughty had abandoned it. The automobile was traced to Smith. The collision was promptly reported by the Johnsons to Smith. Smith then reported the episode to his insurer. The collision was also promptly reported to the insurer by the Johnsons. The insurer thus had knowledge of the incident, even though it had not received a report from Doughty.
Some effort was made by police officers in Bingen, Washington, to learn the whereabouts of Doughty. They learned only enough to "believe" that he was "in California." Since there was no charge of a felony against Doughty, the police declined to pursue the matter further.
While the record is not clear on the point, there is evidence that one or more of the insurer-garnishee's adjusters knew that Doughty might be located at his mother's home in Azusa, California. The only evidence concerning Doughty's whereabouts during the times in question after the collision came from the adjuster and was admittedly based upon hearsay information from Doughty's relatives. The adjuster admitted that he knew the mother's name and address, but that he had made no effort to pursue the matter of Doughty's whereabouts.
The insurer sent Doughty a letter notifying him, not that he had a duty to cooperate, but only that the insurer was denying coverage. The letter was addressed to "Larry Daughty [sic], Bingen, Washington." Doughty had last resided there, but everyone *82 agreed he could not be found in Bingen after the collision. No letter appears to have been sent to Doughty at the California address the adjuster had discovered. There is no evidence that Doughty ever received a letter from the insurer. It is equally clear that Doughty did not correspond with the insurer, nor did he participate in any manner in the defense of the actions brought by the Johnsons.
3. The insurer, as noted, had initially refused to defend either action, apparently relying upon Doughty's failure to give notice of the collision as a breach of the policy which relieved the insurer of any duty to defend. Since the insurer had notice of the collision from other sources, its right to notice was not prejudiced by Doughty's failure to give notice. See Campbell v. Allstate Insurance Company, 32 Cal Rptr 827, 384 P2d 155 (1963), and cases collected in the Annotation, 72 ALR 1375, 1425 (1931). Unless otherwise excused from performance of its contract, the insurer was under a duty to defend the actions against Doughty in the cases now before us.
The trial court found that the insurer, in the exercise of due diligence, could have located Doughty, and could have solicited his cooperation. For the duty to exercise reasonable diligence, see Wallace v. Universal Insurance Company, 18 App Div2d 121, 238 NYS2d 379 (1963), and cases noted in Annotation, 60 ALR2d 1146, 1163, 1166 (1958). The trial court concluded as a matter of law that Doughty's failure voluntarily to place himself at the disposal of the insurer would not relieve the insurer of its duty to give Doughty reasonable notice and make a reasonable effort to secure his cooperation.
We agree with the trial court. The evidence proved *83 that the insurer did not make a reasonable effort to locate Doughty. The only letter sent to Doughty was directed to an address known to be incorrect at a time when the insurer had reason to know of a better address. The evidence creates a strong inference that the insurer did not want to locate Doughty under the circumstances of the case. Under such circumstances, the mere fact that Doughty disappeared is insufficient to show lack of cooperation. See Pennsylvania Threshermen & F.M. Cas. Ins. Co. v. Owens, 238 F2d 549 (4th Cir 1956); but see, where the insured disappears after reasonable efforts have been made to obtain his cooperation, Potomac Insurance Company v. Stanley, 281 F2d 775 (7th Cir 1960).
The contract between the insurer and Smith created liability insurance not only in favor of Smith, the named insured, but also in favor of Doughty, who came within the extended protection of the so-called "omnibus" coverage clause. See, e.g., cases collected in the Annotation, 126 ALR 544 (1944). Under such a contract, Doughty was a donee-beneficiary under the definition found in Restatement, 1 Contracts, § 133. He had the right to be notified that the contract existed and that he had certain duties under it before his rights could be terminated by reason of any failure on his part to communicate with the insurer.
Whether or not Doughty was a desirable insurance risk makes no difference. The evidence reveals that no reasonable effort was made by the insurer to give him an opportunity to demonstrate his willingness or lack of willingness to cooperate. The defense of noncooperation is one that must be proven by the insurer. The defense is not an escape clause that can be invoked by its mere assertion whenever an insurer finds *84 itself faced with a difficult case to defend. To permit the insurer to relieve itself of its contractual duties in the case at bar would encourage such insurers to avoid locating their less desirable insureds whenever it might appear to be advantageous to do so.
Affirmed.
[1] "* * * * *
"(b) with respect to the insurance afforded by this policy under Coverages A and B, the unqualified word `insured' includes (1) the named insured and, while residents of his household, his relatives, (2) with respect to the described automobile or a substitute automobile, any other person or organization legally responsible for its use, provided the actual use of the automobile is by the named insured or with his permission * * *." | f5511e1e2b28301f77f0d7ffbce55d51d42e64c16367e62ef70fc29b529e4985 | 1963-10-17T00:00:00Z |
ecb21f08-e2c3-4ff4-bda8-def33a7e6c6d | Bembridge v. Miller | 235 Or. 396, 385 P.2d 172 | null | oregon | Oregon Supreme Court | Affirmed September 5, 1963.
Petition for rehearing denied October 8, 1963.
*398 William E. Dougherty, Portland, argued the cause for appellants. On the brief were Dougherty & Cairns, Portland.
George L. Hibbard, Oregon City, argued the cause for respondents Bembridge. On the brief were Hibbard, Jacobs, Caldwell & Kincart, Oregon City.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, DENECKE and LUSK, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the defendant Fred C. Shafer from portions of a decree entered in a suit for declaratory relief filed by the plaintiffs William E. and Eva L. Bembridge, husband and wife, to determine the rights of the parties in a parcel of real property located near Oswego in Clackamas County.
The decree which was entered May 23, 1962, declared the plaintiffs (respondents) to be the owners of the real property subject to the right of defendant Fred C. Shafer to purchase the property for a price, specified in the decree, together with interest, and granted him a time certain within which to pay the price and receive the title or lose his equitable interest. Defendant Shafer appealed from the portion of the decree which awarded interest to the plaintiffs on the purchase price from the date the contract of sale was executed.
The property, about five acres in area, contains a two story dwelling and was purchased by the Bembridges sometime in 1942. Later, in anticipation of litigation concerning the purchase, the Bembridges conveyed the property to William H. Miller, father *399 of Plaintiff Eva L. Bembridge. The conveyance to Miller, who is since deceased, was without his knowledge. The plaintiffs alleged that Miller held the title in trust for them. The circuit court decreed that neither Miller's estate nor his heirs had any right, title or interest in the property.
The Bembridges and defendant Shafer became acquainted through the fact that they were neighbors during the time the Bembridges occupied this property. Mr. Bembridge and Mr. Shafer were attorneys, but neither was a general practitioner.
In 1953 the Bembridges moved to Seattle, Washington, where they remained until the end of 1961 or the first part of 1962. They leased this property for a monthly rental of $150 which was not paid. In the process of evicting the tenants and collecting the defaulted rent Mr. Bembridge entered into discussions with defendant Shafer relative to his purchase of the property.
During these discussions which occurred early in 1954, Shafer was informed by the plaintiffs that title to the property was in Mr. Miller as trustee and consequently the papers relative to the purchase of the property would have to be signed by him.
These discussions culminated in the execution of an earnest money receipt February 15, 1954, embodying a contract for the purchase of the property. The purchase price was $15,500 with $500 earnest money down payment. The net equity of the Bembridges in the purchase price after deduction of the down payment, a prior mortgage and a roofing obligation was $11,777.28. The contract provided:
The earnest money receipt was drafted by defendant Shafer.
Possession of the property was given to Shafer with the execution of the earnest money receipt. Bembridge testified that possession was given for the limited purpose of having the building appraised so it could be mortgaged. He also testified he told Shafer: "* * * be sure you own it before you touch a nail in it."
March 5, 1954, defendant Shafer applied for a mortgage loan on the property from Prudential Insurance Company of America. The loan was to be insured by Federal Housing Administration (FHA). Subsequently, in April 1954, he was informed that the property did not qualify for FHA approval. Before it would insure the loan FHA required repairs which it did not specify. The physical condition of the property had become impaired by neglect and hard usage. Pursuant to his interpretation of the requirement for repair Shafer commenced renovation work on the house that ultimately cost $13,660.79. Included in the total expenditure were exterior painting, replacement of the front and back porches, installation of a bay window, interior painting, plastering, papering and the installation of cabinets, a sink and dishwasher in the kitchen. The expenditures covered work done in a period from February to September 1954.
May 23, 1954, Bembridge went from his home in Seattle to confer with Shafer because he was concerned over the delay in consummating the sale. He testified that he tendered a deed at that time to Shafer *401 and, receiving no payment, handed him a notice that the contract was rescinded. Shafer denied receiving the notice. A second notice was sent on June 25, 1954, by registered mail this notice Shafer acknowledges. Following the rescission notice plaintiffs engaged a series of attorneys and instituted two law suits to regain possession of the property. The suits were dismissed without trial on the merits. October 4, 1955, the Bembridges impressed a fictitious mortgage on the property designed to defeat a threatened transfer of the property from Miller to Shafer. The lower court's decree declared this mortgage null and void.
Subsequent to the notice of rescission, Shafer dealt exclusively with Miller concerning the purchase of the property. September 1, 1954, defendant Shafer received an FHA compliance inspection report which stated briefly that the building improvements had been acceptably completed.
September 8, 1954, a significant date in this litigation, Shafer sent a letter to Miller with a copy to Bembridge's attorney in which he set out the improvements and repairs that had been made, and concluded:
Either defendant Fred C. Shafer or defendant Virginia Shafer, from whom he is now divorced, has retained possession and occupied the premises in question *402 to the present date. This suit was instituted by the plaintiffs in September 1961.
Defendant Shafer's (Fred C. Shafer) sole assignment of error contends the lower court erred in decreeing the contract purchaser owes interest on the purchase price of the property from the date of the earnest money receipt (February 15, 1954) to the date of payment.
Appellant first argues that his letter of September 8, 1954, qualifies as a tender in writing pursuant to ORS 81.010 which provides:
1, 2. At common law the term "tender" has definite legal significance imparting not merely the willingness and intent to perform but also the ability at the time of tender to pay in accordance with the offer. The thing tendered, whether money, documents or chattels, must actually be produced and made available for the acceptance and appropriation of the person to whom it is offered. In essence the only distinction between "tender" and payment lies in the fact that a "tender" is not accepted while a payment is. Consequently, if there is an offer to perform but no money is made available, there can be no payment; and likewise, there can be no tender at best only a naked offer to pay. Equitable Life Assur. Soc. v. Boothe, 160 Or 679, 86 P2d 960; Hartman v. Stark, 99 Or 596, 195 P 1117.
3. The legal effect of "tender" at common law is to cut off the tenderer's liability, other than for the debt, *403 for damages and interest arising from nonpayment. This effect arises because the debtor has done all that is required of him and his liability should not be increased simply because the proferred sum is not accepted by the creditor. The offer has this effect only if it complies with the requirements of "tender." It must be an unconditional offer to pay the full amount of the debt and the money must be presently available for acceptance. 86 CJS, Tender, §§ 1, 2, 29, 30, 50; Hartman v. Stark, and Equitable Life Assur. Soc. v. Boothe, both supra.
4. Except as modified by statute, the common law definition of tender is still applicable in this state. Equitable Life Assur. Soc. of U.S. v. Boothe, 160 Or 679, 86 P2d 960. The legislature, in enacting ORS 81.010, did not intend to supersede the common law requirement that the person making the written tender have the present ability to make the tender good if it is accepted. Holladay v. Holladay, 13 Or 523; McCourt v. Johns, 33 Or 561, 53 P 601; Milton v. Hare, 130 Or 590, 280 P 511; Eastern Ore Land Co. v. Moody, 119 CCA 135, 198 F 7; Short v. Rogue River Irr. Co., 82 Or 662, 162 P 845; Ladd & Tilton v. Mason, 10 Or 308.
Holladay v. Holladay, supra, involved a loan of approximately $160,000 plus interest. Respondent claimed, inter alia, that interest stopped on the note at the time a written offer of payment was made. This court rejected the contention and after quoting section 842 of Oregon Civil Code (ORS 81.010) continued:
In McCourt v. Johns, supra, the vendee in a land contract sought to rescind, claiming he had tendered the agreed price in writing. This court held the written offer of payment was not a good tender since the vendee's testimony showed he was not prepared to make his tender good. The decision said:
Milton v. Hare, supra, ruled:
Eastern Ore Land Co. v. Moody, supra, was a suit in equity by Moody for specific performance of a contract for sale of land. Moody was far in arrears on the contract and after a threat to foreclose wrote a letter to the seller saying he would pay the balance on the contract. This court rejected his purported tender saying:
From all that appears in the record, appellant (defendant) Shafer has not sustained this burden. Nowhere in the record is there any indication that an FHA approved mortgage was made on the property or that the proceeds of a loan were made available to Shafer. The FHA compliance report of September 1, 1954, was not a completed mortgage or loan but merely an FHA construction examiner's report stating the building improvements were acceptably completed. There is no indication Shafer followed up this report or that there was a final disposition of his loan application by Prudential Insurance Company. Consequently, on September 8, 1954, it appears Shafer was not able to make good the offer of full performance by an FHA approved loan.
The following is from Shafer's testimony:
This uncontroverted evidence shows not only that *406 the loan was not made but also that it could not have been made on or before September 8, 1954.
5. Shafer's testimony indicates, disregarding the inconsistency, that a mortgage loan on the property was not his only available source of funds; he states he "possibly could have raised money on the outside." What his "outside" source was was not revealed. Nor did he indicate that funds from this "outside" source were available on September 8, 1954, so that he could apply them on this obligation if his offer of full performance was accepted. A mere assertion that the money to back up the offer was available to the appellant was not sufficient.
In Short v. Rogue River Irr. Co., supra, this court rejected a purported written tender when the purchaser admittedly had no money even though he had made arrangements to borrow money from his attorney. The court reiterated the oft stated principle: "When written tender is made, a defendant must show that he had at the time, and still has, the means of making the tender good."
The conclusion seems inevitable that appellant Shafer did not have $11,777.28 to turn over to Mr. Miller or the Bembridges on September 8, 1954. Simply stating in the letter that he tendered full performance does not automatically impart to these words all the legal significance that flows from a valid tender. The requirement of a present ability to make good the offer is indispensable to give the offer the legal effect of a tender.
A holding would be strange if it ruled that a debtor who was presently unable to discharge the obligation could stop the running of interest simply by offering full performance in writing.
*407 Appellant contends the Bembridges waived any objection to the purported tender by failing to object when it was made. He cites ORS 81.020. This statute provides:
6. Before a person to whom a tender is made can interpose an objection he must be apprised of the factors to which he can object. The ability of the tenderer to make good the tender is usually information peculiarly within his own knowledge. This is information with which the recipient of the offer should not be charged. Rarely would a creditor know whether his debtor was able to pay when he makes a tender of performance. If he is not apprised of this inability, he certainly could not object. How then can it be said he waives this particular objection? It is not the purpose of this statute, just as it is not the purpose of ORS 81.010, to raise a naked offer to the legal status of a tender when the offeror does not have the present ability to pay.
In the Oregon cases holding that objections to a tender are waived under ORS 81.020 the tenderer had in each case the present ability to make his offer of performance good. Seidenberg v. Tautfest, 155 Or 420, 64 P2d 534; Hawkins v. Fuller, 116 Or 433, 240 P 549; Comstock Mfg. Co. v. Schiffmann, 113 Or 677, 234 P 293; Sayre v. Mohney, 30 Or 238, 47 P 197. There is no authority for appellant's proposition that *408 an objection to the insufficiency of a tender on the ground of inability to pay is waived. On the contrary, the principle is clear that in order to establish such a waiver of objection the tenderer must show an existing capacity to perform. 62 CJ, Tender, § 44; 86 CJS, Tender, § 34; Adams and McKee Land Co. v. Dugan, 68 Cal App 226, 228 P 681; Wynkoop v. Cowing, 21 Ill 570; Bonds v. Rhoads, 203 Miss 440, 35 So2d 437; Sovereign Camp W.O.W. v. McClure, 176 Miss 536, 168 So 611; Adams v. Adams, 156 Neb 540, 57 NW2d 131; Falk v. Springarn, 279 NYS 282, 155 Misc 355.
Appellant argues that his liability for interest should be denied because of the Bembridges' conduct which he says frustrated completion of the contract. He apparently contends that because of respondents' litigation and the ficticious mortgage which impeded the consummation of the sale he should be allowed to enforce the contract, retain the fruits of possession and pay no interest on the purchase price, which as yet has apparently not been paid.
7-9. The theory of equity in awarding interest on the purchase price in the specific enforcement of a contract for the sale of land is governed by the peculiar character of the relation between vendor and purchaser. A type of reciprocal fiduciary relationship is created by the agreement. The purchaser acquires an equitable interest in the land and the vendor an equitable interest in the unpaid purchase price. Absent any stipulation to the contrary, the purchaser has a right to possession or the rents and profits of the land and the vendor a right to interest on the unpaid purchase price. The fruits of possession and the interest are mutually exclusive there is no right upon the part of either to have both. Hoehler v. McGlinchy, 20 Or 360; Sayre v. Mohney, 30 Or 238, 47 P 197; Burkhart *409 v. Howard, 14 Or 39; Plews v. Samuel, [1904] 1 Ch (Eng) 464; Bangs v. Barret, 16 RI 615, 18 A 250; Barrowman v. Charles, 234 Ky 508, 28 SW2d 780; Lowther-Kaufman Oil & Coal Co. v. Gunnell, 184 Ky 587, 212 SW 593; Sale v. Swan, 138 Va 198, 120 SE 870; Pearce v. 3rd Ave Improv Co., 221 Ala 209, 128 So 396.
10. This court very early recognized the principle in Hoehler v. McGlinchy, supra. In finding the purchaser liable for the unpaid purchase price, the court said:
The facts mentioned in that extensive quotation closely parallel those we are considering today. Appellant Shafer has had the fruits of possession of the property since February 1954, in excess of eight years. During this time he has paid a $500 down payment, a $386.76 roofing obligation, and has made monthly payments of $52 on a prior FHA mortgage of $3,023.95 on the property. All of these sums were deducted *410 from the purchase price of $15,500 to determine the balance of $11,777.28 due the Bembridges.
Mr. and Mrs. Bembridge testified that they had rented the property in the past for $150 per month and that they would at no time have rented it for less. During the eight year period the total rental value of the property would be roughly $14,000 while the interest on the unpaid purchase price of $11,777.28 at 6 per cent per annum would be roughly $5,600 for the same period.
11. Mr. Shafer has suffered no loss during the period of delay and has had the fruits of possession, in the words of Hoehler v. McGlinchy, "for nothing." The ill advised conduct of the Bembridges stemming from what they believed to be a rescission of the contract is not sufficiently reprehensible to deny them interest. In the absence of some gross inequity, it seems to be the predominant weight of judicial opinion in courts of equitable jurisdiction that to accord the purchaser beneficial enjoyment of possession without liability for interest on the detained purchase money is inequitable.
Appellant also contends he should not be liable for interest prior to September 8, 1954, because his performance was not due until then. At law in the absence of a contractual provision to the contrary, the vendor's right to the purchase money would not mature until the time for the purchaser's performance had arrived. Consequently, interest would be calculated only from the date of the vendee's default.
Equity, however, when asked to enforce the performance of an agreement of this character, proceeds not only with a recognition of the contractual rights of the parties, but also with an observance of the *411 position assumed toward each other by the parties during the period of the contract and the resultant equities. And as mentioned above, in equity we ascribe significance to the fact of immediate possession of the property by the purchaser. There is nothing incompatible with equity in the lower court's decree awarding interest from the date of the earnest money receipt (February 15, 1954) until the purchase money is paid.
The decree of the circuit court is affirmed. | 9dfb16395fe363cdc97b293c0460e419b7b8081fa5ca35891ac8049f28375e68 | 1963-09-05T00:00:00Z |
b5bb4db3-4105-491a-b0d1-8301dec87420 | Maynard v. ORE. WILLAMETTE LBR. CORP. | 235 Or. 124, 383 P.2d 1001 | null | oregon | Oregon Supreme Court | Reversed July 24, 1963.
Clifford B. Olsen, Portland, argued the cause for appellant. With him on the briefs were Anderson, Franklin, Jones, Olsen & Bennett, Portland.
*125 David Landis, Portland, argued the cause for respondents. On the brief were Maguire, Shields, Morrison, Bailey & Kester, and Howard K. Beebe, Portland.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, O'CONNELL and LUSK, Justices.
REVERSED.
SLOAN, J.
Plaintiff's complaint alleged that she and her husband bought from defendants a sliding glass patio door in reliance upon defendants' warranty that the glass in the door would not shatter if broken. The glass in the door did break and shatter; one piece of which fell and impaled plaintiff's foot. She brought this action claiming a breach of an express warranty. The case was tried to a jury and a verdict given for defendants. Plaintiff appeals. The one assignment concerns an instruction to the jury.
The glass door was installed at an entrance to a playroom in plaintiff's house. Plaintiff and her husband were anxious to have shatterproof glass because the room was to be used for their small children. The door was located a few feet from another door leading to the kitchen of the house. Just prior to the accident complained of plaintiff was in the kitchen, her youngest daughter was in the playroom. Plaintiff heard something break and heard her daughter scream. She hurried to the playroom and observed the shattered glass in the door. She was uncertain whether she was looking through the door or going past it to another entrance to the playroom when the glass fell and caused her injury.
1, 2. The defense was based on the theory that plaintiff "used" the door after she had knowledge of *126 the defect and thereby waived her claim of breach of a warranty. Defendant requested and the court gave the challenged instruction. The particular language in question reads:
The instruction omits the vital requirement that it was also necessary to find that plaintiff was actually using the door when she was injured. It is not enough that she knew that the glass had shattered unless she also proceeded to use the door with that knowledge. The jury could have found that plaintiff was not attempting to open the broken door when she was hurt. Defendants cite many cases from this and other jurisdictions which follow the rule that the knowledgeable use of a defective article deprives the party from consequential damages upon breach of warranty. This court has so held, Western Feed Co. v. Heidloff, 1962, 230 Or 324, 370 P2d 612.
But here the court failed to include the element of use and the instruction given was virtually the equivalent of a directed verdict. We think it was prejudicial error and the case must be remanded for another trial.
Reversed. | 28d193f046c1835f8f801fadb8b4b2fc1b93aeb959534075d4fc43886ac83337 | 1963-07-24T00:00:00Z |
24e7a647-86a1-41a6-b5ad-0a24ad1a945e | Lommasson v. School Dist. No. 1 | 201 Or. 71, 267 P.2d 1105 | null | oregon | Oregon Supreme Court | Argued on rehearing January 6, 1954.
Reversed and remanded October 7, 1953.
Former decision set aside; judgment affirmed March 10, 1954.
Petition for rehearing denied April 7, 1954.
*75 Randall S. Jones, of Portland, argued the cause for appellant. With him on the briefs was Robert L. Weiss, of Portland.
Grant T. Anderson argued the cause for respondent. On the brief were King, Wood, Miller, Anderson & Nash, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, TOOZE and PERRY, Justices.
REVERSED AND REMANDED.
WARNER, J.
Plaintiff-appellant was at one time employed as a teacher in the public schools of the city of Portland, Oregon, by the directors of School District No. 1 of Multnomah county, the defendant-respondent. She brings this action to recover damages claimed to have been sustained by reason of defendant's refusal to *76 recognize her alleged right to continued employment as a "permanent" teacher. From a judgment of involuntary nonsuit, plaintiff appeals.
Beginning in 1938, and for many years following, plaintiff taught millinery in Girls' Polytechnic High School; but during the school year 1949-50, and thereafter, the district refused to employ her except on a part-time basis.
Plaintiff represents that, having previously taught full time for three successive school years as a teacher regularly appointed and employed with an annual salary, she thereby acquired a permanent status under the Teachers' Tenure Law (§§ 111-2301 111-2320, OCLA) and, having that status, contends that the district is obligated to continue to employ her. The plaintiff has arbitrarily selected the history of her employment during the school years of 1933-44, 1944-45 and 1945-46 upon which to predicate and demonstrate the righteousness of her claim.
The district controverts these contentions, alleging that during the foregoing school years, her employment was only as an "assigned substitute" and, relying on § 111-2304, OCLA, asserts that by virtue of that circumstance she was specifically excepted from the beneficient provisions of the tenure law.
This appeal calls for the resolution of three principal questions: First, Do all teachers of the district (other than substitutes) have to pass through a probationary status before attaining a "permanent" classification, or can the board under the provisions of § 111-2304 regularly appoint and employ some of them without subjecting them to the tests involved in the elevation from probationary to permanent rank? Second, Is a teacher who is appointed and regularly *77 employed to fill a position not temporarily vacated by the absence of another regularly retained, denied the benefit of tenure status because in her contracts for such service she is described as an "assigned substitute"? Third, If the teacher's employment was initially within the power of the district and evidenced by contracts not executed with all the statutory formalities, can the district thereafter ratify them?
1, 2. Before examining the Teachers' Tenure Law in the light of the divergent positions of the respective parties, it will not be amiss to note that this law has as its foundation the all important public policy of giving further protection to the educational system of our state, rather than the granting of special privileges to teachers as a class or as individuals. Its broad objective is to maintain stability in teaching staffs and to avoid the evils of a fluctuating personnel so frequently incident to manifestations of prejudice, favoritism or arrogance on the part of school administrators. It therefore follows that the act should receive a liberal construction to effect its general plan as an act designed to promote the public interest. State v. Stout, 206 Ind 58, 187 NE 267, 269; McSherry v. City of St. Paul, 202 Minn 102, 277 NW 541, 546.
We look first to § 111-2304, OCLA, since it is the section of the tenure law wherein we find the basic requirements prerequisite to the attainment of permanent or "tenure" status. It reads:
Section 111-2307, OCLA, referred to in § 111-2304, as amended by ch 137, Oregon Laws 1945, provides:
Plaintiff is in no wise challenged by charges of inefficiency, unbecoming or other conduct which might warrant a dismissal under the provisions of § 111-2311, OCLA. It was stipulated that she was employed on a "substantially full-time basis" during the three school years which are made the basis of her claim for tenure and that during those years she was not taking the place of a regular teacher absent on leave.
We have deliberately underscored the word "or" in our quotation from § 111-2304, OCLA, in order to focus attention upon the prime point of disagreement *79 between the parties. Plaintiff contends that the word should be read literally with its normal disjunctive connotation. The defendant district, on the other hand, argues that it should be given a conjunctive import by reading it as if it were the word "and".
If we read the word "or" literally, then it becomes evident that permanent status is acquired by a teacher in one of two alternative ways. However, if we are compelled to give the word "or" the meaning of "and", then a teaching record of three successive years does not ripen into permanent status until the school board adopts a resolution as provided in § 111-2307 of the tenure act. This construction urged upon us by the defendant district is tantamount to saying that all teachers initially and regularly employed by the district must be first employed as "probationary" teachers who can never graduate from their initial probationary standing to permanent status until they have first served the required three successive years and won the board's accolade in the manner provided by § 111-2307, OCLA.
3, 4. Courts should exercise circumspection to avoid any effort to amend statutes. There is no justification for using "or" as meaning "and", unless the failure to do so would leave a statute meaningless or absurd. It is an inexcusable device of interpretation where there is no ambiguity to be resolved. Generally, the words "and" and "or", as used in statutes, are not interchangeable, being strictly of a conjunctive or disjunctive nature, respectively; and their ordinary meaning will be followed if it does not render the sense of the statute dubious or circumvent the legislative intent, or unless the act itself furnishes cogent proof of the legislative error. State v. Kelly, 218 Minn 247, 15 NW2d 554, 162 ALR 477, 490; Tedars v. Savannah *80 River Veneer Co., 202 SC 363, 25 SE2d 235, 147 ALR 914, 919; 50 Am Jur, Statutes, 268, § 282; 82 CJS, Statutes, 672, § 335.
5. Taking the tenure law by its four corners, we do not find § 111-2304, OCLA, rendered ambiguous, meaningless or absurd by the legislative use of the controverted word "or" in its usual meaning and disjunctive employment and cannot accept defendant's suggestion that we substitute "and" in place thereof and thereby give a conjunctive character to the phrase which follows; nor do we think the foregoing conclusion is violative of the legislative intent. Indeed, if we accept defendant's premise, it is plain to us that we must also conclude that all teachers who are regularly appointed and employed by a school district must be initially employed on a probationary basis (except, of course, substitute teachers) and that all, after three years of such service, must thereafter be subjected to board review of their records required by § 111-2307 before they can successfully attain permanent status.
We do not so read the tenure law. We find nothing therein which inhibits a school district from regularly employing any teacher without first subjecting such instructor to a probationary period. The word "teachers", as used in the act, comprehends the whole gamut of instructors from the elementary school to those presiding over high school classes. Within the statutory definition of the word "teacher" is also included high ranking administrative employees: supervisors, principals, vice-principals and directors. § 111-2304, OCLA. Offices with such administrative responsibility are ordinarily assigned only to those who have proved their worth through long prior experience. To hold, as defendant would have us do, that all "teachers" must first submit to three years of probationary testing *81 would deny to the school board the valuable opportunity to choose from many experienced men and women with well established reputations in their profession but who might hesitate to accept appointment because of their unwillingness to subject themselves to the vicissitudes and uncertainties of probationary employment. § 111-2306, OCLA.
The earlier counterpart of § 111-2306, (as it was originally enacted in 1935) and its immediate predecessor as legislation treating with the same subject matter, was § 35-2603, Oregon Code 1930, a part of the tenure law enacted in 1913. Section 35-2603 expressly directed that "The teachers employed in any such district or districts during their first two years of service shall be classed as probationary teachers." This mandate of the 1913 tenure act would give cogent substance to defendant's argument if it or its equivalent could be found in the later tenure law of 1935, which supplanted in its entirety the act of 1913.
6. The inclusion of the controverted provision of § 111-2304, OCLA, as presently drawn, coupled with the deletion of the inflexible mandatory direction compelling probationary employment as originally written into § 35-2603, is in our opinion clear and conclusive evidence of the legislative intent to vest district school boards with powers of a discretionary latitude whereby the services of some teachers might be retained without subjecting them to the incident uncertainties of probationary status and thereby enlarging the field from which teachers of proven ability and experience can be chosen.
7, 8. With no statutory mandate dictating that all teachers employed by the district must be placed on a probationary basis for three years, it follows that a school board can create two alternative kinds of "regular *82 teacher" employment: (1) Those who are not subjected to probationary status and (2) those who are. All thus regularly employed must, of course, serve at least three successive school years before attaining eligibility for permanent tenure; but only those who are on probationary status are subjected to the district board's favorable resolutions before their permanent status is finally determined. To hold otherwise would be to circumvent what appears to us as the legislative intent.
9. In order to enjoy permanent status under the tenure law, it is unnecessary for plaintiff to prove that she was first placed on probationary status and thereafter elevated to permanent status pursuant to a resolution provided for by § 111-2307 OCLA, if she can show that she was a regularly employed teacher for three successive school years and not engaged during that time as a substitute temporarily employed during the absence of other regularly employed instructors.
Notwithstanding the foregoing conclusion, we still have before us the necessity of disposing of the second question propounded by this appeal, i.e., deciding whether plaintiff was a regularly employed teacher in contradistinction to employment as a probationary teacher or as a substitute.
No contention is made by the district that she was on a probationary status during the school years in question. To the contrary, defendant insists that she was only a substitute teacher during that time or, as it describes her, an "assigned substitute".
Sections 111-2304 and 111-2305, OCLA, respectively incorporate and expand the fundamental thought initially enacted by ch 152, § 3, Oregon Laws 1917, and by ch 37, § 2, Oregon Laws 1913. Concerning the acts of 1913 and 1917 last referred to, this court held in Taggart *83 v. School District No. 1, 96 Or 422, 435, 188 P 908, 1119, that they had no application to substitute teachers; and we now, and for the same reasons there given, so hold with reference to the present Teachers' Tenure Law of which §§ 111-2304 and 111-2305 are integral parts. It follows, therefore, that if plaintiff was employed as a teaching substitute in the legal or common acceptation of that term, she has no standing here. If, however, plaintiff's services were rendered as a regularly employed teacher not retained on a probationary basis, then the appellation "substitute" loses its ordinary connotations and does not stand as a bar to such rights as plaintiff is entitled to claim under the tenure law.
It is defendant's contention that during all the teaching periods here involved, plaintiff's status was that of an "assigned substitute", a term not included in the nomenclature of the tenure law. The claim rests upon a like phrase used in the contracts made with plaintiff for the teaching years beginning respectively in 1943, 1944 and 1945.
10. In the absence of a statutory or judicial definition, the true nature of the employment should be determined by an examination of its characteristic constituent elements and not as defined by a descriptive word or phrase arbitrarily applied. This is particularly true when the descriptive words so used in and of themselves suggest a meaning wholly at variance with the distinctive qualities of that particular service. In short, the test is what the plaintiff did, not what she was called.
At the threshold of this line of argument, the defendant district is confounded with its stipulation to the effect that plaintiff was employed on a substantially full-time basis during these three controlling school *84 years and, while so engaged, was not taking the place of a regular teacher absent on leave.
The word "substitute", although used in the tenure act, is not there defined, nor has this court heretofore had occasion to define it judicially. This omission is not strange, because of its generally accepted and long familiar meaning to all who have ever attended a school. However, we have made reference to persons in that status as being "substitute teachers temporarily employed" and substitute teachers who are "employed to take the place of another teacher for a week or a day". Taggart v. School District No. 1, supra, at 435. These phrases comport with both the academic and legal acceptation of the word "substitute" as one who takes another's place in case of the latter's absence. Schulz v. State Board of Education, 132 NJL 345, 40 A2d 663, 669; Webster's New International Dictionary (2d ed).
We are told by the respondent district that the words "assigned substitute" are words of administrative convenience with no foundation in law and that, as so used by School District No. 1 here, they can mean, among other things, persons "substituting in a temporary position for which there is no regular teacher."
11-13. Whether plaintiff was serving in a "regular" or "temporary" position and what constitutes a "regular position" as distinguished from a "temporary position" are matters not before us nor necessary for determination in this decision; but we do note that the test of tenure for teachers under the present law is not made contingent upon the kind of position they are selected to fill, that is, regular or temporary, but rather upon the regularity of their employment, if not probationary, and the successive years of such employment. So far as the tenure act is concerned, teachers' claims to permanent status cannot be impaired by the *85 fact that they are assigned to teach courses which, for administrative convenience, the school board may treat as experimental or temporary courses. Permanent status does not, however, impose upon the district a duty to employ continuously a teacher with that rating when the board determines, in the exercise of good faith, that such employee's services must be discontinued because of the demands of economy or by reason of a lack of pupils. Funston v. District School Board, Etc., 130 Or 82, 90, 278 P 1075, 63 ALR 1410.
If it should appear to the school board that it should be vested with power to accomplish what it is apparently attempting to do, that is, avoid an overloading of its permanent teacher rolls while speculating on the continuance of a given teaching course, then we submit that it should seek relief from the legislature rather than by arbitrarily attempting to circumvent the tenure law by the employment of phrases designed to cover conditions not expressly excepted from the operation of that law.
We have no occasion to impugn the integrity or good faith of the board in its apparent eagerness to save the district additional expense incident to an overloading of the permanent teacher rolls; but we submit that the device here employed to avoid such a situation, if, in fact, such was its objective, is fraught with grave dangers and can, unless condemned, become a wicked instrumentality in the hands of school officials unfriendly to the tenure law.
14. Our answer to the second question is that plaintiff during the several school years was not acting as a substitute but in a capacity as regular as any regularly employed teacher and that the use of the words "assigned substitute", as applied to her, does not work *86 to destroy or temper her rights under the tenure act, unless it can be said that she was not "regularly appointed and employed" during her three successive years of service in the sense that it challenges the legal sufficiency of the formalities of her contracts.
The defendant district makes the formality of the execution of plaintiff's contracts an issue in this matter and thereby injects a challenge to the power of the school district to ratify subsequently a previous contract irregularly executed, notwithstanding that the agreement had the character of one which the district had the power to authorize in advance.
The facts upon which the defendant district depends are substantially as follows: For the school year 1943-44, the board by resolution directed a contract in letter form wherein the teachers to be employed were described as "assigned substitutes". Plaintiff was mailed such a contract, accompanied by a covering letter setting forth the terms of the employment for a full school year. Both the letter and contract were signed by one of the district's assistant superintendents and the contract by the plaintiff. The salary schedules referred to therein were established by a motion recorded in the minutes of the board. Thereafter, plaintiff was paid in accordance with such schedules by warrants signed by the chairman of the board and its school clerk.
Substantially the same procedure was followed for the school years 1944-45 and 1945-46, with the exception that there was no resolution directing the form of contract to be used. Notwithstanding, a form of contract similar to that authorized in 1943 was used in the two subsequent years, and plaintiff received warrants in payment for services in accordance with the salary schedules adopted for those years. They were signed *87 by the same officials who had signed the warrants for 1943-44.
Section 111-1041, OCLA, provides for the formalities of making teaching contracts and, insofar as pertinent, reads:
Ratification is claimed by plaintiff by reason of the payment for her service in full for the several years she functioned pursuant to the contracts made. The defendant disclaims power in itself to ratify contracts of the kind made with plaintiff. In support of its position, it relies heavily upon Taggart v. School District No. 1, supra, 96 Or 422 (1920). Contrariwise, the plaintiff asserts that the controlling law is found in Graham v. School District, 33 Or 263, 54 P 185, an opinion written by Mr. Justice WOLVERTON in 1898.
It is an item of interest, although not of controlling character in the instant matter, to note that if the premise of defendant in this respect is correct, then a host of Portland teachers may discover that they have been serving under invalid contracts with the incident of possible jeopardy to such future claims as they may make under the tenure law, for the particular form of contract employed in the retention of plaintiff's services was designed by the board's resolution to be used for all of Portland's "assigned substitutes".
*88 15. The pertinent words of Justice WOLVERTON in the Graham case emphasized by the plaintiff read (33 Or 266):
That part of the Taggart case to which defendant points with a confident assurance was written by Mr. Justice BENNETT in response to a petition for rehearing in that matter and states (96 Or 437):
What at first appears to be a sharp diversity between these two opinions loses much of its force and effect when we make a critical study of the Taggart case. That case was a proceeding in mandamus designed to compel the restoration of Mrs. Taggart to her position and employment as a teacher in the Portland schools. Her claim was predicated upon the theory *89 that her prior service as a teacher entitled her to the protection of the tenure law then in effect and that she was entitled thereto despite the fact that her entire teaching service was as a substitute for a regularly employed teacher who was absent from her position by reason of illness and despite the further fact that Mrs. Taggart's entire period of employment rested upon an oral contract made between her and the superintendent of schools of that city. This court in that opinion, as we have earlier observed, held that as a teacher substituting in the place of a regularly employed teacher, she was not entitled to the benefits of the tenure law. It is apparent from a reading of that opinion that what the court thereafter said concerning the power of the school board to ratify an irregularly made contract was unnecessary and contributed nothing to the result there reached, for the reason that, had Mrs. Taggart's employment been evidenced by a contract executed with all the formalities of law, she still would not have been entitled to claim a place on the permanent rolls under the tenure act. It follows, therefore, that the statement in the Taggart case relied upon by the defendant district is dictum and, ipso facto, loses much of its persuasive force, particularly when read with the doctrine of contract ratification laid down in Graham v. School District, supra.
The rule of ratification announced in the Graham case is well established in its application to the contracts of school districts. 47 Am Jur, Schools, 331, § 50; Hamilton and Mort, The Law and Public Education, 284-85, 330-31; Voorhees, The Law of the Public School System, 127, § 58.
This court has never cited the Taggart case as authority for the proposition advanced by the defendant in the intervening 30 years since its initial pronouncement. *90 To the contrary, since the decision in the Graham case we have repeatedly recognized the right of ratification of irregularly executed contracts as therein expounded and have many times applied it to irregularly executed contracts made by other public or municipal entities of this state. See Mount v. Welsh et al., 118 Or 568, 587, 247 P 815 (a contract for a post-mortem examination); McKenna v. McHaley, 67 Or 443, 447, 136 P 340 (a county contract for the services of a deputy district attorney); Cunningham v. Umatilla County, 57 Or 517, 519, 112 P 437, 37 LRA NS 1051 (a county contract for detective services); Steiner v. Polk County, 40 Or 124, 125, 66 P 707 (a county contract for professional services).
16. Assuming that a school board has authority, in the first instance, to make contracts of the kind challenged on the ground of irregular execution, the public is not thereby deprived of any substantial protection by the board's subsequent ratification. It is our conclusion that the power of ratification so extensively discussed and properly applied in Graham v. School District, supra, should prevail over what is said as dictum concerning the same subject in Taggart v. School District No. 1, supra, and we so hold.
The order of nonsuit will be reversed and the case remanded for a new trial.
Randall S. Jones and Robert L. Weiss, of Portland, argued the cause for appellant.
Grant T. Anderson argued the cause for respondent. On the brief were King, Miller, Anderson, Nash & Yerke, of Portland.
WARNER, J.
Upon petition of the defendant school district a rehearing was granted. It was predicated upon the proposition that the court erred in the original opinion in construing the Teachers' Tenure Law (ORS 342.205 to 342.330) in such a way as to create a class of regular teachers, neither "permanent" nor "probationary", who would attain tenure status automatically at the end of their third year of employment.
To sustain this contention the school district advanced a thesis so casually and indifferently presented in its first brief, and never exploited in its initial oral argument, that we may appropriately say that it now comes to us in the form of a first presentation. Its persuasive force is materially aided by the respondent's forthright acceptance of our holding that the word "or", appearing in the statute, is there used in its literal and disjunctive sense rather than in a conjunctive character, as so earnestly urged in the school district's first brief and thereafter contended for with equal zeal at the first oral presentation. Had not counsel's first argument so depended upon our acceptance of the meaning which he then assigned to the word "or", we doubt if this petition for rehearing would have been necessary. We are indebted to both appellant and respondent for the comprehensive briefs now furnished and their able arguments made at the last hearing.
The respondent now contends that the phrase in the first clause of § 111-2304, OCLA (ORS 342.210) reading, "have been regularly appointed and employed * * * for not less than three successive school years" indicates that this clause was intended to operate *92 retrospectively and not prospectively, as argued by the appellant.
17. To fully appreciate the legislative intent and meaning encompassed in § 111-2304, we are compelled to give consideration to the entire act of 1935 (Oregon Laws 1935, ch 125). This persuades us that the proper construction of the first clause of the second sentence of § 4 a construction which avoids the objections and anomalies which, as we later point out, result from the court's original decision, and which makes a harmonious whole of all the separate provisions of the statute is that it was intended to apply retroactively to teachers who, before the effective date of the new act, had been regularly appointed and employed for not less than three successive school years. This meaning clearly appears when the whole sentence is read: "`Permanent' teacher or teachers shall mean and include all teachers who have been regularly appointed and employed by any such school district for not less than three successive school years, or who may hereafter be placed upon the permanent list by resolutions of the school board as hereinafter provided." (Italics ours.) The change from past tense in the first clause to future tense in the second clearly indicates that, while the second clause refers to something that will occur after the effective date of the act, the first clause refers to something that has already occurred.
18. The 1935 act repealed the prior law and wiped out tenures acquired under it. Campbell v. Aldrich, 159 Or 208, 79 P2d 257; cases collected in 147 ALR at p. 299. The evident purpose was to give the same benefits to teachers who had previously served three years as to those who should thereafter serve for three years, omitting, however, the requirement of a resolution *93 of the board of directors. This would be by way of compensation for the loss of rights previously acquired.
The first teachers' tenure act was passed in 1913. General Laws of Oregon 1913, ch 37. It applied to school districts having a population of 20,000 or more persons. Section 3 provided that teachers "during their first two years of service shall be classed as probationary teachers" and authorized the board of directors to dismiss a teacher at any time during the probationary period "upon cause deemed sufficient by the board". Section 4 provided: "Teachers who have been employed in the schools in any such district or districts as regularly appointed teachers for not less than two successive annual terms shall by the board of directors be placed upon the list of permanently employed teachers." Teachers upon the permanent list were not subject to annual appointment but continued to serve until dismissed or discontinued by the board in the manner provided in the act.
This act was revised by General Laws of Oregon 1917, ch 152, which retained substantially the provisions of the 1913 act to which we have referred. It was again revised in 1935. Oregon Laws 1935, ch 125. The provisions of this act repeal the prior legislation and govern the present controversy. Two subsequent amendments are not pertinent to the question under consideration. See Oregon Laws 1939, ch 113; Oregon Laws 1945, ch 137. The act is found in OCLA, Title 111, ch 23, and ORS 342.210 to 342.330. In this opinion we shall refer to the 1935 act. In each instance, italics used are our own.
The title of the act reads:
"Providing the manner in which all teachers, instructors, officers, agents and/or employees of *94 school districts in this state, having a population of 20,000 or more persons, shall be appointed, employed, classified, compensated, retired, dismissed, removed, discharged, transferred and/or demoted, and for the repeal of chapter XXVI, title 35, Oregon Code 1930, as amended."
Section 3 reads:
Section 4 reads:
Section 6 reads:
Section 7 reads:
Section 8 contains this provision:
Section 9 has to do with the transfer of a permanent teacher from a position in any branch of the service to another position in the same branch of the service. Section 11 contains provisions relative to recommendations by the superintendent as to the dismissal, transfer or demotion of a teacher and forbids dismissal of a permanent teacher except for certain specified causes. Sections 12 to 16 and § 18 prescribe the procedure for the hearing of charges against a permanent teacher. Section 20 provides for the retirement of teachers at the age of 65 years.
19. The 1935 act is a complete law governing the subject of the tenure of teachers in the school districts to which it is applicable. It applies to all teachers in such school districts. This appears both in the title and in the body of the act. Section 3 empowers the board to employ, classify and fix the salaries of all teachers, and authorizes the board to "appoint, employ, retire, dismiss, remove, transfer and/or demote any such teacher" only in the manner thereafter provided in the act. In § 6 provisions are made for the discharge, removal and transfer or demotion of probationary teachers. Section 8 provides for the continuance in service without requirement of annual appointment of permanent teachers; § 9 for the transfer; and § 11 for the dismissal of permanent teachers. The procedural provisions of §§ 12 to 16 and § 18 all concern permanent teachers.
Since provisions of the act touching the appointment, employment, retirement, dismissal, transfer and demotion of teachers are expressly made applicable *97 to all teachers of the district; and since the school board is authorized to perform these functions in the manner prescribed by the act and in no other manner; and since the act prescribes how these duties are to be discharged with respect to two classes of teachers and two only, namely, probationary and permanent, it follows that this court in its first decision adopted a construction of § 4 which is in direct conflict with the clear legislative intent, for the plaintiff, during the three years of employment upon which she relies to establish her right to permanent status, was, according to that construction, neither a probationary teacher nor a permanent teacher.
20. She asserts in her brief that she was not a probationary teacher within the meaning of § 7, and we agree. Of course, she could not on any theory have become a permanent teacher until she had served three successive years. Consequently, there is not a single provision of the act which could be applied to the plaintiff during this three-year period, because by express language all its provisions are made to apply either to probationary teachers or to permanent teachers, and she, we are told, was neither.
21. It is the duty of the court to give effect to the whole of the statute when endeavoring to determine the meaning of a particular provision and, if possible, to reconcile seemingly inconsistent provisions and bring them into harmony one with another. Anthony v. Veatch, 189 Or 462, 502, 220 P2d 493, 221 P2d 575; Portland v. Duntley, 185 Or 365, 380, 203 P2d 640; Hunter v. Cunning, 176 Or 250, 285, 154 P2d 562, 157 P2d 510; Union Pacific Railroad Co. v. Bean, 167 Or 535, 549, 119 P2d 575.
In Anthony v. Veatch, supra, Mr. Justice HAY, speaking for the court, after stating the rule that a *98 court is required in the interpretation of a statute to give it such construction as will, if possible, give effect to the whole of it, quoted with approval this language from Driscoll v. Klamath County, 122 Or 515, 518, 259 P 915:
The following from Endlich, Interpretation of Statutes, 250, § 182, applies to this case with peculiar force:
We quote again the second sentence of § 4 which gives rise to the controversy, italicizing some of the words: "`Permanent' teacher or teachers shall mean and include all teachers who have been regularly appointed and employed by any such school district for not less than three successive school years, or who may hereafter be placed upon the permanent list by resolutions of the school board as hereinafter provided." If the disjunctive "or" bears its ordinary meaning and the first clause of the sentence is given prospective application, it does indeed appear to create a third class of teachers, i.e., permanent teachers who *99 become such automatically after three years of service and who were never probationary teachers. The other two classes would be probationary teachers and permanent teachers who acquire permanent tenure pursuant to the provisions of § 7.
To accept this meaning of the statute introduces an element of unreasonableness, for what reason can be suggested for including in a tenure statute a class of teachers wholly unaffected by the provisions which relate to their dismissal, transfer or demotion?
The 1939 revision evinces a clear intent to tighten, rather than relax, the requirements for permanent tenure. The probationary term is increased from two to three years and a resolution of the board, based upon an examination of the teacher's records and ratings, is required before the teacher can be transferred to the permanent list.
The plaintiff's contention runs contrary to the basic theory of teachers' tenure laws. The Supreme Court of Minnesota in an opinion reviewing the history of the tenure movement said, "the objectives sought have been to protect the teachers against unjust removal after having undergone an adequate probationary period." (Italics ours.) McSherry v. City of St. Paul, 202 Minn 102, 277 NW 541. A well-documented article upon the subject in 17 Mich L Rev 430 (1938-1939), states that tenure was then in force in 19 states and the District of Columbia, and continues: "Although varying in specific details, the general pattern of these laws may be described briefly. For a period ranging from one to five years, the teacher is on probation and during that time he may be denied reemployment at the end of any school year, but dismissal during the year must be for cause." (Italics ours.) Also see 78 CJS 1010, Schools and School Districts § 180; Proceedings *100 of the 59th Annual Meeting of the National Education Association, p. 149; Research Bulletin of the National Education Association, September 1936, p. 175. However, even though it were considered not unreasonable for the legislature to abolish the probationary period and to provide for permanent tenure from the beginning, it would be highly unreasonable to enact a law under which some teachers, to be selected by some unknown process, become entitled to the benefits of such a provision while others are denied them. Unless absolutely driven to it by language which admits of no other interpretation, such an interpretation should not be adopted.
22. As against the construction which we think is the correct one, the general rule is invoked that statutes are to be given prospective application unless an intention to make them retroactive is clear. This court in State ex rel. Pierce v. Slusher, 119 Or 141, 150, 248 P 358, approved the following statement of the rule from Twenty Per Cent Cases, 20 Wall 187, 22 L ed 339: "* * * courts will apply new statutes only to future cases, unless there is something in the nature of the case or in the language of the new provision which shows that they were intended to have a retroactive operation." (Italics ours.)
Again, in Denny v. Bean, 51 Or 180, 184, 93 P 693, 94 P 503, we said:
Respecting the reason of the rule, it is said in Endlich, Interpretation of Statutes, 362, § 271: "Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation." And again at p. 367, § 273: "It is chiefly where the enactment would prejudicially affect vested rights, or the legal character of past transactions, that the rule in question prevails."
The effect of giving a retrospective operation to the disputed language would be merely to confer a benefit which would otherwise be withheld from a class of teachers who, it may be assumed, the legislature considered had already earned the right to permanent tenure. It works no injustice and disturbs no vested rights. It not only accords with the grammatical construction of the sentence, giving due weight to a change of sense indicated by a change in language, but it removes the contradictions and inconsistencies created by the court's construction. It is a result called for by "the nature of the case".
23. The brief of the plaintiff on rehearing calls particular attention to the word "shall" in the phrase "`permanent' teacher or teachers shall mean and include" and argues that "shall" is language of the future. This is true, but irrelevant. Section 4 is a statute of definition and, of course, the definitions are to be applied prospectively. That would be so if the word "shall" were omitted. However, a definition to operate in the future may bring within its sweep *102 persons or things because of past events or transactions, as if a law should read "Lawyers shall mean and include every person who has passed the bar examination or who may hereafter graduate from a law school." The definition would be prospective, but those who had passed the bar examination theretofore would nevertheless come within it.
Insofar as the first decision gave a construction contrary to what we have hereinabove said, it is withdrawn. We continue, however, to cleave to that part of the earlier opinion which relates to the subjects of "substitute teachers", "assigned substitutes" and the ratification of teacher contracts.
The judgment of the circuit court is therefore affirmed. | 940cee3cb83ca52d1067c1215a00a4ba291ea15415d90f4fc70f0dcde9421ef4 | 1954-03-10T00:00:00Z |
771bb42c-a281-42d4-bff1-4765ede66ecd | Olshen v. Kaufman | 235 Or. 423, 385 P.2d 161 | null | oregon | Oregon Supreme Court | Reargued March 4, 1963.
Affirmed September 5, 1963.
Petition for rehearing denied October 8, 1963.
*424 Paul R. Meyer, Portland, argued the cause for appellant. On the brief were Kobin & Meyer.
Carlton R. Reiter and Lewis B. Hampton, Portland, argued the cause for respondents. On the brief were Reiter, Day & Anderson and Lewis B. Hampton.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, Justices.
AFFIRMED.
*425 LUSK, J.
This is an action to recover the balance owing on a check for $5,750 given to the plaintiff by the defendant Leonard I. Kaufman, Jr. The other defendant, Leon W. Behrman, is the guardian of the estate of Leonard I. Kaufman, Jr., a spendthrift. When the action was commenced the only defendant was Kaufman; the guardian was not made a defendant until after the case came on for trial.
The question is whether, under the statute of this state providing for the appointment of guardians for spendthrifts, recovery may be had on the contract of a spendthrift when his guardian has repudiated the obligation.
The facts are free from dispute. Briefly stated, the record shows that in December, 1958, Kaufman induced the plaintiff, a druggist in Portland, to advance to him the sum of $1,575 as an investment in a joint venture for the purchase of toys for resale. A few months later Kaufman informed plaintiff that they had doubled their money. He offered to give plaintiff a check in settlement and at the same time proposed another venture in the purchase of binoculars to which the plaintiff agreed. Plaintiff's share of the toy business, his investment plus the profit, was $2,340. This sum and an additional $2,660, totaling $5,000, were thereupon advanced by plaintiff to Kaufman for use in the binocular business. Later Kaufman told plaintiff that the latter was entitled to $750 as his share of the profits from that venture, and he gave the plaintiff his check for $5,750, dated October 1, 1959, drawn on the Bank of California, N.A., in full settlement of his indebtedness to the plaintiff. There were insufficient funds in Kaufman's account with the *426 bank to pay the check and no part of the debt has been paid except $1,400. Plaintiff brought this action to recover the balance of $4,350, together with interest and a reasonable attorney's fee.
There was a trial before the court without a jury, upon the conclusion of which the court entered findings to the effect that the transactions, as a result of which Kaufman delivered the check to the plaintiff, were not transactions for necessaries and that the guardian had declared void the transactions and the agreement of Kaufman to pay $5,750 to the plaintiff. Judgment accordingly was entered for the defendant. The plaintiff appeals.
We think that the case was correctly decided.
ORS 126.005, in effect at the applicable times, provided:
The order adjudging Kaufman a spendthrift and appointing Mr. Behrman guardian of his estate was entered by the Circuit Court for Multnomah County, Probate Department, February 25, 1953, upon a petition filed by Kaufman's mother and sister, which showed, among other things, that Kaufman had a beneficial interest in a trust created by his grandmother from which he received an income of approximately $3,000 a year. Kaufman consented to the appointment in writing, as provided for by former ORS 126.135. *427 Behrman immediately duly qualified as guardian and has ever since acted in that capacity.
Former ORS 126.335, the statute in effect at the time of the transactions in question, provided:
The statute originally provided that the contracts of a spendthrift are "null and void," OCLA 22-114. This was changed to "voidable" by Oregon Laws 1947, ch 524, § 17, and changed again in 1961 to "voidable by the guardian of the estate for the ward," Oregon Laws 1961, ch 344, § 37; ORS 126.280.
1, 2. The statutes of other states regarding spendthrifts usually provide, as ours formerly did, that the contracts of a spendthrift while under guardianship, except those for necessaries, are null and void. We are of the opinion that the change from "null and void" to "voidable" in 1947 was made with the idea in mind that some contracts which a spendthrift might enter into would be for his benefit and that the guardian in such a case should be granted the discretion to determine that question and to avoid the contract if he thought that this would be in the interest of the ward, but if otherwise to affirm it. The 1961 amendment adding the words "by the guardian" after "voidable" was evidently adopted to clarify the meaning of the statute and to remove any doubts that might have arisen as to who was authorized to avoid the spendthrift's contracts. See Elliott Grocer Co. v. Field's Pure Food Market, Inc., 286 Mich 112, 281 NW 557, 118 ALR 845. This right to avoid a contract was given *428 for the protection of the spendthrift. A similar right in the case of insane persons is ordinarily exercised by a guardian. Woerner, Guardianship, § 129; Atwell v. Jenkins, 163 Mass 362, 40 NE 178, 47 Am St Rep 463, 28 LRA 694; Allen v. Berryhill, 27 Iowa 534, 536, 1 Am Rep 309; Carrier v. Sears, 4 Allen (Mass) 336, 81 Am Dec 707. So, also, of infants. Oliver v. Houdlet, 13 Mass 237, 7 Am Dec 134. An Illinois statute provided that every contract with a "spendthrift made after the application for the appointment of a conservator, may be avoided, except in favor of the person fraudulently making the same." Rev. Statutes of Illinois, 1905, ch 86, § 15. In Sheldon v. Eakle, 160 Ill App 282, this right to avoid a contract was held to be in the conservator.
3. The purpose of the appointment of a guardian of the estate of a spendthrift is to protect the ward in his property against his wasteful and vicious habits which expose him or are likely to expose him or his family to want or suffering or to cause any public authority to be charged for any expense for his support or that of his family. ORS 126.005, supra. See Norton v. Leonard, 29 Mass 152, 161. It would seem to be fairly obvious that for the fulfillment of that purpose the responsibility of declaring void a contract entered into by the ward naturally devolves upon the guardian, along with his other duties. That this is what the legislature intended when it adopted the amendment in question we think there is no reason to doubt.
The guardian in this case having elected to declare the contract void, the plaintiff cannot recover upon it, unless there is merit in his contentions now to be considered.
By way of reply to the affirmative answer alleging *429 the guardianship of Kaufman and the avoidance by the guardian of the contract sued upon, the plaintiff alleged that since 1957 Kaufman had regularly engaged in business as a wholesaler of toys, sporting goods, radios, and other merchandise; that defendant Behrman knew of Kaufman's business activities and made no inventory of the property of Kaufman used in them; that the contracts entered into by Kaufman in the pursuit of such business activities were the contracts of the guardian and that the defendants had waived any right to avoid the check which is the basis of plaintiff's claim, and are estopped to deny its validity.
The evidence is uncontradicted that Kaufman did engage in at least some of the business activities alleged. He maintained an office. He had commercial accounts in the Bank of California, N.A., and The United States National Bank of Portland and borrowed money from both banks. In June 1960 he borrowed $7,000 from the Bank of California, giving as collateral security a warehouse receipt for binoculars and 84 shares of stock of Trans Caribbean Airways, Inc., standing in his name. It is not necessary to go into these matters in further detail.
That Mr. Behrman knew about some of his ward's doings is not disputed. He testified that he learned of the bank accounts and instructed Kaufman not to maintain them and the banks not to allow them, and that he remonstrated with his ward regarding his engaging in business, but, in effect, that he could not control Kaufman.
Despite all this, it cannot be questioned that Kaufman had been duly adjudged a spendthrift and Behrman duly appointed his guardian and that the *430 guardianship was in existence at the time of the transactions which led to this lawsuit. This is not a case of a "dormant guardianship" referred to in Reeves v. Hunter, 185 Iowa 958, 967, 171 NW 567, where the ward is "restored to mental competency, and * * * the guardian, recognizing such fact, surrenders to him his estate, and thereby becomes entitled to an order of discharge, but neglects to obtain the same," but a case "of an active, `going' guardianship." Annual reports were regularly filed and their approval secured, and petitions presented and orders thereon taken relating to the routine business of the estate. The value of the estate as shown by the second supplemental inventory and appraisement filed March 11, 1958, was $63,410.17. The eighth annual account filed February 16, 1961, showed total assets valued at $86,381.38.
The question presented, therefore, is whether, if a spendthrift engages in business, to some extent with the knowledge, though not the approval, of his guardian, the ward and the guardian are estopped to question the validity of a contract entered into by the ward with one who has no actual notice or knowledge of the guardianship.
4. We are unable to see on what principle this can be held. A spendthrift under guardianship who enters into a contract impliedly, at least, represents that he is competent to do so; yet the mere fact that the party dealing with him has no actual knowledge of the guardianship will not prevent the spendthrift from relying on his incompetency as a defense when sued on the contract, Reeves v. Hunter, supra; Sheldon v. Eakle, supra; Lynch v. Dodge, 130 Mass 458. As stated in the case last cited:
5, 6. In re Barker, 83 Or 702, 164 P 382, is relied on by the plaintiff. In this case recovery was allowed for the agreed price and reasonable value of necessaries sold by the plaintiff to the ward for whom a guardian had been appointed as a spendthrift. It appeared that the guardian had placed in the hands of the ward each month ample funds for his sustenance, but that the ward squandered the money and failed to pay in full for the necessaries furnished him by the plaintiff, and the defendant argued that for this reason food furnished the ward by the plaintiff and consumed by the ward were not necessaries. The court said that it was a violation of the guardian's duty to commit the control of any considerable portion of the ward's property to the spendthrift himself, but that to declare that such conduct would take from the spendthrift's food its character as a necessary "would be to say that the payment of his just debts could be prevented by a void act." 83 Or at 706-7. The only principle established by this decision applicable to the present case is that dereliction of duty on the part of a guardian of a spendthrift cannot be invoked to affect the validity, or otherwise, of contracts entered into by the ward. Whether one contracting with the ward would have a remedy against the guardian in his personal capacity because of such dereliction of duty, is a question not presented by this record and concerning which we indicate no opinion. The guardian *432 is a proper party to defend the action in the interest of the ward, but he is not a proper party for the purpose of establishing a personal liability against him. Sturgis v. Sturgis, 51 Or 10, 19, 93 P 696, 131 Am St Rep 724, 15 LRA NS 1034.
Plaintiff quotes from 5 Bancroft's Probate Practice (2d ed) § 1345 as follows:
The foregoing statement is taken from In re Cuffe's Estate, 63 Mont 399, 207 P 640, which was a contest between a guardian and his ward, a minor, over the settlement of the guardian's accounts. The guardian had never taken possession of the property of the ward and the ward continued to operate a farm which he owned as he had before the guardianship. The court held that a complete and fair settlement of the accounts had been agreed upon by the parties after the ward became of age and added, obiter, the language quoted, which may have been appropriate to the facts of that case but can scarcely be accepted as a principle applicable to the dealings of the ward with third parties.
7. In Reeves v. Hunter, supra, the court said that the property of a spendthrift is "in a sense, in custodia legis" and that every person "dealing with one who is, in fact, under permanent guardianship, is bound by constructive notice of the judgment of disability," 185 Iowa at 964. Sheldon v. Eakle, Lynch v. Dodge, both supra, Rannells v. Gerner, 80 Mo 474, and Imhoff v. Witmer's Administrator, 31 Pa 243, 244-245, are to the same effect. The case of Gen. Pulaski B. & L. *433 Assn. v. P. Tr. Co., 338 Pa 198, 12 A2d 336, which is cited as contra to these holdings, is explained and qualified in Pa. Co. for Bank. and Tr. v. Phila. T. Ins. Co., 372 Pa 259, 262-264, 93 A2d 687. We think it is not in point. See, also, Century Credit Co. v. Jones et al., 196 Pa Super 210, 213-214, 173 A2d 768. The fact that the defendant was engaged in business, if known to the plaintiff, might have misled the latter, but could not give validity to the spendthrift's contract. If he was incompetent to make a contract, he was equally incompetent to estop himself to assert its invalidity.
An analogy is suggested to cases in which some of the courts have held that infants may be estopped to avoid their contracts on the ground of incompetency. At common law an infant's contract is voidable by him upon his attaining his majority. In this state, where an infant has purchased an article of personal property as, for example, a motorcycle or an automobile, and on attaining his majority disaffirms the contract, returns the property and sues to recover the consideration paid by him, he will not be permitted to recover the amount actually paid without allowing the seller reasonable compensation for the use and depreciation of the article while in his hands. Gaither v. Wallingford, 101 Or 389, 200 P 910; Petit v. Liston, 97 Or 464, 191 P 660, 11 ALR 487. More nearly resembling this case are those in which an infant fraudulently misrepresents his age so as to induce another to enter into a contract with him. If the infant is sued at law upon such a contract it is held by all but a few courts that he is not estopped by his conduct to avoid the contract, 27 Am Jur 798, Infants § 67. See Annotations, 6 ALR 416, 418; 18 ALR 520; 90 ALR 1442. In other cases, according to the author of *434 the annotation in 6 ALR, "* * * it is not easy to say where [the weight of authority] is." Some of the courts have relied on the language of Lord Mansfield in Zouch ex dem, Abbot v. Parsons (1765), 3 Burr. 1794, 97 Eng Rep 1103, that the privilege "is given as a shield, and not as a sword" and "[t]here is considerable authority to the effect that one, having while an infant induced a contract by fraudulent representations that he was of full age, may not demand relief from a court of equity." 27 Am Jur 800, Infants § 70. See, for example, Stallard v. Sutherland, 131 Va 316, 108 SE 568, 18 ALR 516. On the other hand, it was held by the court of appeals of New York in Sternlieb v. Normandie National Securities Corp., 263 NY 245, 188 NE 726, 90 ALR 1437, that in a suit to rescind a purchase of stock based on the ground that the plaintiff was under 21 years of age at the time he made the purchase, the defense that the plaintiff misrepresented his age was not valid. The court cited numerous authorities to support its statement "That the false representation regarding age does not prevent rescission, even when the infant be the plaintiff, is the holding of the courts in the majority of our States." 263 NY at 249. We need not pursue that matter further because we are not dealing here with that kind of a case.
8. Even though the analogy of the law regarding the contracts of infants were to be applied to spendthrifts, the plaintiff would not be aided, because, under the decided weight of authority, estoppel cannot be invoked against an infant when he is sued upon his contract and moreover in no case, so far as we are aware, has the infant been held estopped unless it appeared that at the time of entering into the contract he was of sufficient age to understand his rights and the *435 nature of the business on which he was engaged. See 27 Am Jur 798, Infants § 65. Thus in LaRosa v. Nichols, 92 NJL 375, 105 A 201, 6 ALR 412, the court said:
None of the cases in which the contracts of infants have been held enforceable on the ground of estoppel involve infants under guardianship. It cannot be assumed that a spendthrift under guardianship is of sufficient capacity to make a contract; that would be to attack the very basis of the court's order appointing a guardian for him. For the "guardianship [is] conclusive of the disability of the ward, whether in consequence of insanity, or habitual drunkenness, old age, sickness, or other cause whatever." Woerner, Guardianship 425. As the court said in Lynch v. Dodge, supra, 130 Mass at 458:
See, also, Reeves v. Hunter, supra, 185 Iowa at 961; Hughes v. Jones et al, 116 NY 67, 15 Am St Rep 386, 22 NE 446, 5 LRA 632; Wadsworth v. Sharpsteen and Moffat, 8 NY 388, 59 Am Dec 499; L'Amoureux v. Crosby, 2 Paige's Chancery Reports (NY) 422, 22 Am Dec 655; Wait v. Maxwell, 5 Pickering (Mass) *436 217, 16 Am Dec 391; Hovey v. Hobson, 53 Maine 451, 89 Am Dec 705.
Our attention is called to 1 Williston on Contracts (rev ed) § 254, where the author discusses the modern rule that if one dealing with a lunatic may reasonably suppose he is sane and makes a bargain with him on that assumption, mental incapacity is no defense to an action on a contract. The authorities to which Williston refers are all cases in which the lunatic was not under guardianship. This fact is specifically stated by the author in section 257, where it is said:
9. It is said by plaintiff that the provision of former ORS 126.320 (3), imposing on the guardian the duty to "pay out of the personal estate, if sufficient, and if not, out of his real estate, all just debts due from his ward," is controlling. But this statute does not determine what are the "just debts" of the ward, and cannot be reasonably interpreted to apply to a debt incurred by the ward which the guardian elects to avoid. If it were so applied, then the provision that the contracts of the ward are voidable by the guardian would lose practically all meaning. ORS 126.320 (3) was part of a general statute prescribing the duties of all guardians, including those of the "mentally ill." The contracts of persons of unsound mind who are under guardianship are generally absolutely void, Woerner, Guardianship 425. Were the plaintiff's *437 argument to prevail, it would follow that it would become the duty of the guardian of such a person to carry out the void contract of his ward. The "just debts" referred to evidently include those incurred for necessaries and, in the case of spendthrifts, those ratified by the guardian. They do not include those which the guardian is authorized to, and does, avoid.
Cases cited by the plaintiff in support of the contention that the guardian is estopped by his conduct to avoid the contract are far afield and do not call for discussion. None of them deal with guardians of spendthrifts or other incompetents. Were this an action against the guardian personally, the contention might require serious consideration, but we are not prepared to say that a guardian who is recreant to his duty can thereby render ineffectual the provisions of a statute governing the contracts of his ward.
10. Nor can we yield to the argument that the defendants are liable under some theory of restitution. The case is wholly unlike Petit v. Liston and Gaither v. Wallingford, both supra, the holdings in which have been heretofore stated. This is not a suit for restitution, but an action on a check and even though it were construed to be the former, to permit recovery by the plaintiff as though that were the theory of the case would be nothing less than an evasion of the statute.
In Sternlieb v. Normandie National Securities Corp., supra, Judge Crane made some observations about the policy of the law relative to infants' contracts as enunciated in his opinion in that case and, among other things, said:
But he concluded:
The New York court was dealing with the rules of the common law relating to infants' contracts as evolved by the courts. This case is governed by a statute and, whether the policy of this statute be salutary or otherwise, we have no choice but to give it "force and effect."
The judgment is affirmed.
SLOAN, J., dissenting.
Research has failed to produce any case law or other authority parallel to the instant case. So it is necessary to apply the law as it has been found to exist in respect to other legally disabled persons; the mental incompetents and infants. Having done so, I am caused to believe that a guardian is not conclusively exempt from judicial review of his avoidance of the wards' contracts.
The majority rely on the statute to conclude that only the guardian can decide when a claim against the wards' estate should be avoidable. I do not think we should read that restriction into the statutes. "A just debt" ORS 126.320 (3) should mean something more than an obligation for necessaries. The reasons for that conclusion, briefly stated, are these:
The first is that the ex parte process by which guardians are appointed could enable a person, as in *439 the case before us, to consent to the appointment of a guardian, place his property behind the wall of that protection, and continue to do business to the cost and detriment of his creditors. Even if the creditors could set aside the guardianship because of fraud upon the court, not necessarily easy to prove, it still would put the creditors to the cost and delay of doing so. The situation mentioned is somewhat analogous to a person attempting to place his own property in a spendthrift trust for his own benefit. The courts have never permitted such a spendthrift trust. 1 Scott, Trusts, (1939) § 156, 782.
This is not to say that the guardian here was fraudulently appointed. That issue is not before us. But we do know that Kaufman placed property of substantial value in the hands of his guardian and then, without any interference by the guardian, Kaufman proceeded to enter into business transactions of sizable proportions.
Equity has not permitted the statute of frauds to stand in its way when unconscionable conduct would otherwise prevail. 4 Pomeroy's, Equity Jurisprudence, (5th ed 1941) § 1293. Although the present action is not in equity there is no reason why equitable principles should not apply. We should not read the statute so as to allow the unconscionable conduct present here.
Secondly, for more than 50 years the policy of the courts has been to impose more stringent limitations upon the right of an incompetent or an infant to avoid his contracts. This court has followed the trend. Petit v. Liston, 1920, 97 Or 464, 191 P 660, 11 ALR 487.
Authority always cited with confidence, verifies the above statement. Woodward, The Law of Quasi *440 Contracts, (1913 ed) § 67, 108, has this to say about incompetents:
Williston, somewhat later said the same thing:
In respect to infants Professor Williston urged the rule already adopted by this court, Petit v. Liston, supra:
The theory stated by Williston is not new. See 2 Kent, Commentaries, (14th ed, 1896), 356, Lecture XXXI.
When, as here, the victim of Kaufman's deceit is without the taint of any fraud or overreaching upon his part, he should not be barred by judicial sanction of that deceit. The statute should be and is for the protection of those afflicted with a lack of ability to control their impulses. It should not be construed to be a license to commit fraud upon the innocent.
O'CONNELL, J., dissenting.
The majority opinion treats ORS 126.335 as a legislative declaration that a spendthrift's contracts are voidable per se irrespective of the inequity which may result to the person with whom the spendthrift deals. It is not necessary to so construe the statute. It is more reasonable to assume that the legislature intended the word "voidable" to have a meaning similar to that attributed to it in other areas of the law involving a person's competency to contract. In those areas it is generally held that even though a contract with an incompetent person, such as an infant, is voidable, the promisee may be entitled to relief under certain circumstances. The case of Petit v. Liston, 97 Or 464, 191 P 660, 11 ALR 487 (1920) illustrates the principle. There it was held that an infant who disaffirmed a contract under which he was purchasing a motorcycle could not recover from the seller the *443 amount paid without compensating the seller for the use and depreciation of the motorcycle while it was in the infant's possession. Other cases apply the same principle and hold that an infant is entitled to recover only the difference between the amount paid under the contract and the benefits received by him.[1] The same result should obtain whether the infant brings the action to recover the purchase price or the seller seeks to recover for the unpaid benefits received by the infant.[2]
The foregoing cases are alluded to simply to show that the rule recognizing the voidability of contracts by incompetent persons is not absolute, and that the courts will hold them to their bargain if it would be inequitable not to do so. The same general principle should be followed in the application of ORS 126.335. The guardian should not be permitted to avoid the spendthrift's contracts in those situations where it would be inequitable to permit him to do so.
I believe that it would be inequitable to permit avoidance of the contract in the present case. Here the spendthrift had engaged in various business activities. To those not aware of the guardianship, Kaufman was just another person carrying on a business. There was nothing about him or his activities which would give warning of his status as a ward. To say, as the majority does, that guardianship proceedings give constructive notice of the ward's status is merely *444 to state a conclusion. With equal ease it may be said that guardianship proceedings do not constitute constructive notice. Authority can be cited to support the latter view. Thus it has been held that insanity proceedings do not impart constructive notice of the promissor's incompetency to those who deal with one who has been adjudicated insane.[3]
If a person dealing with a spendthrift does not know of the guardianship and if the contract is beneficial to the spendthrift, the statute should not protect him. An analogy is found in the law of infant's contracts. It has been held that where a minor, who has all the appearances of having reached his majority, induces another to enter into a contract by misrepresenting his age, the minor may be estopped to repudiate the contract.[4] And an estoppel has been applied where there was no misrepresentation as to age but where the minor engaged in business as an adult and the promisee reasonably believed that the minor was legally capable of contracting.[5]
The competing interests of the spendthrift, his family and the county on one hand, and third persons dealing with the spendthrift on the other, must be considered in defining the scope of ORS 126.335. We cannot assume that the legislature, in its solicitude for those suffering from profligate habits, did not also consider the interest of innocent third persons who, *445 without notice of the spendthrift's weakness and the guardianship which was created to protect him, dealt with the spendthrift to their detriment in a pecuniary way. The spendthrift deserves to be protected only to the extent that it is necessary to protect him from loss resulting from transactions inimical to his pecuniary interests. He should not receive protection under the statute if he has benefited from the transaction. I would interpret the statute to permit recovery from the spendthrift to the extent that the spendthrift was benefited by the transaction. In the present case this would allow plaintiff to recover the amount of money he contributed to the joint venture.
GOODWIN, J., joins in this dissent.
[1] Riley v. Mallory, 33 Conn 201 (1886); Bailey v. Barnberger, 50 Ky 113 (1850); Adams v. Beal, 67 Md 53, 8 A 664 (1887); Berglund v. American Multigraph Sales Co., 135 Minn 67, 160 NW 191 (1916); Johnson v. Northwestern Mutual Life Ins. Co., 56 Minn 365, 59 NW 992 (1894); Rice v. Butler, 160 NY 578, 55 NE 275 (1899).
[2] Saccavino v. Gambardella, 22 Conn Supp 167, 164 A2d 304 (1960); Hall v. Butterfield, 59 N H 354, 47 Am Rep 209 (1879).
[3] General Pulaski Building & Loan Ass'n. v. Provident Trust Company of Philadelphia, 338 Pa 198, 12 A2d 336 (1940); Williams v. Jefferson Standard Life Ins. Co., 187 S C 103, 196 SE 519 (1938); 3 Merrill on Notice § 1119 (1952).
[4] Carney v. Southland Loan Company, 92 Ga App 559, 88 SE2d 805 (1955); R.J. Goerke Co. v. Nicolson, 5 NJS 412, 69 A2d 326 (1949); Reggiori v. Forbes, 128 NJL 391, 26 A2d 145 (1942); La Rosa v. Nichols, 92 NJL 375, 105 A 201, 6 ALR 412 (1918).
[5] First State Bank of Oakwood v. Edwards, 245 SW 478 (Tex Civ App 1922); Harseim v. Cohen, 25 SW 977 (Tex Civ App 1894). | ae79ed4a04236bc6dd75ba5e1175ecc396a7f6c89635746103c84f5e64d4148f | 1963-09-05T00:00:00Z |
4687c94b-8d68-4ddc-9bf0-7aba388e1002 | Rogers Const. Co. v. Hill | 235 Or. 352, 384 P.2d 219 | null | oregon | Oregon Supreme Court | Reversed July 31, 1963.
Petition for rehearing denied September 24, 1963.
*353 Donald W. McEwen, Portland, argued the cause for appellant. On the briefs were Cake, Jaureguy, Hardy, Buttler & McEwen and John R. Faust, Jr., Portland.
John F. Weisser, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Attorney General, and Lloyd G. Hammel, Assistant Attorney General, Salem.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
REVERSED.
DENECKE, J.
Interpreting the Oregon Highway Use Tax is the problem. The plaintiff road builder contends that the movement of its mobile construction equipment from job to job over public highways is not subject to this tax. The Public Utility Commissioner and the trial court held to the contrary.
The equipment consists of earth-movers, end-dumps, tractors and other similar rubber-tired equipment *354 used in highway construction. Movement within a construction project is not in issue as the statute exempts a highway contractor during the construction period. ORS 767.325(1). It is only movement from project to project that is involved.
The Highway Use Tax applies to all motor carriers, common, contract and private. ORS 767.325(1). Plaintiff admits it is a "private carrier" as that term is defined by statute. ORS 767.015. The tax is assessed upon the basis of weight-miles travelled. ORS 767.330. It applies to every "motor vehicle." The crucial statute is that defining "motor vehicle." ORS 767.010(5) defines the term for the entire Motor Transportation Code. The Highway Use Tax is a part of such code. The definition is as follows:
The italicized words, "or capable of being used," were added by ch 420, § 2, Oregon Laws 1959. It is this addition that causes this litigation.
The Commissioner found that plaintiff's vehicles had never transported persons or property except on construction projects. Plaintiff asserts that none of its vehicles could lawfully transport persons or property on Oregon public roads for the reason that they were oversize and overweight. Defendant did not contravert this assertion and the testimony of a supervisor of the Oregon State Highway Department which licenses special movements on the highways supports the contention. The equipment was not designed to transport persons or property other than the transport *355 of property as a part of construction work, i.e., carriage of dirt or rock, etc.
The position of the Commissioner is that whether or not these vehicles have or can lawfully transport persons and property is immaterial. The vehicles physically are capable of transporting persons or property and that he contends is all the statute requires for vehicles to be subject to the tax. The principal witness, a supervisor in the Commissioner's office, stated plaintiff's vehicles "would [be] capable of carrying to be absurd to carry a crescent wrench."
The legislative history of the 1959 amendment is of no assistance. Plaintiff states its purpose was to clearly establish the Commissioner's right to assess the tax upon trips by vehicles which were travelling empty, but which ordinarily transport persons or property. This may be; however, there is no substantiation in the record.
The Commissioner acted in accordance with his general administrative memorandum promulgated as a result of the 1959 amendment. The memorandum provides that "all movements of empty vehicles capable of carrying a load" shall be taxed; the only exemption, other than those stated in the statute, is of vehicles which had never transported property. This exemption did not apply to plaintiff, as its vehicles transported property on construction projects.
The action of the Commissioner is reviewable pursuant to ORS 756.580. The scope of judicial review is not stated in the statute. The Commissioner concedes the question is one of law, i.e., interpretation of a statute. However, he contends that if the Commissioner's order has "warrant in the record" or a "reasonable basis in law" it must be affirmed although the *356 court may, if initially determining the issue, have decided it differently.
The above-quoted phrases have been used by the United States Supreme Court in affirming administrative determinations involving what are usually termed "law," as distinguished from "fact," questions. Rochester Tel. Corp. v. United States, 307 US 125, 59 S Ct 754, 83 L ed 1147 (1939); Board v. Hearst Publications, 322 US 111, 64 S Ct 851, 88 L ed 1170 (1944). However, as Professor Davis pointed out, in other cases the court has ignored these same phrases and substituted its own judgment and overruled administrative orders which appeared to have "a warrant in the record" or a "reasonable basis in law." 4 Davis, Administrative Law Treatise, § 30.06.
A former chief counsel for the Oregon Public Utility Commissioner wrote in 1 Willamette Law Journal, 222-223 (1960): "Where pure questions of law, for example, those involving the proper construction of statutory language, are involved, no presumption of regularity is accorded PUC [Public Utility Commissioner] findings except in the narrow area of so-called regulatory `expertise.'"
1. There are certain questions which analytically may be designated "questions of law" in which the experience of administrative personnel in the particular field is of material assistance in arriving at a decision. When this type of question is judicially reviewed the court should give deference to the administrative interpretation. The amount of deference will vary depending upon the apparent degree of reasonableness of the administrative decision and the degree to which the problem involves knowledge peculiar to an industry, business, etc. Pennsylvania Co. v. United States, 236 US 351, 35 S Ct 370, 59 L ed 616 (1915), *357 is an example of this. The Interstate Commerce Act prohibited any carrier from giving any undue preference or advantage to any person. The question was whether or not a practice of the railroad was the giving of an undue preference or advantage. The Interstate Commerce Commission found it was an undue preference. The court affirmed, stating that it was a question for decision by the commission.
2. This case, however, does not present a question in which knowledge and experience in the industry affords any advantage. We find it to be that kind of a question of statutory interpretation which a court, by reason of its being constantly presented by such problems, is at least as capable of deciding as an administrative agency.
3. Two principal considerations lead to the conclusion that the tax is not applicable to plaintiff's vehicles. The tax is part of a general statute regulating motor carriers transporting either their own property or the property of others on the state's highways. The declaration of policy in the Motor Transportation Code states: "The business of operating as a motor carrier of persons or property for hire upon the highways of this state is declared to be a business affected with the public interest, and that regulated competition is desirable when it is deemed to be in the public interest." ORS 767.020. The vehicles involved have not and cannot be operated for the transportation of property on the highways. True, the Motor Transportation Code also has as a stated purpose the reduction of wear of the highways and safety on the highways. Plaintiff's vehicles present as much of a wear and safety problem as vehicles transporting property or persons. However, the Motor Transportation Code has only attempted to attack the highway *358 wear and safety problems as these are affected by vehicles connected with the business of transporting property or persons.
4. Secondly, the Commissioner's ruling and the Administrative Memorandum upon which it is based make every motor vehicle subject to the tax unless the statute specifically exempts them or unless they are in the minute class exempted by the memorandum. Under the Commissioner's interpretation of "capable of being used * * * in the transportation of persons or property" all motor vehicles are so capable. However, it seems obvious that the entire Motor Transportation Code and the definition of motor vehicle in the code are not intended to be applicable to all motor vehicles but only to those having a connection with the transportation of persons or property.
An analogous problem was presented the Washington court in Mason-Walsh-Atkinson-Kier Co. v. Case, 2 Wash2d 33, 97 P2d 165. The statute originally provided that those paying a tax on purchases of fuel were to be reimbursed for the tax paid except for taxes paid upon fuel used "in motor vehicles operated or intended to be operated upon the public highways." The law was changed and reimbursements were authorized except for fuel used in motor vehicles "capable of being operated upon a public highway." (Emphasis added.)
The plaintiffs were constructors on Grand Coulee Dam and used huge trucks especially designed for the job. The trucks were oversize and overweight. The state issued special permits to enable them to be driven on the highway from their place of construction, Seattle, to Grand Coulee, several hundreds of miles away. Therefore, the tax collector argued the trucks are obviously "capable of being operated upon *359 a public highway." A majority of the Washington court held "operate," as used in the statute, "contemplates normal, functional operation" and, therefore, these trucks were not "capable of being operated upon a public highway."
We hold that these particular construction vehicles are not "motor vehicles" as that term is used in the Oregon Highway Use Tax.
Reversed. | 8b330265a4ada94adc98c04b26cbd4ffcc6e7aed03087f1f9774c074d0f56f8b | 1963-07-31T00:00:00Z |
27d7bac7-1a93-4306-a581-0bea79ab5325 | Hungerford v. Portland Sanitarium & Benevolent Ass'n. | 235 Or. 412, 384 P.2d 1009 | null | oregon | Oregon Supreme Court | Reversed and remanded September 5, 1963.
Petition for rehearing denied October 8, 1963.
Byron Glade Birch, Portland, argued the cause for appellant. With him on the briefs were Duncan & *413 O'Brien, Virgil Colombo and Frances M. Dudleston, Portland.
William F. Thomas, Portland, argued the cause for respondents. With him on the brief were Hollister & Thomas and Raymond J. Conboy, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED AND REMANDED.
GOODWIN, J.
This is a charitable-immunity case. The only issue is whether the court should now overrule its earlier decisions which conferred upon charitable enterprises immunity from liability for the torts of their servants.
The facts are not remarkable. The plaintiff brought an action for damages for injuries caused by the negligence of a nurse's aide employed by the hospital. We will assume that, for the purposes of this case, the defendant Portland Sanitarium & Benevolent Association is a charitable hospital. Accordingly, if immunity should be law, the hospital would be entitled to its benefits.
Our latest decision fully exploring the problem is Landgraver v. Emanuel Lutheran, 203 Or 489, 280 P2d 301 (1955). The majority of this court was then of the opinion that the charitable-immunity exception to the general law of torts was a settled rule and that it ought not to be changed by the court. The dissenting opinion, BRAND, J., weighed each of the arguments for such immunity with the arguments against it. Immunity was then, and is now, in general retreat elsewhere. Mullikin v. Jewish Hospital Assn. of Louisville, 348 SW2d 930 (Ky 1961), contains a recent *414 review of the cases. The obsolescence of charitable immunity likewise has been well documented by text writers. See 2 Harper and James, The Law of Torts 1667-1675, §§ 29.16, 29.17 (1956); Prosser and Smith, Cases on Torts 722 (3d ed 1962). We conclude that expediency no longer justifies adherence to a dying doctrine.
Inasmuch as we are now of the opinion that the Landgraver case must be overruled, we are confronted with the holdings that this particular change in the law of torts ought to be made, if at all, by the legislature. See, e.g., Landgraver v. Emanuel Lutheran, supra at 493-494; Gregory v. Salem General Hospital, 175 Or 464, 483, 153 P2d 837 (1944). Cf., Note, 31 Or L Rev 78 (1951), and Note, Hospital Liability in the New York Court of Appeals: A Study of Judicial Methodology, 61 Col L Rev 871 (1961).
Accordingly, it is necessary to deal with the issues arising out of both stare decisis and the proper function of this court in evolving the law of torts.
1. It is argued that, once having been of the opinion that a particular reform in the law of torts ought to be made in the legislature, this court is forever bound to remain of that opinion, wrong though it may have been. However, it is neither realistic nor consistent with the common-law tradition to wait upon the legislature to correct an outmoded rule of case law. See Pierce v. Yakima Valley etc. Ass'n, 43 Wash2d 162, 180-182, 260 P2d 765 (1953) (concurring opinion of Grady, C.J.). Nor is legislative silence as instructive as was supposed in the Gregory and the Landgraver cases. Legislative indifference to remedies for private wrongs may be common enough in times when the assembly is occupied with a multitude of matters of grave public *415 concern, but failure to enact a bill is not one of the constitutional methods by which the assembly makes law. Constitution of Oregon, Art IV, § 25. See Hart, Comments on Courts and Lawmaking, in Legal Institutions Today and Tomorrow 40, 46 (Paulsen ed 1959).
As was said by Desmond, J., in a decision which, overruling an earlier case, established the right to recover for prenatal injuries:
2. We must likewise reject the defendant's contention that stare decisis binds us absolutely to the past. The pull of stare decisis is strong, but it is not inexorable. See State v. Mellenberger, 163 Or 233, 260, 95 P2d 709, 128 ALR 1506 (1939), which marshalled the authorities and concluded that, even in a criminal case, if the former decision is shown to be clearly in error it ought not to be followed. And see Woods v. Lancet, supra, where, in answer to stare decisis, the court said:
3. When litigants come into court, they expect the court to apply to their case the best rule of law available to the court. The fact that a rule has been followed *416 for fifty years is not a convincing reason why it must be followed for another fifty years if the reasons for the rule have ceased to exist. Charitable immunity came to Oregon in Hill v. Tualatin Academy, 61 Or 190, 121 P 901 (1912). Its history in this state is reviewed in the dissenting opinion in the Landgraver case.
4. Ordinarily, in this state, as in most others, the growth of the law of private wrongs has been by judicial decision. See, e.g., Cowgill, Adm'r v. Boock, Adm'r, 189 Or 282, 302, 218 P2d 445, 19 ALR2d 405 (1950) (concurring opinion by ROSSMAN, J.), and Keeton, Creative Continuity in The Law of Torts, 75 Harv L Rev 463 (1962). Tort law in 1963 differs from tort law in 1863 for the most part because of the work of the courts. When courts have recognized the need for remedies for new injuries, the remedies have been found. For example, liability-without-fault is imposed upon carefully conducted but hazardous operations employing explosives, Bedell et ux v. Goulter et al, 199 Or 344, 261 P2d 842 (1953), and upon those employing dangerous aerosols, Loe et ux v. Lenhardt et al, 227 Or 242, 362 P2d 312 (1961). To the extent permitted by the state constitution, government is now being held responsible for its wrongs. Vendrell v. School District No. 26C et al, 226 Or 263, 360 P2d 282 (1961). We find no continuing reason for adherence to the immunity rule for charities.
5. Upon trial below, the jury awarded the plaintiff a judgment against the negligent servant, but was instructed to return a verdict in favor of the hospital. The verdict established the fault of the servant and the measure of damages. There is no question that the negligent servant was working within the scope *417 of her employment. It will be proper upon the remand to enter judgment n.o.v. for the plaintiff against the hospital.
Reversed and remanded.
ROSSMAN, J., dissenting.
When the prevailing opinion terminates the exemption of charities from tort liability and subjects them to the same responsibility as industrial enterprises, hospitals will not be the only charities that will bear the brunt of the new order. This court held a half century ago that a charity which was engaged in educational work was immune from tort liability: see Hill v. Tualatin Academy, 61 Or 190, 121 P 901. That decision is today overruled. Let us pause for a moment and observe that that decision recognized liability in favor of the plaintiff upon the part of the negligent servant and every negligent officer and trustee of the charity. That part of the decision is not overruled by today's decision. The holding in the Tualatin Academy case merely refused to apply the doctrine of respondeat superior against the charity. The fact that a charity receives no profit or other advantage from its operations is a good reason for distinguishing it from commercial cases in which the doctrine renders the principal liable for the torts of its employees even though the principal did not participate in the tort. We will presently return to that distinction. There are a score or more of charities in addition to hospitals and educational institutions that will feel the effect of today's decision. That statement is not made to render the decision of the majority difficult, but because it serves to illustrate the position which these dissenting views favor. Some of the many charities which will be affected by the new order of events are *418 the Boy Scouts, the Salvation Army, the YMCA and our numerous children's homes. Each one of them is now liable for the acts of any member of its staff whether he is a volunteer or a paid employee. It is well known that much of the work of organizations such as the Boy Scouts, the Red Cross, and the YMCA is performed by volunteers.
From this day on the rule of respondeat superior will be applied to all charities although in many other phases of our daily activities the principal is not liable, in the absence of statute, for the torts of his subordinates. For example, a public officer, in the absence of statute, is not liable for the wrongs committed by his deputies. Vendrell v. School District No. 26C et al, 226 Or 263, 360 P2d 282, in so holding, quoted the following from Antin v. Union High School District No. 2, 130 Or 461, 280 P 664, 66 ALR 1271:
The following is taken from Restatment of the Law, Trusts, § 402 b:
*419 Since this court has held that neither the relation of master and servant nor that of principal and agent exists between a public officer and his deputy, it is difficult to understand how it can exist between a charity and some good-hearted individual who works in the charity as a volunteer without pay. It is difficult to find a reason why the charity should be held liable in damages for the volunteer's act. The defendant's nurses and assistants served at a financial sacrifice.
The majority speak of legislative "silence" concerning the issue now before us and indicate that possibly "legislative indifference" to it was due to the legislature's "occupation with a multitude of matters of grave concern." As a matter of fact, the legislature has not been indifferent to the issue of the tort liability of charities. The sessions of 1957, 1959, and 1963 were confronted with bills for the repeal of the charities' exemption from tort liability; see H.B. 334 (1957 session); S.B. 131 (1959 session); H.B. 1232 (1963 session); State of Oregon Journals of the House and Senate, 1957, 1959 Legislative Sessions; State of Oregon, Legislative Calendar, 1963 Legislative Session; State of Oregon, Minutes of the Senate Judiciary Committee (1959 Legislative Session); Public hearing on Senate Bill 131, February 24, 1959.
Although as just indicated, three measures have been introduced before the legislature for the repeal of the exemption of charities from tort liability, none has been successful. All failed to attract sufficient support. None of them was enacted into law.
It is seen from the facts just indicated that while this case was pending before this court and we were being urged to overrule our previous holdings (several *420 in number) that recognized in charities exemption from tort liability, the 1963 bill was pending before the legislature and that body was asked to terminate the exemption. The 1963 bill, like its two recent predecessors, was unsuccessful. The legislature declined to adopt it.
This court, however, takes a view this day different from the legislature which adjourned only 90 days ago. It today does what the legislature declined to do that is, it terminates the charities' immunity. Thereby there occurs a clash in the points of view of the two departments of the state's government that are concerned with what the law of this state should be. I readily concede that the majority has a legal right to adopt the course which it has taken, but I do not believe, for reasons which I will presently state, that it should do so.
Had the legislature terminated the charities' immunity from tort liability, its enactment would not have had any retrospective operation. It would not have revived any old claims. It would have affected only claims that occurred after the measure was adopted. In short, it would have operated only prospectively. Article IV, § 28, Constitution of Oregon, says that the legislature's statutes shall take effect "ninety days from the end of the session." But, when this court pronounces the law upon a subject under scrutiny, its utterances take effect at once. The court does not make the law; it merely finds it. Therefore, when it pronounces it, it must necessarily be assumed that its pronouncement represents the law as it always was. Accordingly, when the majority this day holds that there is no immunity upon the part of charities from tort liability, its holding is retrospective as well *421 as prospective. All claims against charities are affected except those barred by the statute of limitation.
The problem of immunity from tort liability is more difficult than the proponents of repeal indicate. The state and many of its counties maintain hospitals. The patients in them are numerous. Very likely, they far outnumber those in private hospitals. Although many of the state's patients suffer from mental disorder, those who suffer from that malady receive hospital treatment for their other afflictions, and one of the state's larger hospitals accepts patients for a wide range of ailments. The state also conducts many educational institutions. The students who attend them greatly exceed in number those in the private schools. Some of the state's institutions are the University of Oregon, Oregon State University, and Portland State College. There are also the large number of high schools and grade schools.
Although the majority today terminate immunity from tort liability for our private hospitals, such as the defendant, and likewise terminate the exemption from tort liability of our private colleges, immunity from liability remains for all of the state's institutions. The state cannot be sued: Vendrell v. School District No. 26C et al, 226 Or 263, 360 P2d 282.
If immunity from tort liability is to be ended for the private institutions, it should also be terminated for those operated by the state. There should be no discrimination. When the state ends the immunity for the private institutions and requires them to bear the resulting burden, it should impose a similar requirement upon itself. The state is far more capable of bearing the burden than are the private institutions. The legislature has the power to impose the burden: Constitution of Oregon, Article IV, § 24; and Vendrell *422 v. School District, supra. The discrimination in favor of the state that will result from today's decision cannot be justified.
In short, the problem resolved by the majority today is part of a much larger issue. The legislature, and not this court, should solve it. When the 1963 legislative session adjourned 90 days ago and declined to repeal the charities' immunity from tort liability, it settled the issue. No one contends that anything has happened in the last 90 days which requires this court to take a course different from that selected by the legislature. Therefore, I believe we ought to abide by the legislature's decision and not overrule it in addition to a long line of our own decisions. We must not compete with the legislature in law making.
Finally, I am by no means persuaded that in the instance of a private charity the doctrine of respondeat superior should render the charity liable for the torts of a servant unless the charity was somehow at fault. The doctrine of respondeat superior is not above criticism although it performs the commendable task of subjecting the industrial master to liability for the torts of his servant. But in those instances the master has derived a profit or gain in the operation. In an instance such as the one before us, there has been no profit none was ever expected and the law permitted none. Therefore, the very foundation for the doctrine respondeat superior is absent from this case.
I dissent.
PERRY, J., joins in this dissent. | 4eed295c772da9c206f1a920acb3878b0fec3200e48cd69d7cbcf78499330867 | 1963-09-05T00:00:00Z |
76e5f383-9f20-4032-b831-adae79be52da | Klein v. Montgomery Ward & Co. | 235 Or. 315, 384 P.2d 978 | null | oregon | Oregon Supreme Court | Affirmed September 5, 1963.
*316 Carl R. Neil, Portland, argued the cause for appellant. On the brief were Carl R. Neil, Jerard S. Weigler, Krause, Lindsay & Nahstoll, Loyalty Building, Portland 4, Oregon.
A. Allan Franzke, Portland, argued the cause for respondent. On the brief were A. Allan Franzke, James F. Spiekerman, Mautz, Souther, Spaulding, Kinsey & Williamson, Board of Trade Building, Portland 4, Oregon.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the plaintiff, Emeline B. Klein, from a judgment which the circuit court entered in favor of the defendant, Montgomery Ward & Co. The action which ended in that manner was instituted by the plaintiff to recover damages for an injury which she suffered when she fell down a flight of four steps in an entrance way of the defendant's Portland store. The challenged judgment was entered after (1) the defendant had moved unsuccessfully for a directed verdict; (2) the jury had returned a verdict for the plaintiff; and (3) the defendant's motion for the entry of judgment in its favor, notwithstanding the verdict, had been allowed.
The plaintiff presents two assignments of error. The first challenges the ruling which entered judgment in the defendant's favor notwithstanding the verdict, and the second questions a ruling which sustained the defendant's objections to the reception in evidence of a Portland ordinance which provides in the instances *317 to which it is applicable that handrails must be placed not farther apart than 66 inches upon staircases that are 88 inches or more in width.
The complaint made several charges of negligence but only two of them were submitted to the jury. Appellant's (plaintiff's) brief states, "The Court, however, submitted to the jury only two of plaintiff's specifications of negligence, relating to the condition of the step and, under the common law, the lack of a middle handrail." The plaintiff does not contend that error was committed when the other specifications were not submitted to the jury.
November 19, 1960 the plaintiff and her husband drove their automobile to the defendant's store where the plaintiff intended to do some shopping. After the plaintiff's husband had parked the car in the defendant's parking lot, the two proceeded to enter the store through its easterly entrance. The latter was slightly more than 30 feet broad and consisted of a series of seven doors. When a customer had gone through one of the doors, he was in an area 30 feet long and 42 inches broad. We will deem it a vestibule. If after the customer had walked ahead 42 inches, after going through the door, he had crossed the vestibule and was upon the upper of the flight of four steps. When he descended the steps, he was upon the store's first floor. The plaintiff immediately before accident had taken, in part, the course just described; that is she had gone through one of the doors, had walked ahead 42 inches and had come to the top of the four steps. There something went wrong and she fell down the stairs.
Upon direct examination by her attorney, the plaintiff *318 testified that she did not know what caused her to fall. Her testimony was:
The plaintiff testified that her health had been good. She operated a small coffee shop. At the time of her mishap the plaintiff was wearing "walking shoes," so she swore, and added that they had "a full heel."
On each side of the broad vestibule area and staircase, there was a short wall at right angles to the stairs. Fastened into each wall was a handrail for the use of anyone who went up or down the stairs at that point. Besides those two handrails there were four more in this flight of steps. They occurred at intervals of 81 inches.
The plaintiff did not enter the store through a door that was adjacent to the vestibule walls, but through a door which was near the center of the entrance. She testified that she had been in the store many times, but had used this entrance "seldom."
The door through which the plaintiff entered was a double door. Its width was six feet. Each of its two component doors was, therefore, three feet wide. The two component doors swung open from their middle, and opened outwardly. Each was fastened on its far side by hinges to a column-like form that stood immediately adjacent to that side of the door, and separated the latter from the next set of doors.
On each side of the double door through which the plaintiff entered there was one of the handrails that *319 we mentioned. The handrail was fastened at its upper end to the column that stood adjacent to the door. The handrail was about 30 inches above the vestibule floor. It extended from the column, parallel to the vestibule floor until it reached a point above the upper step, where it bent downward at the same angle of the steps until it was above the lowest of the four steps. There it turned directly downward and terminated in that step.
The distance between the handrails which stood at the sides of the door through which the plaintiff entered the store was 81 inches. That, as we have said, was the distance that separated all of the handrails. Thus when the plaintiff passed through the door there was a handrail to right and another to her left. The plaintiff did not mention through which of the two doors she came. However, she testified that neither handrail was within reach. We have mentioned that the double door through which the plaintiff entered opened from its middle.
The plaintiff's husband held the door open while she walked through. Observation teaches that one who holds a double door open for another, holds open only one of its two component parts. Therefore, no one enters through the center of a double door. He enters to the right or to the left of the center, depending upon which of the two component doors was open. Since the total distance between the handrails was 81 inches, the plaintiff upon entering through the double door must have been within arm length of a handrail. Had she moved slightly to the right or to the left she could have grasped a handrail. She made no effort to do so. She knew of their presence. She and her husband were the only people in the entrance way when she fell.
*320 In the following testimony the plaintiff described her fall:
November 19, 1960, the day of the accident, was a very rainy day. As we noticed through quotation of the plaintiff's testimony her clothing was "wet and muddy" after the fall. We observe, however that after the plaintiff had used those words she added "from down there on the floor." Possibly she meant that the water and mud were picked up by her garments "from down there on the floor." The plaintiff, who is the only one who described the accident and its incidents, did not testify that there was any water, mud or other substance on the steps or the floor of the vestibule.
She testified:
The plaintiff's testimony just quoted warrants a belief that she noticed no water, mud or other material upon the steps or upon the floor of the vestibule. It will be noticed that although she "glanced" at the place upon the steps where her foot was when she fell she noticed no foreign material there. We have stated that no one else testified upon this subject. The defendant presented no evidence. The plaintiff's husband did not testify. Accordingly, if the water and mud that were upon the plaintiff's garments after the fall, were picked up "from down there on the floor" there is no evidence in the record that the steps, especially not the one upon which her fall started, contained any water, mud or other substance. But if the water and mud were picked up from the steps, the record does not indicate how long they were there or that the defendant knew of their presence.
The edge of each step in the flight of four was protected by a metal strip, which Charles G. Davis, an architect who testified for the plaintiff, termed an "extruded steel nosing." Mr. Davis said that the "nosing" was three inches wide and that its purpose was "to provide a wearing as well as a non-slip surface." He thought that water upon the nosing could cause it to become slippery. Mr. Davis had not seen *322 the entranceway and the steps until a year and a half after the plaintiff's fall. He testified that on the day of his visit to the defendant's establishment the metal strip was "somewhat worn." He did not mention the degree of wear to which it had been subjected, nor did he or any one else say that its condition of "somewhat worn" lessened its effectiveness or required its replacement. No one mentioned the condition of the metal strip at the time of the fall. Mr. Davis was the only witness who testified concerning the strip.
The complaint alleges that the defendant was negligent "in not constructing a middle handrail down said stairway at the center of said entrance doors to permit customers and other persons attempting to descend the same to conveniently make use thereof, and prevent their falling down."
We have mentioned that the present handrails are separated from each other by 81 inches of space. If a middle handrail were added they would be separated by only 40 and one half inches of space. If a middle one were built it would stand directly in front of a person who came through the door.
Plaintiff's witness, Davis, testified that the spacing of handrails at intervals of 81 inches was "somewhat greater than current practice." He stated that current practice favors five and one half feet. Mr. Davis testified that a handrail placed in the center of the space immediately in front of the double doors might create dangers and testified, "If I were faced with the problem, I personally would find another solution than to put a rail in the middle."
The complaint alleges that January 26, 1956 the City of Portland enacted an ordinance which set forth minimum standards for the construction of stairways in buildings. It required "every stairway more than *323 eighty-eight inches (88") in width shall have intermediate handrails dividing the stairway into portions not more than sixty-six inches (66") in width." The ordinance specified that in the construction of new buildings compliance with the ordinance was mandatory. It contained provisions applicable to additions, alterations and repairs of existing structures. The defendant's building was constructed many years prior to January 26, 1956.
After the ordinance was enacted and before the plaintiff's injury was suffered, the defendant made some changes to the door openings in its elevator shafts. The plaintiff claims that that work required the defendant to conform to the demands of the staircase ordinance.
1. Some of the sections of the staircase ordinance require a building owner, who alters or repairs his building, to comply with its demands if the cost of the work equals the percentage of the value of the building that is set forth in the ordinance. Since neither the cost of the alterations nor the value of the building is disclosed by the record, these sections of the ordinance have no application to this case. Other sections of the ordinance require an owner who makes a structural alteration or addition to his building to comply with the staircase ordinance. The building inspector in the city's employ who testified did not deem that the alterations which were made pertaining to the elevator shaft were structural. The building inspector's testimony is the only evidence upon the subject.
2. The plaintiff was an invitee when she entered the defendant's store, and it was the duty of the defendant to have its premises in a reasonably safe condition for the reception of its customers. Miller v. Safeway Stores, 219 Or 139, 312 P2d 577, 346 P2d 647, *324 and Lee v. Meier & Frank Co., 166 Or 600, 114 P2d 136.
The evidence reviewed in preceding paragraphs renders it impossible to say that there was mud or water upon the steps; it is especially impossible to say that there was a foreign substance upon the top step where the plaintiff placed her feet immediately before her fall. She conceded, as we have seen, that she had glanced at that spot before her mishap occurred and had seen nothing there. Since she saw nothing, it is impossible for us, who did not have the benefit of a glance, to take a contrary view. Hers was the only testimony upon the subject. But, if we assume that there was mud or water upon the steps, we face the situation that the record contains no evidence whatever showing how long the conjectured material was there. Cowden v. Earley, 214 Or 384, 327 P2d 1109 holds that an invitee who claims that he slipped upon a foreign substance that was upon the floor or stairs of the owner's structure must establish:
Judgment for the plaintiff in the case was reversed in part because of the absence of evidence that the defendant had knowledge of the foreign substance or should have known of it.
In Gill v. Meier & Frank Co., 208 Or 536, 303 P2d 211 in which the plaintiff claimed that her foot slipped *325 upon a watery substance on the floor of the defendant's mercantile establishment, this court said, "It was not required to have some one mop up after each customer who entered." In that case, as in this, the plaintiff claimed that the day had been one of heavy rainfall.
The plaintiff depends much upon Lyons v. Lich, 145 Or 606, 28 P2d 872, and Ritter v. Beals, 225 Or 504, 358 P2d 1080. We remain satisfied with the holdings in those two cases and with the principles of law that they employed, but do not believe that their facts are sufficiently similar to those now before us to warrant us in appropriating space to show the dissimilarity.
It is our belief that the plaintiff did not care for the help that a handrail can give. She had confidence in herself and was neither aged or infirm. A handrail was immediately at hand, if, upon entering the store, she wished to use one. At most, a slight movement to the right or to the left would have placed her at the handrail. But, she made no effort to grasp one.
In Laird v. T.W. Mather, Inc., 51 Cal 2d 210, 331 P2d 617, the handrail upon the steps in the defendant's store that ran to the basement terminated a step and a half short of the full length of the stairway. The plaintiff, a woman 79 years of age, undertook to descend the stairs and used the handrail for support. At least 50 per cent of the defendant's customers were over 65-70 years of age. When the plaintiff reached the end of the handrail, she assumed that she had come to the end of the stairs and stepped forward. In so doing, she took a bad fall. In sustaining a judgment for the plaintiff, the court said:
3. If the plaintiff upon entering the defendant's store had wished for the security of a handrail she would have reached for one. She would not have testified, as she did, that she was unable to account for her fall. We do not believe that the placing of the handrails was the cause in fact of the plaintiff's injury.
The assignments of error are without merit. The challenged judgment is affirmed. | 1f9e6013ca5b1f09e2d6b264577c04365ea55952a1214bb34249e3e3f51ed7cc | 1963-09-05T00:00:00Z |
3c796ee0-af7a-4d31-97cb-db1f9caf1e2a | IL Logging Co. v. Mfgrs. & Whlse. Ind. Exc. | 202 Or. 277, 275 P.2d 226 | null | oregon | Oregon Supreme Court | Affirmed July 13, 1954.
Petition for rehearing denied October 13, 1954.
*279 Robert F. Maguire and Howard K. Beebe, of Portland, argued the cause for appellant. With them on the brief were William E. Walsh, of Coos Bay, and Maguire, Shields, Morrison & Bailey, of Portland.
George Black, Jr., argued the cause for respondent. On the brief were Black & Kendall, of Portland, and McKeown & Newhouse, of Coos Bay.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the plaintiff from a declaratory decree of the circuit court, which held that a policy of liability insurance issued by the defendant to the plaintiff did not protect the latter against the liability which it incurred June 21, 1947, when a motor vehicle operated by the plaintiff, and in which some of its employees were being transported from their place of employment to their living quarters, overturned, resulting in the death of some and in the injury of others. Following the misadventure, many actions were filed against the plaintiff. The challenged decree was entered after trial. The plaintiff submits 19 assignments of error.
*280 The policy of liability insurance which the defendant issued to the plaintiff bound the defendant
The policy also contained this provision:
The defendant contends that the exclusion clause just quoted rendered the defendant nonliable for the losses which the plaintiff suffered June 21, 1947. The plaintiff takes the opposite position. The resulting issue is the principal one submitted by this suit.
The first and fifth assignments of error read as follows:
We will now consider the first of those assignments of error and, ancillary to it, the second. At the time of the accident which caused the injuries and deaths that gave rise to the actions against the plaintiff, the latter was engaged in logging operations in rough, *281 rugged country. Many years ago when it began its operations, the timber was within walking distance of the camps which the plaintiff maintained for its employees, but, as more and more trees were felled, the distance between the areas where the men worked and where they lived increased to such an extent that the plaintiff faced a transportation problem. At the time of the accident which we have mentioned some of the plaintiff's loggers lived in a camp six miles from where they worked and some in homes 25 or 30 miles from their work. When the plaintiff first faced the transportation problem, it rented to the men a truck which they used in going to and from their work. The men operated the vehicle through an employees' association, but, due to the recurrent turnover in their ranks, the maintenance of the association proved difficult. Eventually the plaintiff resorted to the means of transportation which it employed when the accident which we have mentioned took place. The method which it adopted was to haul the men back and forth in busses, known as "crummies".
Mr. John L. Hawkins, plaintiff's manager, explaining in part the evolutionary process which led to the plaintiff's inauguration of bus service, gave this testimony:
According to Mr. Hawkins, the plaintiff had eight busses which were used solely for the transportation *282 of the men. The one which brought death and injury to its occupants carried 18 men at the time of the misadventure. The plaintiff owned the busses, paid the drivers and all other expenses. No charge was made to the men who rode in the busses. When a bus became disabled, the plaintiff at times substituted a vehicle which the witnesses termed a flatbed.
The evidence warrants a belief that the plaintiff supplied the bus service to its men because it was good business for it to do so. For example, Mr. Hawkins made this statement:
A belief is justified that the busses were the only practical means whereby the men could go to and return from the place of their employment. One of the employees gave this testimony:
The following is taken from the testimony of one of the crummy drivers:
We do not believe that the foregoing and other testimony to like effect indicating that the crummies were the only practical means of going back and forth is questioned by the plaintiff.
The record indicates that when men were taken into plaintiff's employ they were told, in the event they inquired concerning the subject, that the plaintiff furnished transportation to and from the woods. For example, the plaintiff's foreman, who had charge of the hiring of the men, testified:
The crummies, their safety, and grievances arising out of them were at times features of negotiations between the plaintiff and the labor union which represented its employees. One witness swore that a labor contract negotiated by the union granted the men the right to free transportation.
*284 At the place where the accident which underlies this suit occurred, the bus was running upon a private logging road which the plaintiff had constructed and over which it had exclusive control. Access to the road was controlled by a gate and a watchman in the plaintiff's employ. Parts of the road were planked and other parts were dirt. It was a single-lane road although at places turnouts were provided so that in the event a log truck met another vehicle, such as a crummy, the two could pass. The following part of the findings of fact is fully justified by the evidence:
The accident under review occurred upon a severe grade and happened when the vehicle was returning the men to their homes at the close of the day's work. Somehow it escaped from the driver's control, plunged over an embankment and overturned. Several of the men were killed and many were injured.
The wages of the plaintiff's employees started when they reached the place of their work in the woods and stopped when the whistle blew at the landing, except for men who were deep in the woods. Those few were paid for walk-out time. The men who rode in the busses were not paid for the time so spent and performed for the plaintiff no duties while riding.
The findings of fact state:
The findings of fact also state:
Another finding declares the following:
On or about June 24, 1947, the plaintiff demanded that the defendant assume liability under its policy of insurance and notified defendant that, in the absence of assumption of such liability, the plaintiff would negotiate settlement. June 25, 1947, the defendant communicated to the plaintiff its denial of liability under its policy and claimed that any loss to or liability *286 of plaintiff resulting from the accident came under the exclusion clause which we have quoted. Still later the actions which we have mentioned were filed. One of them which went to trial resulted in a verdict and judgment against the plaintiff in this case. Thereafter the other claims were settled. The foregoing suffices as a statement of the controlling facts.
By reverting to the paragraph of this opinion which quotes from the exclusionary clause of the policy of insurance issued by the defendant to the plaintiff, it will be noticed that the policy does not provide protection for the plaintiff if injury was incurred by "any employee of the Insured while engaged in the employment of the Insured". The parties, in well written briefs, have called to our attention a wealth of authority which bears upon the construction of the exclusion clause.
Lamm v. Silver Falls Timber Co., 133 Or 468, 277 P 91, 286 P 527, 291 P 375 (appeal denied 282 US 812, 51 S Ct 214, 75 L ed 727); and Varrelman v. Flora Logging Co., 133 Or 541, 277 P 97, 286 P 541, 290 P 751 (appeal denied 282 US 813, 51 S Ct 214, 75 L ed 728), presented facts substantially similar to those in the case at bar. They were decided 24 years ago. Each of the plaintiffs in those cases was employed in a logging camp and each was injured while being transported by his employer upon the employer's logging railroad. Since the Lamm and Varrelman cases were decided, log truck roads have gained favor over logging railroads. In those cases the logging railroad was the most practical means which the workman had for going back and forth between his place of employment and the nearby towns where he purchased his clothing, sought recreation and attended to his other needs. Both of the employers, defendants in *287 those cases, permitted their employees, as incidents of the contract of employment, to use the logging railroad as their means of transportation. Succinctly stated, the two decisions held that, since the men were injured upon the employer's premises and by hazards to which their employment subjected them, each was injured in an "accident arising out of and in the course of his employment", as that phrase is used in § 102-1752, OCLA (ORS 656.152). In reaching its result, the court sought to give to the employees the coverage for industrial hazards which is contemplated by workmen's compensation legislation.
The holdings in the Lamm and Varrelman cases appear to warrant a belief that if compensation had been sought from the industrial accident fund (§ 102-1735, OCLA, ORS 656.452 and 656.466) for the unfortunate mishap which occurred June 21, 1947, and if the employer [this plaintiff] had been a contributor to the fund, an order would have been entered awarding compensation.
When an employee of a contributor to the industrial accident fund sustains an injury and seeks compensation from the fund, he must show that his injury was the result of an "accident arising out of and in the course of his employment". As we have seen, the Lamm and the Varrelman decisions held that injuries sustained in accidents closely paralleling the instant one arose out of and in the course of the workman's employment.
But the plaintiff points to the fact that the exclusionary clause of the policy of insurance which the defendant issued does not employ the language of the workmen's compensation law. It argues that the words "engaged in the employment of the Insured" found in the policy do not mean the same as "arising out of *288 and in the course of his employment", as those words occur in the workmen's compensation law. According to the plaintiff, the unfortunate occupants of the crummy had finished their day's work and were no longer "engaged" in the plaintiff's employment when they entered the vehicle. They were members of the common public when the casualty occurred, so the plaintiff insists. In support of its claim that the words of the exclusionary clause are not the equivalent of "arising out of and in the course of", the plaintiff cites Francis v. Scheper, 326 Mich 441, 40 NW2d 214, and B. & H. Passmore M. & R. Co. v. New Amsterdam Casualty Co. (10 Cir), 147 Fed2d 536. It believes that the Lamm decision supports its view. The plaintiff acknowledges that Lumber Mutual Casualty Co. v. Stukes (4 Cir), 164 Fed2d 571, takes a position contrary to the holdings in the Francis and Passmore decisions. The Passmore decision was written by Judge Phillips and the Lumber Mutual by Judge Parker. The Lumber Mutual decision cited the Passmore opinion but declined to follow it. It indicated that "confusion in the law" would result from efforts to distinguish between the phrase used in exclusionary clauses and those in workmen's compensation laws. The briefs of the parties give much space to the four decisions just mentioned. We will now examine those decisions, not only for the purpose of determining whether they assigned different meanings to the language of the exclusionary clauses and those of workmen's compensation acts, but also for the purpose of ascertaining the legal principles which guided the courts in reaching their conclusions.
In the Francis case, the plaintiff was a painter whose work took him to various places. His employer's name was Houck. The plaintiff was injured *289 while riding home, at the close of the day's work, in a truck which Houck owned. Houck had agreed, as an incident of the contract of employment, to transport the plaintiff to and from his work. The mishap occurred while another of Houck's employees was driving the truck. The plaintiff recovered judgment against Houck and, upon the latter's failure to discharge the the judgment, instituted garnishment proceedings against Houck's insurer. That turn of events resulted in the decision now under review. The policy of insurance excluded coverage for "bodily injury to or death of any employee of the insured while engaged in the employment other than domestic of the insured". The insurer, as garnishee, in arguing that the plaintiff, while riding home in Houck's truck, was "engaged in the employment" of Houck, depended in part upon the holdings in compensation cases in which courts have ruled that a workman, injured while availing himself of transportation furnished by his employer, received his injury in an accident which arose out of and in the course of the employment. The plaintiff, upon the other hand, stressed the facts that (1) his injury befell him after the close of his day's work; (2) he was at liberty to go home by any means that he preferred; (3) he was not paid for the time spent in traveling home; and (4) he had no duties to perform for Houck while he was being transported. According to him, he was merely collecting part of his pay [his ride home] when he was injured. The court, in holding that the policy's exclusionary clause did not bar the plaintiff, declared that provisions such as "arising out of and in the course of his employment" found in workmen's compensation laws receive liberal construction because measures of that kind are remedial in nature, but that ambiguous terms such as "engaged *290 in the employment" which occur in exclusionary clauses of policies of liability insurance are strictly construed against the insured. In support of its holding it cited B. & H. Passmore M. & R. Co. v. New Amsterdam Casualty Co., supra. It held that "engaged in the employment" means active in the work which the plaintiff was employed and paid to perform.
We now turn to the Passmore decision. As we have stated, it was written by Circuit Judge Orie L. Phillips. Circuit Judge Huxman concurred and Circuit Judge Bratton dissented. The facts in the Passmore case were substantially similar to those in the case just reviewed. In the Passmore case, the employee, whose name was Little, lost his life while riding home at the close of his day's work in his employer's truck. The employer, a corporation entitled B. & H. Passmore M. & R. Co., was engaged in the roofing business and had a shop in Oklahoma City. The nature of Passmore's work required Little to go to various places in covering structures with roofing. On the day of the fatality Little had worked at a place nine miles from Passmore's shop. Little frequently drove his own automobile to and from the places where he performed his work, but the trial court found that, by implication, he was entitled to transportation. He was paid upon an hourly basis and received no pay while going to or returning from the place of his work. Upon the death of Little the latter's widow instituted an action against Passmore for damages upon charges of negligence. Passmore thereupon demanded that New Amsterdam Casualty Company, which had issued it a policy of liability insurance, defend the action. A provision of the policy follows: "This policy does not apply: * * * to bodily injury to or death of any employee of the insured while engaged in the business, *291 other than domestic employment of the insured,". The insurer denied liability and presently instituted a suit for a declaratory judgment as to the rights and duties of the parties. The trial judge sustained the insurer's position and held that under the exclusion clause Little was an employee engaged in his employment at the time of the fatality. Upon appeal, the Circuit Court of Appeals at first affirmed the trial court's ruling, but later, upon rehearing with Judge Bratton dissenting, withdrew its decision and reversed the trial judge. Its final opinion spoke of the case as "a borderline case". In reversing itself, it employed the reasoning which was later adopted by Francis v. Scheper which we reviewed in the preceding paragraph. The decision upon rehearing, written by Judge Phillips, held that the words of the policy "engaged in the business" mean that the individual whom the insurance company wishes to exclude must have been "active" in the business of the insured at the time of the accident, and that Little's situation as a passenger did not suffice. The opinion stated that workmen's compensation legislation receives liberal construction, whereas policies of insurance are construed in favor of the insured. It commented upon the fact that courts, in seeking the meaning of contracts, endeavor to discern the real interest of the parties, that is, their mutual understanding, but that since statutes are devoid of the element of mutual understanding, their construction presents only the problem of giving effect to the intention of the legislature. The court did not expressly state that the terms "while engaged in the business * * * of the insured" and "arising out of and in the course of his employment" do not mean the same, but it is clear that since the one group appears in a policy of insurance and the other in a statute, *292 it attached different consequences to their use. The opinion cited, in support of its holding that Little was not engaged in the business of Passmore at the time of the casualty, Green v. Travelers Insurance Co., 286 NY 358, 36 NE2d 620, Elliott v. Behner, 150 Kan 876, 96 P2d 852, and State Farm Mutual Auto Ins. Co. v. Skluzacek, 208 Minn 443, 294 NW 413. In the Green case, the injured workman was a berry picker whose contract of employment, neither by express words nor by implication, entitled him to transportation. At the time of his injury he was on his way to the berry fields in his employer's truck. The decision said:
The policy of insurance issued by the defendant excluded liability to "any employee of the insured while engaged in the business of the insured." The decision affirmed the judgment of the trial court against the insurer. Two members of the court dissented. In Elliott v. Behner, one Albert Elliott, whose death while riding in a truck driven by the defendant was the subject matter of the case, was an employee of Montgomery County which was the owner of the truck. The truck was used for transporting county employees from place to place. The men were under no duty to ride in it and when they availed themselves of the privilege of being conveyed home in it at the close of the day's work, they paid no fare. The trial judge found that conveyance in the truck was an implied condition of the contract of employment, but the Supreme Court took no sides upon that issue. The action which led *293 to the decision under review was not filed against the county but against the employee of the county who drove the truck. The fatality occurred when the defendant was driving the truck home at the termination of the day's work. After judgment had been recovered and the defendant had failed to satisfy it, a writ of garnishment was levied upon the Employers Casualty Company which had issued a policy of insurance to the county. The policy named as the "assured" not only the county but also "any other person * * * while using such automobile * * * provided that such use is with the permission of the named Assured". The exemption clause contained this phrase, "while engaged in any business or occupation of the Assured". The trial court entered judgment against the garnishee. With two members dissenting, the appellate court affirmed the judgment. The fact that the defendant in the negligence action was not the employer but the driver of the truck seems to indicate that the liability which was invoked against the insurer was under the public, as distinguished from the employer, clauses of the policy. The decision said: "The trip home in the truck was no part of his employment." In State Farm Mutual Auto Ins. Co. v. Skluzacek, one of the defendants, Skluzacek, was a farmer who had hired the other defendant, Sibell, a 16 year old boy, and some other boys to weed an onion field. Upon an occasion when Skluzacek was about to drive his truck from his home to the onion field, a quarter of a mile distant, the boys jumped on the truck to get a ride. After the truck had reached the field and the boys had alighted, the truck bumped into Sibell. The plaintiff had issued a policy of insurance which denied protection "for bodily injury to any employe of the insured while engaged in the business of the assured."
*294 The trial judge found
The decision under review was based upon a suit for a declaratory judgment which the insurer had filed. The decree of the lower court was affirmed.
It will be observed that in the Green and Farm Mutual cases, the injured persons were not entitled to transportation as a part of their contracts of employment. In the State Farm Mutual case, the injured boy merely helped himself to a ride. In the Elliott case, the defendant was not the employer.
We now return to the Passmore decision. We have taken note of the rules of construction which it employed and of the three decisions which it cited in its support. The opinion declined to hold that the term "while engaged in the business * * * of the insured" has the same meaning as "arising out of and in the course of his employment." In expressing itself, the court said:
We come now to Lumber Mutual Casualty Insurance Co. v. Stukes a suit for a declaratory judgment. Although an ancillary issue which the suit developed *295 must be mentioned, in all essentials the case was a counterpart of the Passmore suit. In the Lumber Mutual case, one Marshall, who owned a truck and to whom the plaintiff had issued a policy of liability insurance, was engaged in the roofing business. The policy covered the truck with an omnibus clause which defined the word "insured" as including "any person while using the automobile * * * provided the actual use of the automobile is with the permission of the named insured." The policy's exclusion clause provided that coverage did not apply to "bodily injury to or death of any employee of the insured while engaged in the employment." One Timmons put on the roofing under the contracts which Marshall obtained. Timmons performed his work with the help of several laborers, one of whom was Eugene Stukes. Timmons, with Marshall's approval, carried the laborers to and from their work in Marshall's truck. Upon the occasion which resulted in the case under review, Timmons, while driving the truck home at the close of the day's work, collided with another vehicle and Stukes was killed. After the administrator of Stukes' estate had filed an action against Marshall to recover damages for the death, the plaintiff [insurance company] instituted the suit under review to obtain a declaration of rights and duties. The administrator of Stukes' estate, as a part of his effort to prove that Stukes was a passenger while riding in the truck, and not an employee, presented evidence that three per cent of Stukes' wages was deducted for transportation. Marshall admitted that he made the deduction, but, according to the decision, the amount "was in reality deducted to pay unemployment insurance, which the South Carolina statute forbid an employer to deduct from an employee's wages." The trial court entered *296 judgment for the defendant upon a directed verdict. The judgment was reversed by the Circuit Court of Appeals in the decision now under review. The decision of the latter court, written by Judge Parker, took note of the fact that under the evidence conflicting inferences could be drawn concerning Timmons' status. One inference would deem him an independent contractor, the other as Marshall's foreman. The decision stated that it was clear that Marshall paid the laborers their wages and made the bookkeeping entries. The court held that if Timmons was Marshall's foreman, as the plaintiff argued, Stukes was clearly the employee of Marshall. But, on the other hand, if Timmons was an independent contractor, then he [Timmons] was an additional insured within the purview of the provision of the policy, which reads: "Any person while using the automobile * * * with the permission of the named Insured". If Timmons was an independent contractor, and if Stukes was his employee, the policy of indemnity insurance would be available to Timmons. Accordingly, it was necessary to determine whether when Stukes lost his life he was "engaged in the employment" of his employer, regardless of whether the latter was Marshall or Timmons. Thus we see that the case presented the same basic issue as the Passmore case. The decision held that "the purpose of the exclusionary clause is to limit coverage to liability for injury to members of the general public and to exclude liability to employees of the insured." In holding that Stukes was engaged in his employment at the time of the fatal mishap, the decision said:
The Lumber Mutual decision, written by Judge Parker and the Passmore decision, which came from Judge Phillips, reached conclusions opposite to each other. Upon first reading the two decisions appear not to have employed the same rules. Judge Phillips concerned himself largely with the familiar rules that govern the construction of writings. He held that compensation legislation, being remedial in nature, should be liberally construed in favor of the workman and that exclusionary clauses in policies of insurance should be strictly construed against the insurer. Judge Parker was also concerned with the rules that govern the construction of writings, but approached construction from a different angle. He seemingly took as his polestar a belief that the purpose of exclusionary clauses is "to limit coverage to liability for injury to members of the general public and to exclude liability to employees of the insured." Thus he tried to discern *299 the actual purposes for which employers obtain insurance of that kind and the problem which they face. Having taken that view of the objectives of the exclusion clause, Judge Parker proceeded in a practical manner to determine whether a workman, who rides home in a conveyance provided by the employer as a part of the contract of employment, was still a workman "engaged in the business" of the employer while on his way home. We said that he proceeded with the inquiry just mentioned in a practical way, for he spoke of the constant necessity that courts face of not losing sight "of the substance of the relationship in attempting to apply rule of thumb distinctions." Judge Phillips also saw that hard facts, rather than definitions, frequently settle issues of the kind that the two cases presented, for he said: "Under certain particular situations there would be no doubt that the employee either was or was not engaged in the business of his employer." He termed the case before the court as a "borderline case." The rules of construction which Judge Phillips employed are not of statutory rank. They are guides which experience has shown generally lead to the right result but which may be ignored when the record furnished the court with better indices to the party's intentions. It seems clear that Judge Parker believed that the general purposes for which an employer obtains insurance protection constitutes a superior guide to the meaning of the policies. Although the issue which underlay the two decisions, when expressed in legal terms, takes the form in which the two decisions cast it, yet an employer who faces the problem of procuring protection for himself against potential damage actions which may be instituted by his employees and other protection against suits which members of the public may file, very likely would *300 express the problem in a different way. Possibly an employer regards his relationship with his employees, whether they are in the shop actively running a machine or in a conveyance which he owns and in which he daily takes them to and from work, as very different from his relationship with the common public. He may feel that when the men are in the bus their status is no different from that which they hold when they are in other parts of his plant which he has provided for their convenience and for the additional purposes of promoting better relationships and of stimulating production. Few plants contain nothing except the machinery of production, and it is rare that an employee keeps his nose to the grindstone for the entire day. Many plants include such facilities as lavatories, drinking fountains, lunch rooms, parking lots and assembly halls. Kowcum v. Bybee, 182 Or 271, 186 P2d 790, arose out of an injury which an employee suffered in a parking lot which the employer of both the plaintiff and the defendant maintained for his workmen. It may safely be assumed that facilities of the kind just listed are intended to serve the same general purpose as vehicles for the transportation of the workmen. Anything which attracts to the plant better workmen and induces them to put forth superior efforts gives the employer a greater return for the wages which he pays. In view of the problem of procuring protection from tort liability, it might never occur to the employer that some court would hold that when the workman stepped over the threshold of the factory door into a parking lot or into the company's bus, he had left the plant. The employer might believe that his workmen were still his employees while they remained within his domain and were doing the things which he regarded as beneficial to superior production. Reflections of that kind *301 may have prompted Judge Parker to his belief that "The purpose of the exclusion clause is to limit coverage to liability for injury to members of the general public and to exclude liability to employees of the insured." The most difficult task is to ascertain the point at which the individual changes from an employee into a member of the common public. Judge Phillips believed that unless the employee was active in his work when the accident occurred he was not engaged in his work and was, therefore, a member of the common public. Under his interpretation, the exclusion clause demanded that the employee should be upon the production line actively participating in the work. Accordingly, when he was seated in the bus on his way home, he was not "engaged" in his work but was a member of the common public. Judge Parker held that under the exclusion clause the workman had not reverted to the common public when (1) the transportation back to his home was provided by the employer as an incident of the contract of employment, and (2) the injury was received under circumstances for which an award of workmen's compensation would be ordered if the workmen's compensation law were applicable; for, as the decision put it, "One of the provisions of the policy in question excludes any obligation `for which the insured * * * may be held liable under any workmen's compensation law.'" The foregoing completes our comparison of the two lines of reasoning.
Lamm v. Silver Falls Timber Co., which the plaintiff believes indicates that there is a difference in meaning between the terms, "injury arising out of and in the course of employment" and "engaged in the employment", made no effort to indicate the manner in which the latter phrase should be interpreted. It *302 was not concerned with any exclusion clause of a policy of insurance.
The Francis, Passmore and Lumber Mutual are only three of the decisions which the briefs of counsel have called to our attention, but the reasoning in them is typical of that which all of the decisions employ.
In addition to the Francis and Passmore decisions, Elliott v. Behmer, 150 Kan 876, 96 P2d 852, [with two justices dissenting] held that an employee, who, at the termination of his day's work is given gratuitous transportation home, is not engaged in his employment while seated in the home-bound conveyance. Taking the opposite view and joining with the Lumber Mutual decision are Johnson v. Aetna Casualty & Surety Co., 5 Cir, 104 Fed2d 22; State Farm Mutual Automobile Ins. Co. v. Braxton, 4 Cir, 167 Fed2d 283; and Westcott v. United States F. & G. Co., 4 Cir, 158 Fed2d 20.
In Johnson v. Aetna Casualty & Surety Co., supra, the employer, one Frank Green, operated a small sawmill in South Carolina, 40 miles from the town in Georgia where he and his workmen lived. Each Monday morning when Green went to his mill he took with him in his truck his sawmill hands, and on the following Saturday when he returned home he brought them with him in the truck. Upon the occasion which resulted in the decision under review the truck collided with another, resulting in the death of one of the workmen and the injury of another. Green had a policy of insurance issued by the plaintiff which protected him from damage claims arising out of the operation of the truck, but which contained an exclusion clause rendering the policy inapplicable "to bodily injury or to death of any employee of the insured while engaged in the business of the insured." When actions were threatened against Green, the plaintiff instituted *303 a suit for a declaratory decree. In affirming the decree of the District Court, which held that the plaintiff was not liable under its policy, the Circuit Court of Appeals said:
The foregoing completes our review of the authorities. In the cases of which we have taken notice, the injury was sustained while the conveyance was being operated upon a public thoroughfare. In those cases transportation in the employer's vehicle was not the only practical method whereby the employee could go to and from his place of employment, with the exception of Johnson v. Aetna Casualty & Surety Co., supra. In the case at bar, the employees had no practical means whereby they could travel to and from their place of employment except in the busses which the plaintiff provided. Moreover, in the instant case, the route which was traveled was a private road which was under the exclusive control of the employer and, due to the rough and rugged lay of the land, travel upon the road was dangerous. Although in the cases above reviewed the vehicles were ordinary private automobiles or motor trucks, in the case before us the conveyance was a bus which the plaintiff used exclusively for the purpose of transporting its workmen.
1, 2. Our analysis of B. & H. Passmore M. & R. Co. v. New Amsterdam Casualty Co., supra, and Lumber Mutual Casualty Insurance Co. v. Stukes, supra, has persuaded us to the reasoning employed in the latter. We recognize, as Judge Phillips pointed out, that insurance policies, especially their exclusion clauses, must *305 be strictly construed against the insurer and that, since workmen's compensation legislation is remedial in character, it must be liberally construed in favor of the workingman. But when all of that has been done, the fact remains that policies such as the one before us are intended to grant employers no protection for injuries to their employees. Accordingly, the controlling issue is: at what point does an employee lose his identity as such and become absorbed in the general public. Until he has cast off his role as an employee and become merged in the general public, the policy affords his employer no protection against mishaps which may befall him.
It is easier in this case to decide the problem than to state with precision the rules which yielded the decision. In this case, the plaintiff still had the men under its control and within the facilities of its plant when the accident occurred. As long as the men were upon the plaintiff's log truck road they were subject to the hazards of their daily work. If the men desired to continue their contracts of employment, there was no practical way in which they could escape the hazards of the crummies and none in which they could avoid the log truck road. The men rode in the crummies as an incident of their contract of employment. While they were being transported upon the log truck road they were exposed to dangers which the public did not encounter, for the members of the public were excluded from that road.
We have encountered no decision which endeavors to disclose any difference in meaning between "engaged in the employment" and "arising out of and in the course of his employment." The practical affairs of life, according to our belief, would gain nothing of consequence if a court should undertake to discover *306 a difference in the connotation of these two groups of words. We do not believe that the Passmore decision holds that the two terms actually differ in meaning, but indicates that courts, in determining whether a workman was "engaged in his employment", are more inclined to answer "no" than when they inquire whether he was engaged "in the course of his employment." The difference is one of judicial attitude rather than one of difference in phraseology. The difference has its origin in the fact that in the one case a contract of insurance is the subject of attention and in the other an item of remedial legislation. We can see merit in the distinction. In all other respects we embrace the Lumber Mutual opinion.
It will be recalled that the Passmore decision said: "Under certain particular situations there would be no doubt that the employee either was or was not engaged in the business of his employer." Possibly those words foresaw a situation of the kind which is before us. It is obvious that the facts in the Passmore case and in the one at bar are materially different. The exemption clauses are similar, but otherwise the cases are different.
3. It seems clear that the plaintiff could not have carried on its business without providing a means whereby the workmen could reach the place of their labors and at the close of the day return to their dwellings. Transportation for the workmen was vital to the plaintiff's operation and, in lieu of constructing a road upon which its workmen could operate their own cars, it was incumbent upon the plaintiff to haul its men back and forth. Provision for the carriage of the men was no less essential to the plaintiff's operations than the log trucks which hauled the logs from *307 the woods to the market. The crummies were as much an integral part of the plaintiff's plant as the log trucks and the log truck road. We are satisfied that transportation for the men was an incidental, if not an express, term of the contract of employment between the plaintiff and its employees.
When the men entered the busses in the morning and returned to them at the termination of the day's labors, they did so because of the terms of their contract of employment. Unless they rode in the busses, no timber would be cut. As we have said, the busses were, for all practical purposes, a part of the plant. They played their role in the production of logs. At the time of the unfortunate accident, the men, according to our belief, were engaged in their employment because (1) they were the plaintiff's employees; (2) they were still in the plaintiff's plant; (3) they were still under the plaintiff's control; (4) they were doing something which was essential to the plaintiff's operations; and (5) their presence in the bus was, for all practical purposes, a condition of their contract of employment.
We find no merit in the assignments of error under consideration. Since we have taken that position, it is unnecessary to set forth our consideration of the other assignments of error.
The decree of the circuit court is affirmed. Costs and disbursements will not be allowed.
William E. Walsh, of Coos Bay, and Howard K. Beebe, and Maguire, Shields, Morrison & Bailey, of Portland, for the petition.
*308 Black & Kendall, of Portland, and McKeown & Newhouse, of Coos Bay, attorneys for respondent.
PETITION DENIED.
TOOZE, J.
The plaintiff, I-L Logging Company has filed a petition for rehearing which, omitting formal parts, reads as follows:
Plaintiff has also filed an extensive brief in support of its petition. However, a careful review of that brief has failed to disclose any important point in the case that was not fully argued by counsel and carefully considered by the court upon the original hearing.
We refrain from restating the facts in the case, because they are fully set forth in our original opinion which was handed down July 13, 1954.
Before giving attention to the several assignments of error set forth in the petition for rehearing, we wish to take note of what plaintiff claims is the effect of our decision, as set forth in subdivisions (a) and (b) of paragraph 7 thereof.
*310 We have held, of course, that under the facts of this case, plaintiff was not protected under defendant's policy of indemnity insurance. As to whether it was protected under Lloyd's policy is of no importance in this particular litigation. Plaintiff rejected the contribution and compensation features of our Workmen's Compensation Act, as it had a right to do. In its relations with its employes, it sought protection elsewhere. The sort of protection it received is its own problem; that is one of the hazards it assumed when it rejected the Act. It has no bearing whatever upon the interpretation that should be given to the provisions of the public liability policy issued by defendant; and what is said with reference to plaintiff applies to all other employers similarly situated. It might well be pointed out that if these employers are unable to secure the coverage they desire from Lloyd's or some other indemnity company, the doors to the Workmen's Compensation Act always remain open to them.
Moreover, the record before us reveals that we need give ourselves no concern over the alleged plight of plaintiff. The statement that "it actually was not protected * * * under * * * the Lloyd's policy" does not accord with the facts, viewed from a practical standpoint. We quote from plaintiff's opening brief on the appeal to this court, commencing on page 6 thereof, the following:
Under Lloyd's policy the limit of liability was $100,000 with a deductible of $5,000, on each disaster. The policy is entitled: "WORKMEN'S COMPENSATION (EXCESS SELF-INSURERS) POLICY."
*312 Thus it appears that Lloyd's did indemnify plaintiff under the terms of its policy. Manifestly, the "loan" feature of the dealings between Lloyd's and plaintiff was more or less a pure fiction. It was simply a contrivance to enable plaintiff, in its own name, to maintain this action against defendant. Plaintiff has nothing to win or lose by our decision. It is a nominal party only. The real party in interest (not in the sense that it could or should be the plaintiff here) is Lloyd's, London. It, and not the plaintiff, must suffer the effects of our decision. It is significant that Lloyd's was willing to pay $100,000 indemnity under its policy. That is a substantial sum of money; not a nuisance payment. It is a matter of common knowledge that Lloyd's lacks much of being a philanthropic institution. It is obvious that its motives in shouldering liability in this case were not guided by a spirt of benevolence. Whether, as a matter of law, it was liable under its policy is not before us for decision; but its actions, which speak louder than words, indicate its own belief that under its policy liability attached. It is, of course, plain that its policy was procured and intended as a substitute for the rejected provisions of the Workmen's Compensation Act.
On the other hand, a mere reading of defendant's policy will clearly reveal that it was procured and issued for an entirely different purpose. The policy is, as its title indicates, a public liability policy, and its terms are standard for that type of insurance. Its aim is to indemnify the insured against claims for damages by members of the public generally, as distinguished from claims for damages by employes arising out of the employment relationship. In speaking of the employment relationship, we do not use the term "employment" in its broadest sense, nor did we so use *313 it in our former opinion. On the contrary, we use it in its well-established, restricted sense, in the sense that it is used in cases arising under an Employer's Liability Act, under a Workmen's Compensation Act, under insurance policies such as we have here, and in situations involving the doctrine of respondeat superior. It is most significant that the exclusion clause in defendant's policy expressly excludes liability for claims by employes for which the insured might be held liable "under any workmen's compensation law".
We now give attention to the specific grounds for a rehearing as assigned by the plaintiff. We preface our discussion by again quoting the exclusion clause of defendant's policy:
It is plaintiff's contention that the phrase "while engaged in the employment of the Insured" is ambiguous. It argues that such ambiguity exists as a matter of fact and of law because certain courts, according to plaintiff, have differed as to the meaning of the same or equivalent language in insurance policies similar to that issued by defendant in this case. In support of that contention it cities the case of Purcell v. Wash. Fid. Nat. Ins. Co., 146 Or 475, 486, 30 P2d 742, and quotes from the opinion of Mr. Justice ROSSMAN as follows:
The foregoing must be read in the light of the facts and circumstances existing in that case and, specifically, in the light of the particular provisions of the insurance contract there involved. In that case it appeared that the particular provision of the insurance policy under consideration had been construed by quite a number of state courts of last resort. In the instant case, however, it appears that the language of the exclusion clause now being considered, or similar language, *315 had been construed by only four courts prior to the issuance of defendant's policy; viz., (1) by the U.S. Cir. Ct. of App., 5th Cir., in May, 1939: Johnson v. Aetna Casualty & Surety Co., 104 F2d 22 (unanimous decision); (2) by the Supreme court of Kansas, in December, 1939: Elliott v. Behner (Casualty Co. of Dallas, Texas, Garnishee), 150 Kan 876, 96 P2d 852 (two judges dissenting); (3) by the U.S. Cir. Ct. of App., 8th Cir., in July, 1943: State Farm Mut. Automobile Ins. Co. v. Brooks, 136 F2d 807 (unanimous decision); and (4) by the U.S. Cir. Ct. of App., 10th Cir., in January, 1945: B.H. Passmore Metal & Roofing Co., Inc. v. New Amsterdam Cas. Co., 147 F2d 536 (three judges participating, one dissenting). In the first case decided, i.e., the Johnson case, the court construed language similar to that in question here contrary to plaintiff's contentions in this case, and as we construed it in our former opinion. The third case, i.e., the Brooks case, followed the same rule announced in the Johnson case, citing the Johnson case as an authority for its position. In the Passmore case, which followed in point of time both the Johnson and Brooks cases, the court arrived at a conclusion seemingly in keeping with plaintiff's claim in this litigation. The court, in the body of its opinion, noted the decision in the Brooks case and apparently attempted to distinguish it on the facts, although its statement of the facts in that case appears to have been in error. In the Brooks case, the boys were being transported to their home when the accident occurred, and not to another place of work to perform additional duties, as Judge Phillips stated. Also, in the body of its opinion in the Passmore case, the court ignored the holding in the Johnson case. However, in passing, we note with *316 interest note 9 appended to the Passmore decision, found on page 539 of 147 F2d, and reading as follows:
At first glance, the Elliott decision by the Kansas court would seem to support the claims of plaintiff relative to the construction that should be given the provision of defendant's policy with which we are concerned. Yet, a close analysis of the opinion in that case raises a serious question as to whether it is authority for or against plaintiff's position. We shall later point out some rather significant features of that opinion.
However, it is highly questionable that the diversity of opinion shown in the four cases mentioned established an existing ambiguity in the language employed in the policy as a matter of fact or law within the meaning of the rule as stated by Mr. Justice ROSSMAN. Decisions rendered by several courts of last resort since the instant policy was issued may have the effect of establishing such ambiguity within the meaning of the rule. Yet, when all is said and done, conflicting conclusions by a number of courts is only evidence of ambiguity. *317 It is not necessarily conclusive. The rule is stated in 13 Appleman, Insurance Law and Practice, 105, § 7404, as follows:
The rule announced by Mr. Justice ROSSMAN is a sound rule and ordinarily is applied when necessary under circumstances such as existed in the Purcell case. The fact remains, nevertheless, that it is but one of the many secondary rules for the construction of insurance contracts that have been established by court decisions, and, like most other rules of construction, depends for its application and effect upon the particular facts before the court. Stewart v. Continental Cas. Co., 141 Wash 213, 250 P 1084, 49 ALR 960, and note.
4. However, it must be borne in mind that the primary and governing rule for the construction of insurance contracts, as of all other contracts, is to ascertain and declare the intention of the parties. In applying this rule, the contract must be considered as a whole, and, in some instances, resort may be had to extrinsic circumstances attending the execution of the agreement. All other rules of construction are secondary and are designed for the purpose of aiding in the application of the primary rule. In 13 Appleman, Insurance Law and Practice, 29, § 7385, it is said:
In 13 Appleman, Insurance Law and Practice, 11, § 7383, it is further stated:
There is no court-made rule of construction applying to insurance contracts that is binding upon us to the extent that in every case coming before us we are required *319 to close our eyes to the particular factual situation involved, to abandon our own reasoning powers and ignore precedents established by prior decisions of this court, and to blindly follow a path some court of a foreign jurisdiction may have followed, or adopt a narrow and strained interpretation of the language employed in the contract simply because such an interpretation might be favorable to an insured.
For the purposes of this case, it may be conceded that the phrase "while engaged in the employment of the Insured", as used in the exclusion clause, is ambiguous, in the sense that we are called upon to specify with distinctness its meaning. In our former opinion we endeavored to make it clear that in our judgment the language employed in defendant's policy has the same meaning as the phrase "arising out of and in the course of employment", as used in our Workmen's Compensation Act. That conclusion was reached after thoughtful consideration and was deliberately stated. We find no reason for altering our position in that respect. However, from our concession of ambiguity in the sense mentioned, it does not necessarily follow that, under the rule that ambiguous language in an insurance contract should ordinarily be strictly construed against the insurer and liberally in favor of the insured, we are bound to adopt the construction urged upon us by plaintiff: that it means that the employe must be actually engaged in performing the particular work which he is paid to perform. The rule itself is a court-made rule; it does not have a specific statutory basis. It is a rule that is applied when the particular facts of a case warrant its application and when such application will lead to a sound conclusion. ORS 42.260, cited by plaintiff in support of its contention that the rule mentioned has a statutory basis, does not *320 specifically apply to insurance contracts; it is a general statute which on its face shows that in any given case its application depends upon the particular facts involved. That statute provides:
5. However, we do not wish to be understood as deviating in the slightest degree from the firmly-established rule in this state that where the construction of an insurance policy containing ambiguous language is involved, the provisions should be liberally construed in favor of the insured. Nevertheless, as indicated, the rule must be considered in the light of other equally well-established rules of construction, and, particularly, in the light of the primary rule above stated. Its application must lead to a sound conclusion under all the facts and circumstances in issue.
The plaintiff argues that defendant's policy was issued after certain courts had construed the clause in question unfavorably to defendant's present contention, and that it might well be considered that the policy was issued with that construction upon it. Plaintiff states:
*321 Substantially the same argument was made upon the original hearing. In support of its claim that the wording of the exclusion clause in defendant's policy had been construed unfavorably to its contention in this case prior to the issuance of the policy under consideration, plaintiff then cited, and again cites, two decisions: the Passmore case, and Elliott v. Behner, supra. We previously stated that we would discuss the Elliott case. True, we discussed it in our former opinion, but inasmuch as there is one phase of the decision to which we did not give detailed attention, we will now supply that omission.
The case of Elliott v. Behner, supra, upon which plaintiff relies, was a sequel to the case of Elliott v. Behner, 146 Kan 827, 73 P2d 1116. In neither case was the Workmen's Compensation Law involved directly or indirectly. The facts in that case were entirely different from the facts in the instant case, as we pointed out in our former opinion.
The exclusion clause of the policy in the Kansas case read:
In construing the phrase "while engaged in any business or occupation of the Assured", and to determine what it meant, the Kansas court very properly resorted to a consideration of what it deemed to be a somewhat similar provision in its state Workmen's Compensation Act and its own decisions with reference thereto. Referring to the language used in the exclusion clause, it said (at page 856 of 96 P2d):
Before discussing the law of the case as noted, the Kansas court had stated (page 855):
Under the facts in that case it is clear that the fatal accident did not "arise out of" Elliott's employment, as that term is ordinarily construed and applied in Workmen's Compensation cases. That, in substance, is what the Kansas court said. It based its ultimate conclusions upon the particular facts with which it had to deal. But it is significant that it grounded its final decision as above quoted upon the discussion immediately preceding respecting the Workmen's Compensation Act.
As authority for its claim that "an insurance company which continues to employ a clause which has been construed unfavorably to its present contention may well be considered to have issued the policy with that construction upon it, or to have adopted it", plaintiff cites three cases: Fidelity & Casualty Co. v. Lowenstein, *324 97 F 17, 19; Prudential Ins. Co. v. Harris, 254 Ky 23, 70 SW2d 949, 953-4; Stanley v. American Motorist Ins. Co., 195 Md 180, 73 A2d 1, 4.
In the Lowenstein case the court said:
In the Stanley case the Maryland court said:
The Kentucky court spoke as follows in the Harris case:
6. The rule announced by the above courts is certainly a sound rule, but it is manifestly inapplicable to the situation in this case. Prior to the issuance of defendant's policy, it had not been directly construed by any court. Neither had the language of its policy, nor similar language, been given "uniform judicial construction" by courts in five or six states, nor had there been "a consistent judicial course of construction" respecting it. On the contrary, only two courts at most had construed the language favorably to plaintiff's contention; whereas two other courts had definitely taken the opposite view. In such circumstances it is doubtful that any court would apply the rule contended for by plaintiff. We refuse to do so.
7. As previously noted, we held in our former opinion that the phrase "while engaged in the employment," as used in defendant's policy, has the same meaning as the phrase "arising out of and in the course of the employment", used in Workmen's Compensation Acts. We again so hold.
It is a well-settled general rule, that an injury sustained by a workman in going to or from work does not *326 arise out of and in the course of his employment. However, several exceptions to that general rule are equally well settled. These exceptions were firmly established by many decisions of courts of last resort in many states, including our own, long before defendant's policy was issued in this case, and, adopting plaintiff's own argument and the authorities it cites, defendant's policy may and should be read in the light thereof.
An employer may agree, either expressly or impliedly, that the relationship between himself and his employe shall continue during the period of "going to and coming from" the actual job site, in which case it is generally held that an accidental injury sustained by the employe while "going or coming" is one that "arises out of and in the course of the employment". This is particularly true where, as here, the employer furnishes transportation to and from the work as a necessary part of the contract of employment. The same situation may arise when an employer, as a part of the contract of hire, pays the workman an extra sum of money to cover the cost of transportation, or where the employer compensates the employe for the period of time required in going to or from the work. Each case is decided upon its own facts. There is no fixed rule decisive of all cases. The record in the instant case supports a conclusion that the transportation furnished by the employer was expressly made a part of the contract of hire and was a necessary incident thereof. Such transportation was the only practical means of getting the workmen to and from the job site. Livingston v. State Ind. Acc. Com., 200 Or 468, 266 P2d 684, 13 NACCA LJ 27; Lamm v. Silver Falls Timber Co., 133 Or 468, 277 P 91, 286 P 527, 291 P 375; Serrano v. Ind. Comm., 75 Ariz 326, 256 P2d 709; Kobe v. Ind. Acc. Com., 35 Cal2d 33, 215 P2d 736; Voehl v. *327 Indemnity Ins. Co. of North America, 288 US 162, 53 S Ct 380, 77 L ed 676, 87 ALR 245, and note commencing at page 250, Gettlin v. Maryland Cas. Co., 196 F2d 249.
8. It would seem axiomatic that a workman is engaged in his employment at all times while he is doing something for the benefit of his employer, pursuant to his contract of hire. That "something" does not necessarily mean the actual swinging of the axe, the operation of the donkey, the handling of the lumber on the green chain, or other activity for the performance of which one is employed. It may include other things. When transportation to and from the job site is necessarily furnished by the employer as a part of the contract of employment, and, as here, to further the business of the employer, there can be no question but that the workmen are engaged in the duties of their employment from the moment they enter the bus (or other means of transportation) provided by the employer for that purpose until they are discharged therefrom at the end of the day's work. It is immaterial that the workmen also benefit from the transportation. Under the facts and circumstances of this case, it is obvious that from the moment the workmen entered the bus and transportation began, their movements were controlled by the employer; they had no control over the operation of the vehicle, nor did they have the right to direct it. That was exclusively the business of the employer.
It is manifest that our previous decision is not wrong unless we now find ourselves caught in a plight which compels us to embrace the Passmore decision, even though the careful consideration we gave to it when we wrote our original opinion caused us to reject the holding in that case. The petition for a rehearing does not contend that the Passmore decision was correctly *328 decided and that it is harmonious with our laws and previous decisions, but insists that this court and all other courts confronted with cases like this one have been caught in a vise which forces them to adopt the Passmore holding.
The petition for a rehearing is based upon the premise that if a court anywhere has construed a provision in an insurance policy favorably to the insured, thereupon all other courts which subsequently construe a similar provision must follow it. The latter becomes the bellwether for the flock, and all subsequent courts must follow in lock step. They can engage in no reasoning process: "Their's not to make reply, Their's not to reason why, Their's but to do and die."
Under the rule which the plaintiff asks us to follow, our previous decision would be correct if Judge Parker had pronounced his decision in Lumber Mutual Casualty Ins. Co. v. Stukes, 164 F2d 571, a day or so before the defendant issued its policy to plaintiff, but, since he did not do so, we must reverse our previous decision and follow, willy-nilly, the decision written by Judge Phillips. Thus, we are asked to decide this case upon a timetable basis. But following plaintiff's own argument, the Passmore decision is clearly erroneous because it did not adopt the interpretation placed upon the phrase in question in two prior cases: Johnson v. Aetna Casualty & Surety Co. (the first case), supra; and State Farm Mut. Automobile Ins. Co. v. Brooks, supra.
It is too well established to require a buttressing with citations that every authority which is submitted to a subsequent court must be analyzed and appraised before it is accepted and followed. The principal elements which give an authority value may be summarized as follows: (1) Were the facts in cited case similar *329 to those in the case at bar? (2) Does the reasoning and the analysis which were employed in the cited case appeal to the court in the instant case as sound? (3) Was the question decided in the cited case the same as that before the court? and (4) Does the decision or the result which was reached in the cited case have a bearing upon the case being considered? In short, a decision is not controlling merely because it is a decision. The court to which it is cited must analyze and appraise it.
Even at the risk of some repetition, we turn again to the Passmore decision. In it Judge Phillips wrote: "It is true that if the accident had not resulted in Little's death he would have been entitled to benefits under the Workmen's Compensation Law * * *." That statement was made notwithstanding the fact that Little, the deceased employe, was under no compulsion whatever to ride in the truck. Passmore, according to the decision, furnished the vehicle "gratuitously". The truck was a small one and one-half ton Ford, which was used by Passmore primarily for the purpose of hauling materials and supplies to and from the places where his crew did their roofing work. The truck was driven daily, before working hours commenced, from Passmore's shop to the place of work, and at the close of the day's work, returned to the shop. Little and the other two men were afforded the privilege of riding in it. Usually they embraced the privilege, but at times they availed themselves of other means of transportation. The truck operated upon the public thoroughfares. Such were the facts in the Passmore case.
It is clear that if Little had been injured in Oregon and had sought workmen's compensation for his injury, compensation would have been denied him. In fact, *330 this court has so held more than once. Our latest pronouncement, Livingston v. State Ind. Acc. Com., supra, quoted the following from an annotation in 87 ALR 245:
Our decision ruled as follows:
From the language just quoted, we see that the Passmore case employed a view of the law contrary to the holdings of this court. In appraising the value of a precedent, all courts, before embracing or rejecting it, must determine whether or not the precedent employed principles of law adverse to the local holdings. Not only is the Livingston decision adverse to the Passmore statement ("If the accident had not resulted in Little's death he would have been entitled to benefits under the Workmen's Compensation Law"), but March v. State Ind. Acc. Com., 142 Or 246, 20 P2d 227, is likewise adverse to that holding; so, also, is Larsen v. State Industrial Accident Com., 135 Or 137, 295 P 195, in which we said:
In Collins v. Troy Laundry Co., 135 Or 580, 297 P 334, the plaintiff, an employe of the Troy Laundry, had scarcely stepped out of the laundry to the adjacent public walk when she was injured through an obstruction upon the walk which was a part of the laundry's equipment. It was held that her injury did not arise out of and in the course of her employment.
In Hopkins v. State Ind. Acc. Com., 160 Or 95, 83 P2d 487, the plaintiff, who was upon relief, was employed upon a Federal SERA project which was many miles from his home. Because the plaintiff lacked transportation, the foreman permitted him to quit work and start home early. While he was on his way and proceeding along a public highway, he was injured by a passing car. Our decision held that the injury did not arise out of and in the course of the employe's employment.
In Lamm v. Silver Falls Timber Co., supra, and Varrelman v. Flora Logging Co., 133 Or 541, 277 P 97, 286 P 541, 290 P 751, the injuries, unlike the one suffered in the Passmore case, did not occur upon a public thoroughfare, but upon the defendant's logging railroad. The distinction is material. When Little, Passmore's employe, was injured upon the public street, he was exposed to no dangers which the common public did not also face. But Lamm and Varrelman, who were injured while going back to the logging *332 camps, were exposed to dangers incidental to their employment which the public never encountered.
As we have seen, one of the elements which courts take into consideration in appraising the value of a precedent is whether it passed upon a question similar to the one at bar. The Passmore decision, in stating the question which it decided, defined it in these words: "a borderline case". Thus, anyone evaluating that decision is warned that the court which announced it deemed it "a borderline case". The warning is accented by the fact that the court at first decided it the other way and then reversed itself upon rehearing. The final decision reversed not only the previous one, but also that of the lower court. Further, Circuit Court Judge Bratton, who has had a long and distinguished career upon the bench, dissented.
The Passmore decision acknowledged that there were two federal decisions contrary to its holding. One of the two is State Farm Mut. Automobile Ins. Co. v. Brooks, supra; the other is Johnson v. Aetna Casualty & Surety Co., supra.
From the foregoing, we observe that the Passmore decision employed a principle of law which is not recognized in this state. This court has more than once rejected it. That in itself is a material difference between the two cases. If an insured, who was offered a policy like the one before us, had consulted the Passmore holding in an effort to learn the meaning of a policy, he would have observed that the Passmore decision termed the case before the court as "a borderline case" and thereby would have been warned that the holding might not be repeated if the facts in the next case were different. Furthermore, he would have observed that the court had previously announced a different holding, and he would also have observed that *333 the decision which he was reading represented the views of only two of the three judges.
9. As we have observed, the holding in one case is never deemed controlling upon a subsequent case if the facts of the two cases are substantially different. The facts in the Passmore case and those in the one at bar are materially different: (1) In the Passmore case the truck which brought death to Little operated upon the improved public thoroughfares; whereas, in the case at bar, the "crummy" ran along a private hazardous road which was a part of plaintiff's premises; (2) in the Passmore case the transportation was furnished "gratuitously" and not as a necessary incident or term of the employment contract; whereas in our case the transportation was a term, or incident, of the employment and at times was a feature of the bargaining which took place between the plaintiff and the labor union; (3) in the Passmore case the plaintiff, upon laying down his tools and entering the truck, was no longer exposed to the hazards of his employment, but in the case at bar the workmen were exposed to the hazards of their employment at least as long as the crummy operated upon the logging road; (4) in the Passmore case Little and his coemployes were at liberty to ride in the truck or not as they saw fit, but, in the case before us, the employe had no choice. Accordingly, if the plaintiff, before procuring the policy of insurance which is before us, had envisioned the accident which actually later occurred and had then consulted the Passmore decision, it could not reasonably have inferred that the Passmore decision would be applicable to the accident.
As noted, the petition for a rehearing contends that the term "engaged in the business" is ambiguous and that we are, therefore, bound to place upon that term *334 the meaning which was adopted in the Passmore decision. Continuing, the petition argues that we are forced to ignore the purported meaning given to the same term by Judge Parker in Lumber Mutual Casualty Ins. Co. v. Stukes, supra. Let us pause upon that contention for a moment.
The Passmore decision said: "The word `engaged' connotes action." Presently it turned to a decision and quoted from it the following: "`Engaged' is defined in Volume III of Words and Phrases, Third Series, at page 258, as follows: `Engage' means to take part in or being employed in, however, the employment may arise." Lumber Mutual Casualty Ins. Co. v. Stukes, supra, took no issue with a definition as commonplace as that. Referring to the facts of its own case, it pointed out: "Such transportation was a part of his contract of employment." Thus the transportation in that case, as in the one before us, but unlike the transportation in the Passmore case, "was a part of his contract of employment." It then continued:
From the foregoing it becomes apparent that the difference in the results reached by Judge Phillips and Judge Parker did not come from assigning to the phrase, "engaged in the business" different meanings, *335 but largely from the circumstances that the facts of the two cases were different and that Judge Parker deemed that an employe, who was being transported under the terms of his contract of employment, was engaged in his employment, whereas Judge Phillips believed that an employe, while riding through the courtesy of his employer, was not so engaged.
Despite the fact that some courts have apparently differed as to the proper construction that should be placed upon the phrase "while engaged in the employment of the Insured", it is true, nevertheless, that the differences stemmed from the particular factual situations involved, rather than from any real conflict upon legal principles. The phrase is couched in plain and understandable language; in language that has long been used in the law of agency and of master and servant. As a practical matter, it is dificult to look upon the language as ambiguous in the sense contended for by plaintiff. Throughout its brief on the petition for rehearing, in speaking of that phrase, and, in particular, when discussing a claimed ambiguity in the language used, plaintiff emphasizes the word "engaged". It pays but little attention to the remainder. The word "engaged" is a very simple word indeed, its meaning well understood. But it is obvious that it is not the key that opens the door to the plain meaning of the phrase itself. The gist of the clause is to be found in the words "in the employment of the Insured". When, from the facts of a given case, it is ascertained what is encompassed by the workman's "contract of employment", or, in other words, "what is the scope of his employment under the contract of hire", it then becomes a most simple matter to determine whether or not at a given time and place an employe was "engaged in", or "carrying on", his duties "within the scope *336 of his employment", pursuant to his contract with his employer. Unambiguous language cannot be made ambiguous by any argument of counsel or rule of law. This principle is well stated in Terry v. New York Life Ins. Co., 104 F2d 498, 504, as follows:
Before concluding, we wish to take notice of another phase of this case that was not discussed in our former opinion.
Based upon the premise that the exclusion clause in defendant's policy contains ambiguous language, we are urged by plaintiff to resolve all doubts in favor of the insured and to go so far in giving the insured the benefit of doubts as good conscience will permit. In advancing those propositions, plaintiff evidently deems that a perpetual conflict exists between the insurer and the insured. It argues that the insurer is constantly loading its policies with clauses inimical to the insured. Thus, plaintiff's brief includes passages such as these: "the tricky and uncertain language used by `calculating and astute experts' who hand out policies `ready-made' which `swarm' with intricate technical provisions"; "expert policy writer"; "a legal technician"; "the expert lawyers and draftsmen of the insurers * * * *337 with great craft and skill, using all acumen obtained through specialized education and experience". As before stated, it is well established that when the insured and the insurer are two entities, doubts which stem from ambiguities are generally resolved in favor of the insured, but in the present instance, it appears that the insured and the insurer are one and the same.
According to the complaint, "at all times mentioned herein defendant was and now is an unincorporated association whose subscribers engage in the business of inter-insurance". Plaintiff is one of the subscribers, and is, therefore, one of the insurers. The attorney in fact who signs the policies, such as the one which plaintiff possesses, is located in Colorado, and the act under which the policies issue is found in Vol. IIIA, 35 CSA, ch 87, § 98. That Act provides: "Individuals, partnerships and corporations of this state, hereby designated as subscribers, are hereby authorized to exchange reciprocal or inter-insurance contracts with each other, or with individuals, partnerships and corporations of other states and countries, providing indemnity among themselves for any loss which may be insured against under other provisions of the law, excepting life insurance, * * *." Oregon legislation of similar nature is contained in ORS 749.010 to 749.160.
Subsection (d) of § 98 of the Colorado statute provides: "* * * the attorney shall file with the insurance commissioner an instrument in writing executed by him for said subscribers, conditioned that upon the issuance of certificate of authority provided for in subsection (k) thereof, action may be brought in the county in which the property thereunder is situated, and service of process may be had upon the insurance commissioner, or deputy commissioner, * * *."
Thus, under the form of insurance involved here, *338 plaintiff was an insurer when it became an insured. In those circumstances, it is difficult to find any basis for the strictures in which plaintiff's counsel engage when they speak of "insurers". Moreover, it may be difficult to find any basis for the inferences, adverse to the "insurer", in which they ask us to indulge. Rickel v. Republic Mut. Fire Ins. Co., 129 Kan 332, 282 P 757. However, we need not decide those matters in this case, but leave them open for future consideration when such consideration may become necessary.
We adhere to our former opinion. The petition for rehearing is denied.
LATOURETTE, C.J., and LUSK, J., concur in the result. | 9212fc0829346692d8903bc9e526ed8128622bbe6246a1d7e24bf1fc2238ca4d | 1954-07-13T00:00:00Z |
6805d922-f096-41d8-86b1-7ca43c1cf16d | Herrmann v. Churchill | 235 Or. 327, 385 P.2d 190 | null | oregon | Oregon Supreme Court | Affirmed September 18, 1963.
*328 Leo Levenson, Portland, argued the cause for appellants. With him on the brief were LeRoy B. Skousen, Victor Levy, and Skousen & Holmes, Portland.
Ronald L. Marceau, Bend, argued the cause for respondent. With him on the brief were Roy Kilpatrick, Canyon City, and McKay, Panner & Johnson, Bend.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
PERRY, J.
The plaintiff brought this action to recover from the possession of the defendants certain lands which had been conveyed by deed from defendants to the plaintiff. The defendants filed an answer and cross-complaint in equity alleging that the deed was in effect a mortgage given to secure a debt due from defendants to plaintiff in a certain sum, and that they "were ready, willing and able to repay [that sum] * * * upon plaintiff furnishing to defendants a sufficient deed to the property."
The defendants prayed relief, as follows:
The trial court sitting in equity on the cross-complaint of the defendants found that a debt greater than the amount alleged by defendants was due the plaintiff and that the deed was given as security for the debt, and therefore to be considered as a mortgage to secure the debt. The court then entered a judgment for the amount found due from the defendants to the plaintiff and decreed that the defendants should have the right to redeem the land upon payment of the amounts due plaintiff, and on failure to redeem, they were "forever barred and foreclosed" from any interest in the land. From the decree entered by the court, the defendants appeal.
1, 2. The defendants' first contention is that a court of equity having found the deed to have been given to secure a debt, and thus in law to be treated as a mortgage, did not have the power to enter a judgment in the nature of a strict foreclosure, but was required *330 to order foreclosure in accordance with the provisions of ORS 88.070. The defendants also contend that if a court of equity has the power to enter a decree in the nature of strict foreclosure, nevertheless it should not have done so under the facts in this case. While this proceeding is in equity and this court is permitted to re-try the facts, we cannot consider this latter question, as the record made in the trial court was not placed before us, though there is no question but that if the facts of the case require a sale of the land to effect justice, a court of equity may so decree. Libel v. Pierce, 147 Or 132, 31 P2d 1106; Sheehan v. McKinstry et al, 105 Or 473, 210 P 167.
As to the defendants' first contention, it must be pointed out that this is not a suit to foreclose a mortgage.
The plaintiff claimed to be the owner in fee of the premises and entitled to the possession thereof. The defendants, if they desired to submit this matter of right of possession to a court of law, could have established a complete defense on proof that the deed was in contemplation of law a mortgage, for ORS 86.010 provides in part:
3. A deed absolute on its face may be shown in an action at law to be a mortgage. Purdy v. Underwood, 87 Or 56, 169 P 536; Nellas v. Carline, 161 Minn 157, 201 NW 299; Jordan v. Warner's Estate, 107 Wis 539, 83 NW 946.
Under a statute of the same tenor as ORS 86.010, the court held that possession of real property under *331 a deed absolute, in law a mortgage, if wrongfully obtained, was wrongful. Fond v. McCreery, 55 Idaho 144, 39 P2d 766.
As is apparent, the defendants were not content to defend only their right of possession, but called upon a court of equity to determine all of the rights of the parties in and to the land in question. They sought to have the amount of their debt determined and the right to require the plaintiff to reconvey the property to them.
4. A suit to foreclose a mortgage would not accomplish this, for on determination of the debt, the property would be sold to the highest and best bidder at sheriff's sale. Also, in this suit, the question as to the fee simple title to the property had to be decided. A statutory foreclosure suit is not for the determination of any right of title in realty, but the right to have certain property adjudged sold to satisfy an enforceable debt. Schleef v. Purdy et al, 107 Or 71, 214 P 137.
As stated, we do not have the record before us, but from the pleading and judgment entered, it appears the defendants did not agree at the time the debt was created to repay the debt, but only agreed that if they did not repay in a certain time the land should become the property of the plaintiff. This, of course, distinguishes a transaction where a deed is given, from a mortgage transaction where the mortgage is given as security for the promise to pay the debt. It is clear, therefore, the defendants, in enlisting the aid of equity, were seeking the right to redeem after they had failed to pay the moneys due in the time agreed upon. In other words, although defendants could not be required by the agreement to pay the debt, they now wished *332 however to do so that they might retain title to the land.
5, 6. It is well established that he who seeks equity must do equity, and "Where a party seeks relief by having a deed adjudged a mortgage, he must show willingness to do equity * * *," that is, by offering to pay the debt. Colahan v. Smyth, 159 Or 569, 576, 81 P2d 112; Kinney v. Smith, 58 Or 158, 113 P 854. This offer to do equity is a condition precedent to any relief. Weatherwax v. Heflin, 244 Ala 210, 12 So2d 554; 59 CJS 99, Mortgages, § 58(b); 36 Am Jur 790, Mortgages, § 196; 2 Jones on Mortgages, 8th Ed, 882, § 1398.
7. It is thus seen that the trial court's decree is not based upon the foreclosure of the deed as a mortgage, but is based upon the power of equity to prevent forfeitures by declaring the deed to be a mortgage and permitting redemption or discharge of the debt on an equitable basis. Having sought relief in equity, the defendants are required to do equity by making the plaintiff whole this by paying in full the moneys due him and not leaving to chance a sale of the land sufficient after foreclosure to make him whole.
Every jurisdiction in this country which has passed upon this question, insofar as our research discloses, has held that the statutes as to foreclosure of mortgages are inapplicable in a suit to have a deed absolute declared a mortgage.
At this point it should be understood that there is a clear distinction between the statutory right of redemption and the equitable right of redemption. Portland Mtg. Co. v. Creditors Prot. Ass'n., 199 Or 432, 262 P2d 918; Higgs v. McDuffie, 81 Or 256, 157 P 794, 158 P 953; Sellwood v. Gray & DeLashmutt, 11 Or 534, 5 P 196. "The right of redemption is a creature of the statute, and * * * arises only after *333 a sale upon a decree including a personal judgment against a defendant * * *" (Higgs v. McDuffie, supra, 81 Or at 263), while the equitable right of redemption is a creature of equity to relieve against forfeitures and "is entirely independent of the statutory right to redeem after sale, * * *." Sellwood v. Gray & DeLashmutt, supra; 59 CJS 1560, Mortgages, § 817. Since the defendants, as plaintiffs on their cross-complaint, are in equity seeking redemption, they are entitled as a matter of right only to the equitable right of redemption, not statutory, if the statutes governing foreclosure do not apply. This court so held in Murray v. Wiley, 169 Or 381, 127 P2d 112, 129 P2d 66, a suit to have a deed absolute declared a mortgage, where we carefully pointed out:
*334 Some confusion may be created by our statement "under the facts of this case," (169 Or 381 at 420) and the statement, "This being a suit by the mortgagor to redeem, provisions concerning sale on foreclosure being for the benefit of the mortgagor and plaintiff having prayed only for relief in the nature of strict foreclosure, we are of the opinion that we are authorized to and in equity we should modify the last sentence of our former opinion * * *" (169 Or 381 at 424) in that the impression may be gained that since the mortgagor only asked for strict foreclosure, he waived his rights to require statutory foreclosure by the mortgagee.
A careful reading of the opinion will dispel this error. The statement "under the facts of this case" refers to the nature of the action. The latter statement refers to the power of equity to enter a decree providing for either a judicial sale of the property, and an accounting for any overplus should the property sell for more than the debt, or one in the nature of strict foreclosure, depending upon the particular circumstances of the case, and since the mortgagor by his prayer that it was equitable that the decree should provide for strict foreclosure and the facts of the case were compatible with that prayer, this court would so decree.
The judgment of the trial court is affirmed, with leave for the defendants to redeem within 20 days after the mandate is spread of record.
O'CONNELL, J., dissenting.
If defendants had executed a mortgage in the usual form they would have had the right to insist upon a foreclosure by sale. ORS 88.010 and 86.010 express the *335 policy that foreclosure by sale is the exclusive method of foreclosing a mortgage in this state.[1]
An absolute deed given to secure a debt is a mortgage. As Osborne on Mortgages (p. 187) states: "Whenever a deed absolute on its face is established as a mortgage, the general rule is that as between the *336 parties it will be treated as though it were a mortgage executed in regular form." The rule arose because equity deemed it necessary to protect the borrower, usually in necessitous circumstances, from the importunity of the lender who sought to deprive the borrower of the benefits of foreclosure. This policy of protecting the borrower's equity of redemption by requiring foreclosure is essentially the same as that which underlies ORS 88.010. Under the statute, the borrower can demand that foreclosure take the form of a judicial sale.[2] The statute does not empower the court to substitute strict foreclosure in lieu of the prescribed foreclosure by sale. The mortgagor should have the same right to insist on foreclosure by judicial sale whether the mortgage is cast in the usual form or takes the form of an absolute deed.
Osborne on Mortgages, p. 187, after noting that the lender-transferee of a deed absolute mortgage has the same right of foreclosure as a mortgagee holding a mortgage in usual form, explains: "This general doctrine, however, does not apply to permit a strict foreclosure of a deed absolute mortgage." As authority for this statement Osborne cites Libel v. Pierce, 147 Or 132, 31 P2d 1106 (1934). In that case we said:
*337 The opinion went on to hold that the lower court had erred in granting strict foreclosure. The cause was remanded with directions to foreclose the mortgage by judicial sale. There is no essential difference between the Libel case and the case at bar.
The majority attach significance to the manner in which the borrower asserts his right to foreclosure by sale. Apparently if defendants had sought only to defend their right of possession, plaintiff would have been forced to foreclose the mortgage by judicial sale. However, the majority holds, that because defendants "called upon a court of equity to determine all of the rights" under their agreement, they must settle for strict foreclosure.
Why should the legislative policy of guaranteeing foreclosure by judicial sale apply only when the mortgagor acts defensively and not when he asks for affirmative relief? Neither the statute nor its legislative history provide the basis for argument that the mortgagor's right should be so limited. This is not to say that the strict foreclosure cannot be decreed if the mortgagor asks for it. In Murray v. Wiley, 169 Or 381, 127 P2d 112, 129 P2d 66 (1942) the court held that where plaintiff mortgagor prayed only for relief in the nature of strict foreclosure the decree was properly entered in that form.
It is true that in the Murray case the court emphasized the point that the mortgagor had brought a suit to redeem and that it "was not a suit by the mortgagees to foreclose a mortgage." Id. at 420, 129 P2d at 67. However, the contrast was alluded to in developing the point that "[t]he requirement that in suits brought for the foreclosure of a mortgage the property shall be sold subject to the right of redemption by the mortgagor is obviously for the benefit of the mortgagor." *338 Ibid. The court went on to clarify the fact that the mortgagor had not asked for a sale subject to redemption, but prayed only for relief in the nature of strict foreclosure." Id. at 424.
Admittedly, some of our cases leave doubt as to the right of a mortgagor to insist upon foreclosure by sale. Colahan v. Smyth, 159 Or 569, 81 P2d 112 (1938) contains general language to the effect that one who seeks to have a deed declared a mortgage must show a willingness to do equity by paying the mortgage debt. The court did not expressly hold that under such circumstances ORS 88.010 would be inapplicable. Kinney v. Smith, 58 Or 158, 113 P 854 (1911) clearly demonstrates that this court does not regard the "seek equity do equity" formula as incompatible with the right of the mortgagor to insist upon foreclosure by sale. In that case, after stating that when plaintiff seeks to have a deed adjudged a mortgage he must show a willingness to do equity by paying the mortgage debt, the court went on to say that when an absolute deed is given for security purposes "[t]he title to the property cannot pass to the mortgagee except by foreclosure, as provided by the statute or a relinquishment by the mortgagor." Id. at 162. A decree of strict foreclosure was modified and the property was ordered to "be sold as upon foreclosure in the manner provided by law." Ibid.
Although the cases are in conflict, authority in other jurisdictions supports the proposition that a mortgagor need not pay the mortgage debt as a condition to relief in a suit seeking to have a deed declared a mortgage. Illustrative is Reese v. Rhodes, 3 Ariz 235, 73 P 446, 447 (1890), where the court said:
The case of Stone v. Leavitt, 40 S D 467, 470, 168 NW 28, 29 (1918) is closely in point. In that case defendant Leavitt contracted to purchase land and assigned his rights under the contract to one Boyd as security for certain debts owed by Leavitt to Boyd. Boyd made payments called for by the contract of purchase and received the deed from the vendor. Boyd's administrator sought and received a strict foreclosure in the lower court. In holding that the lower court erred in allowing strict foreclosure instead of foreclosure by sale, the South Dakota Supreme Court said:
The foregoing reasoning is applicable to the case at bar. Defendants are entitled to a foreclosure by judicial sale.
The majority opinion makes it possible for a lender to render ORS 88.010 completely inoperable simply by putting the mortgage transaction in the form of an absolute deed. He can dispense with foreclosure by sale and proceed in ejectment, insisting upon strict foreclosure if the mortgagor attempts to assert his rights as a mortgagor. This the legislature did not intend.
McALLISTER, C.J., and DENECKE, J., join in this dissent.
[1] ORS 88.010 provides as follows:
"Except as otherwise provided by law, a lien upon real or personal property, other than that of a judgment or decree, whether created by mortgage or otherwise, shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby by a suit. Except as provided in ORS 88.070, in addition to the decree of foreclosure and sale, if a promissory note or other personal obligation for the payment of the debt has been given by the lien debtor or any other person as principal or otherwise, the court also shall decree a recovery of the amount of the debt against such person or persons, as the case may be, as in the case of an ordinary decree for the recovery of money. The provisions of this chapter as to liens upon personal property are not intended to exclude a person having such lien from any other remedy or right in regard to such property."
ORS 86.010 provides as follows:
"A mortgage of real property is not a conveyance so as to enable the owner of the mortgage to recover possession of the property without a foreclosure and sale. This section is not intended as a limitation upon the right of the owner of real property to mortgage or pledge the rents and profits thereof, nor as prohibiting the mortgagee or pledgee of such rents and profits, or any trustee under a mortgage or trust deed from entering into possession of any real property, other than farm lands or the homestead of the mortgagor or his successor in interest, for the purpose of operating the same and collecting the rents and profits thereof for application in accordance with the provisions of the mortgage or trust deed or other instrument creating the lien, nor as any limitation upon the power of a court of equity to appoint a receiver to take charge of the property and collect the rents and profits thereof."
Murray v. Wiley, 169 Or 381, 401, 127 P2d 112, 129 P2d 66 (1942); Harper v. Interstate Brewery Co., 168 Or 26, 120 P2d 757 (1942); Libel v. Pierce, 147 Or 132, 31 P2d 1106 (1934); Cordrey v. Steamship "Bee," 102 Or 636, 656, 201 P 202 (1922); Caro v. Wollenberg, 68 Or 420, 136 P 866 (1914); Marquam v. Ross, 47 Or 374, 78 P 698, 83 P 852, 86 P 1 (1905); Thompson v. Marshall, 21 Or 171, 27 P 957 (1891).
[2] Libel v. Pierce, 147 Or 132, 31 P2d 1106 (1934); Cordrey v. Steamship "Bee," 102 Or 636, 656, 201 P 202 (1922); Caro v. Wollenberg, 68 Or 420, 136 P 866 (1914); Marquam v. Ross, 47 Or 374, 78 P 698, 83 P 852, 86 P 1 (1905); Thompson v. Marshall, 21 Or 171, 27 P 957 (1891).
[3] Cf., Reitze v. Humphreys, 53 Colo 177, 125 P 518 (1912). | 2f15cacb092b07fe56f1b50bdb8d8fa695bdab8613bcc0f6f2f1bbdc6038fe8d | 1963-09-18T00:00:00Z |
47c90fd7-0794-4e1a-8f41-69b460f59663 | Hirte v. Gladden | 235 Or. 45, 383 P.2d 993 | null | oregon | Oregon Supreme Court | Affirmed July 15, 1963.
*46 Merlin Estep, Salem, argued the cause and filed a brief for appellant.
C.L. Marsters, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Attorney General, Salem.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
GOODWIN, J.
This is an appeal from a ruling denying a prisoner post conviction relief.
The petitioner contended that the forty-year sentence *47 under which he is imprisoned as an habitual criminal was fatally defective because the statute under which he was sentenced was either unconstitutional or was unconstitutionally applied in his case.
1. The trial court held that the petition was barred under the doctrine of res judicata because the petitioner had made three prior efforts in the circuit court to obtain his freedom. Since the petitioner was without counsel when he previously challenged his sentence, those proceedings were not conclusive against him. See ORS 138.540 and 138.550; Anderson v. Gladden, 234 Or 614, 383 P2d 986 (1963).
Even though the trial court may have been in error in treating the petitioner's former proceedings as conclusive against him, however, it does not follow that the judgment below must be reversed. We have the complete record of the proceedings below. We also have the benefit of able briefs and arguments of counsel on the merits of the petition. We are satisfied that there was no deprivation of the petitioner's constitutional rights in the proceedings leading to his present incarceration.
2. The petitioner's first point is that the statute under which he was sentenced was unconstitutional. Since this court has held that habitual-criminal (enhanced-penalty) statutes are not per se repugnant to the state or federal constitutions, it remains only to be seen whether the particular sections now under attack were unconstitutional. See Tuel v. Gladden, 234 Or 1, 379 P2d 553 (1963) where the authorities are collected.
The petitioner was found by a jury to be the same person who had committed at least three felonies as charged in the information of the district attorney. *48 His last conviction was for forgery. He was accordingly sentenced under the following section of Oregon Code, 1930:
The section referred to provides that upon a second felony conviction the person so convicted must be sentenced to a term not less than the longest term [other than life] permitted for a first conviction of such a crime and not more than twice the longest term prescribed upon a first conviction. Thus if a person was convicted of a second offense of forgery, which then carried a maximum term of twenty years, it was mandatory under Section 13-2801 to sentence him upon the second conviction to a term of not less than twenty nor more than forty years.
Under Section 13-2802, (third conviction), the formula relates back to the section which covers second offenses and provides that the punishment for a third conviction of any felony may not be less than the longest term nor more than twice the longest term provided for a second conviction of the same felony. Again, using the example of forgery, for a third offense, the sentence would be not less than forty years nor more than eighty. The petitioner received the *49 minimum sentence prescribed under the sections of the code then in force.
3. While the former statute was somewhat less clear than could be desired, it was not impossible to understand. It was apparently the legislature's intent to avoid the anomaly of doubled life sentences, hence the reference in each section to punishment for a term less than life.
4, 5. It was also the legislative intent to apply a form of geometric progression to the enhanced penalties for recidivists. The petitioner contends that such penalties are disproportionate to the various offenses which may be committed. The possibility that the sentences could run to unservable lengths does not make the statute unconstitutional. It is within the power of the legislature to provide that persons of demonstrated unfitness for life in society shall spend their lives segregated from society after they have accumulated a sufficient number of convictions to satisfy the legislative definition of an habitual criminal. Tuel v. Gladden, supra.
6. There was no constitutional defect in the statute under which the petitioner was sentenced.
Another assignment of error challenges the judgment order which constituted the sentence. The judgment order is prepared on a printed form ordinarily used for sentences imposed upon conviction of a specified crime. Accordingly, the printed matter reads, "* * * The said [Joseph C. Hirte] having heretofore been duly convicted of the crime of [being an habitual criminal] * * *." (The bracketed matter is typed.)
7-9. The information did not charge the petitioner with the crime of "being an habitual criminal," and the *50 jury verdict did not so characterize his predicament. Both the information and the verdict were couched in terms of the identity of the defendant and his having been formerly convicted. There is no such crime as "being an habitual criminal." State v. Little, 205 Or 659, 662, 288 P2d 446, 290 P2d 802 (1955), cert den 350 US 975, 76 S Ct 454, 100 L ed 845. The judgment order fixing the sentence must be read together with the information and the verdict. When the documents are read together it is apparent that neither the petitioner nor the sentencing court were in doubt as to the basis for the sentence. If there is an unfortunate choice of words in the form of the judgment, it does not constitute error. It is clear from the record that the defendant was sentenced for forgery, as a third offender.
Affirmed. | 44fc34bdc632234bc81742ab347b5623c87eba12d344836e582ae16012a3988c | 1963-07-15T00:00:00Z |
361c21a2-d1c0-4107-98c1-380cdd530497 | Short v. Federated Livestock Corp. | 235 Or. 81, 383 P.2d 1016 | null | oregon | Oregon Supreme Court | 235 Or. 81 (1963)
383 P.2d 1016
SHORT
v.
FEDERATED LIVESTOCK CORP.
Supreme Court of Oregon.
Submitted May 6, 1963.
Reversed July 17, 1963.
*82 Hess and Hess, Portland, filed a brief for appellant.
Phillips, Coughlin, Buell & Phillips, Portland, filed a brief for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED.
ROSSMAN, J.
This is an appeal by the plaintiff from a judgment of involuntary nonsuit which the circuit court entered in favor of the defendant after the plaintiff had rested his case in chief and the defendant had made the requisite motion. The action which terminated in that manner was based upon averments that the plaintiff was employed by the defendant as a feeder upon the defendant's hog raising farm near Pendleton and, through the defendant's negligent failure to render its hog pens reasonably safe for the work of its employees when they entered to feed the hogs, sustained injury.
The plaintiff presented evidence showing: (1) in feeding the defendant's brood sows it was necessary for the plaintiff, while carrying a sack of feed weighing 100 pounds, to enter a pen 100 by 100 feet in size in which about 35 sows were enclosed and place the feed in a trough; (2) the sows were ravenously hungry and their weight varied from 400 to 600 pounds each; (3) although the feed trough should have been fastened to the fence so the feed could be deposited in it without the feeder being required to enter the pen, it was not fastened to anything and the sows rooted it about the pen to various places; (4) the sows would observe the plaintiff as he approached the pen carrying the *83 sack of feed and upon his entry into the pen would crowd around him; (5) when the plaintiff, carrying the sack containing the feed, had climbed over the fence and had started for the feed trough, one of the hogs collided with him thereby knocking him to the ground and causing his injury; and (6) in order to bring the hog food to the sow pens from the silo, the plaintiff used a motor truck, but after removing the sack of feed from the truck and starting for the pen, his work was not affected by mechanical devices or power driven equipment.
The defendant's operation was concerned with three types of hogs: boars, brood sows and feeder pigs. At the time of the plaintiff's injury the three types were kept in separate enclosures. The plaintiff fed all three. The boars were kept in small pens, each of which held one to three boars. The plaintiff, in feeding them, entered the pen. The feeder pigs were being fattened for the market and there was available to them a constant supply of feed which the plaintiff put in motion. The feed made its way to them by a mechanical device and the plaintiff was not required to enter their pens. The plaintiff testified that a similar method could not be used in the sow pens. The sows were fed only once per day and since the defendant did not wish them to gain weight, their feed was limited in quantity. The number of sows in a pen varied. When fewer than 35 were in a pen, less than 100 pounds of feed was given to them.
Evidence indicates that it would be practical to fasten the feed trough of the sow pen to the fence and thus render it unnecessary for the feeder to enter the pen. Evidence also shows that fastening the trough to the fence would not hamper the efficiency of the defendant's operations and that the expense would be *84 small. The evidence signifies that if two employees are assigned to the feeding work the danger to the feeder is lessened. His helper attracts the attention of the hogs while he brings the feed to the trough.
The plaintiff, in his efforts to establish the defendant's duties, depended upon (1) the demands of due care exacted by the common law, (2) the "and generally" clause of the Employers' Liability Law (ORS 654.305) and (3) the state's Safety Act (ORS 654.005 through 654.180) together with the rules promulgated under the authority of ORS 654.025 (2).
In its defense the defendant charged the plaintiff with contributory negligence and the assumption of the risks of his employment.
The plaintiff does not claim that any part of the Employers' Liability Law (ORS 654.305 to 654.335) is applicable to this case except ORS 654.305, commonly called the "and generally" clause. It reads:
We have read the transcript of evidence carefully. Apart from its averments of negligence, we do not believe that it describes a commercial hog raising operation that was conducted in a manner substantially different from others in Oregon. In other words, the question is whether the raising of hogs involves "risk *85 or danger" as those quoted words are employed in ORS 654.305.
The complaint charges the defendant with negligence in these particulars: (1) the defendant should have provided a means of feeding the hogs which would not have required the feeder to enter the pens; (2) the defendant should have furnished "adequate work space for complete freedom of movement for the feeder"; (3) the defendant should have provided "barriers" which would have enabled the feeder to reach the trough without interference from the hogs; (4) the defendant did not afford the feeder "a reasonably safe place in which" he could work; (5) the defendant failed to use every device, care, and precaution for the safety of the plaintiff inasmuch as it (a) required him to enter the pen, (b) did not supply barriers, (c) did not provide the plaintiff "with sufficient assistance to keep said hogs away" and (d) did not furnish the plaintiff with "a reasonably safe place to work." Those are the charges of negligence which the complaint submits.
As we have seen, the plaintiff contends that feeding the sows involved "risk or danger" for the feeder to the extent contemplated by those words as they appear in ORS 654.305 the "and generally" clause. The latter does not exact of all operations the high degree of care which it invokes. That degree of care is required only of those operations which involve "risk or danger."
We quote the following from Wells v. Nibler, 189 Or 593, 221 P2d 583:
Other decisions of this court define in language similar to that just quoted the enhanced degree of risk or danger which must be present in an operation to bring it within the "and generally" clause of ORS 654.305. We remain satisfied with their holdings and deem it unnecessary to list them once more. They hold that in order to bring an operation within the "and generally" clause, the evidence must show that it was "attended with inherent risks and dangers." By using the words "enhanced degree of risk or danger," we make no effort to add something to the statute's requirement. We used the words as the equivalent of "inherent risks and dangers."
*87 This court has determined in several cases the application of the Employers' Liability Law to farming operations in which a farm employee sustained an injury. In the cases in which liability was recognized the employee was using power driven machinery or fell through an unenclosed floor opening. In each instance the injury-inflicting instrumentality was at least partially concealed from the injured farm laborer at the moment of mishap. In the case of the floor opening, the farm laborer had never previously been in the structure, the place was dark, and he was wholly ignorant of the opening. In the case of one of the mechanical devices a short bolt that protruded from the shaft was concealed from its victim by its rapidly rotating movement.
1. When the plaintiff entered the hog pen his safety was not endangered by scaffolding, electrical wires, dangerous machinery, floor openings, false work, or any of the other instrumentalities that are specifically mentioned in the Employers' Liability Law. Nor was his safety endangered by equipment similar to that just mentioned. To deem his work as within the purview of the "and generally" clause would compel us to hold that since the hogs' craving for the food which he carried caused them to crowd around him, the operation thereupon became inherently dangerous. The plaintiff saw the hogs as he approached the pen. He had spent virtually his entire life he was 46 years old when injured upon farms and had had much experience with feeding hogs. The danger that confronts a hog feeder is patent and lies directly before him. It is materially different from that which is presented by electrical wires, power driven machinery, unenclosed floor openings and unstable scaffolding. We do not believe that a holding is warranted that *88 the hog pen in which the plaintiff sustained his injury was inherently dangerous within the meaning of those words as they occur in our previous decisions.
The plaintiff presented evidence which indicates that under common law standards the defendant failed to provide for him a place, reasonably safe, in which he could discharge the duties of his employment. The evidence shows that the plaintiff and another of defendant's employees had requested the defendant's foreman to fasten the feed troughs to the fence and that the foreman did not question that fence troughs would enhance safety, but that he replied that the defendant had not set aside any money for that purpose. More than one witness testified that it is dangerous for one feeder alone to enter a pen containing 35 brood sows.
2. Hoffman v. Broadway Hazelwood, 139 Or 519, 10 P2d 349, 11 P2d 814, states in language which has been quoted, "under the common law, it would be the duty of the defendant company to furnish the plaintiff a reasonably safe place in which to work." We think that the evidence shows a violation of that duty sufficient to call for a defense.
3. If the common law required the defendant to fasten the feed troughs to the fences so as to obviate the necessity of the feeder to enter the pen, the plaintiff did not assume the risk of the defendant's neglect. Although a workman does not assume the risk of his employer's neglect to comply with the law's demands, the defense of contributory negligence remains as to his own failure, if any, to exercise due care." Ritter v. Beals, 225 Or 504, 358 P2d 1080, and Hamilton v. Redeman, 163 Or 324, 97 P2d 194.
It follows from the above that the challenged judgment is reversed. | b2853eed527f64d63fe2aa2e63bb18fb353aca6ac0185b97d7f52f08a6805279 | 1963-07-17T00:00:00Z |
6cef4f87-1878-4aac-89b9-c2c8ca11f7c6 | Carey v. Leonard | 235 Or. 107, 383 P.2d 1011 | null | oregon | Oregon Supreme Court | Affirmed July 24, 1963.
Austin Dunn, Baker, argued the cause and filed a brief for appellant.
S.H. Burleigh, La Grande, argued the cause and filed a brief for respondent. On the brief were Burleigh, Carey & Gooding, La Grande.
*108 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
PER CURIAM.
The plaintiff brought this action to recover the reasonable value of his services as an attorney at law. The jury returned a verdict for the plaintiff against the defendant Velate Henderson Leonard, and the defendant appeals.
The defendant assigns as error the failure of the complaint to state a cause of action against the defendant. Apparently the defendant's theory is that since the party who obtained the benefit of plaintiff's services was defendant's son, as alleged in the complaint, this defendant could not be held liable for this debt.
The defendant in her brief states, "It is obvious from reading the complaint that the defendant was acting as the agent for her son in soliciting the services of the plaintiff. * * *" The complaint alleges the defendant "engaged the plaintiff on behalf of her son."
The language used, while subject to the interpretation placed thereon by the defendant, is equally subject to the interpretation that defendant solicited the services herself in her efforts to aid her son, and defendant so understood.
1, 2. No objection to the complaint was made prior to the verdict. It is well established that where no objection is made to the sufficiency of the complaint until after verdict, the complaint is to be liberally construed and a plaintiff is entitled to any fair and reasonable intendment comprehended in the language *109 used. Sullivan et al v. Carpenter, 184 Or 485, 199 P2d 655.
3. The defendant also assigns as error the court's failure to sustain her motion for judgment notwithstanding the verdict. No motion was made for a directed verdict, and in the absence of such a motion, a motion for judgment non obstante veredicto will not be considered on appeal. Merritt v. State Industrial Accident Commission of the State of Oregon, decided this day.
The judgment is affirmed. | 6b3e884ca024e39fa89aaac24be86d791b1dd3f47f485f8868ff6ae34a006aae | 1963-07-24T00:00:00Z |
433bec67-d1d5-4ab9-b0e4-6a14117b3fec | State v. Williams | 236 Or. 18, 386 P.2d 461 | null | oregon | Oregon Supreme Court | Affirmed November 6, 1963.
*19 Albert H. Ferris, Eugene, argued the cause and submitted a brief for appellant.
No appearance for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
O'CONNELL, J.
This is an appeal from a judgment of conviction for the crime of contributing to the delinquency of a minor. ORS 167.210.[1]
The indictment charged that defendant "did * * * wilfully and unlawfully furnish [the named minor] intoxicating liquor in the form of schnapps and beer which act of furnishing said intoxicating liquor did then and there manifestly tend to cause said child to become a delinquent child * * *."
The evidence established that defendant furnished intoxicating liquor to two boys, both minors. One of the boys testified that after furnishing them with *20 liquor defendant made sexual advances toward him. It is contended that the trial court's refusal to sustain defendant's objection to the evidence of sexual misconduct is reversible error. Defendant argues that since the indictment charges only the furnishing of liquor to a minor as the act tending to cause delinquency, the state cannot put into evidence others acts of misconduct by defendant unless such acts aid in the proof that the furnishing of liquor tended to cause the minor to become delinquent.
Although defendant contends that motive is not material to the crime, he concedes that the evidence of sexual misconduct in this case would be relevant to prove defendant's motive in furnishing liquor to the minors. He argues, however, that the indictment did not apprise him of this aspect of the charge and thus deprived him of an opportunity to prepare an adequate defense. He further contends that the evidence was of a kind calculated to incite prejudice in the minds of the jurors and should have been excluded under the principle that evidence having a minimum of probative value and which is highly prejudicial is inadmissible.
1, 2. We are of the opinion that the evidence was properly admitted. We have held that the crime of contributing to the delinquency of a minor is not made out simply by showing that the defendant furnished intoxicating liquor to a minor. The state must show that in the particular case the furnishing of liquor would tend to cause the child to become delinquent. State v. Gordineer, 229 Or 105, 366 P2d 161 (1961); State v. Stone, 111 Or 227, 226 P 430 (1924). This does not mean that the state must show that the minor did in fact become delinquent as a result of defendant's conduct; it is enough if it is shown that defendant's conduct *21 manifestly tended to cause the child to become delinquent.[2]
Whether defendant's conduct has this effect may depend simply upon the setting in which the liquor is furnished. Thus if a child, along with other guests, were served a glass of table wine at a dinner, the jury could find that such conduct on the part of the host would not tend to cause the child to become delinquent. On the other hand, where the defendant furnishes liquor to a child knowing that it is to be drunk for the purpose of feeling the influence of an intoxicant, nothing more need be shown to make out the crime of contributing to the delinquency of a minor. But the act of furnishing intoxicating liquor to a minor may tend to contribute to his delinquency in many ways other than simply causing him to become intoxicated. It is common knowledge that the influence of liquor may cause a child to steal, to destroy the property of others, to make unprovoked assaults on others, to drive automobiles dangerously, and to engage in a host of other delinquencies.
3. It is not necessary that the indictment recite the particular delinquency which resulted from the defendant's conduct in furnishing liquor to the minor. That is a matter of proof at the trial. If the state has evidence showing how other misconduct on the part of the child or on the part of the defendant flowed from the act of furnishing the child with liquor, the state is entitled to present that evidence. And as we *22 have frequently said, the state is entitled to prove its case "to the hilt."
4. An assignment of error was directed at an instruction which informed the jury that it is a violation of the law for a minor to have alcoholic liquor in his possession. Assuming that the court erred in giving the instruction, defendant did not take exception to it. An erroneous instruction not excepted to is not ground for reversal unless reversal is necessary to avoid injustice.[3] We do not think the error was serious enough to warrant reversal.
The judgment of the lower court is affirmed.
[1] ORS 167.210 provides:
"When a child is a delinquent child as defined by any statute of this state, any person responsible for, or by any act encouraging, causing or contributing to the delinquency of such child, or any person who by threats, command or persuasion, endeavors to induce any child to perform any act or follow any course of conduct which would cause it to become a delinquent child, or any person who does any act which manifestly tends to cause any child to become a delinquent child, shall be punished upon conviction by a fine of not more than $1,000, or by imprisonment in the county jail for a period not exceeding one year, or both, or by imprisonment in the penitentiary for a period not exceeding five years."
[2] State v. Dunn, 53 Or 304, 99 P 278, 100 P 258 (1909); Smithson v. State, 34 Ala App 343, 39 So2d 678 (1949); People v. Calkins, 48 Cal App2d 33, 119 P2d 142 (1941); People v. Kinser, 99 Cal App 778, 279 P 488 (1929); People v. Cohen, 62 Cal App 521, 217 P 78 (1923); People v. Brosnan, 361 Ill 545, 198 NE 708 (1935); People v. Klyczek, 307 Ill 150, 138 NE 275 (1923).
[3] Elston v. Wagner, 216 Or 386, 337 P2d 326 (1959); Friel v. Lewis and Lewis, 197 Or 440, 253 P2d 647 (1953); Whitehead v. Montgomery Ward & Co., 194 Or 106, 239 P2d 226 (1952). | 2fe3dce9e08ec32cf5b81622ef8082f339face406151a6f3a05810aa503fafce | 1963-11-06T00:00:00Z |
5b5be1cc-7509-42e2-982a-b6d71e15878a | Pavlicek v. SIAC | 235 Or. 490, 385 P.2d 159 | null | oregon | Oregon Supreme Court | Affirmed September 18, 1963.
Petition for rehearing denied October 16, 1963.
Richard F. May, Woodburn, argued the cause for appellant. On the briefs were Eichsteadt, Gutzler & May, Woodburn.
Thomas C. Enright, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Attorney General, and Ray H. Lafky, Assistant Attorney General, Salem.
*491 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
GOODWIN, J.
The workman appeals from an order dismissing his suit for a declaratory judgment. The proceeding sought, among other things, to have certain provisions (ORS 656.810, 656.812, 656.814) of the Oregon Occupational Disease Law declared unconstitutional.
In September of 1960, the workman discovered a skin condition which required medical treatment. In January, 1961, the condition recurred in a form severe enough to cause the workman to lose work. While being treated, the workman applied to the State Industrial Accident Commission for compensation under the Occupational Disease Law. On May 16, 1961, the Commission notified the workman that his claim was disallowed. The Commission also advised him that he could "reject" the order and submit his claim to the Board of Medical Review, as provided in ORS 656.808. The workman rejected the order and a board of medical review was subsequently selected. The workman was examined by the board. The board concurred in the decision of the Commission and the case was closed. This suit was filed in an attempt to force the Commission into court for a jury trial on the issue of its liability.
Since the Administrative Procedure Act (ORS ch 183) specifically exempts from its operation cases before the State Industrial Accident Commission, and since the Workmen's Compensation Law provides no judicial review for occupational-disease claims, the workman contends that the absence of a specific procedure *492 for judicial review renders the finality clause of the statutory scheme unconstitutional.
The workman has advanced most of the same arguments that were rejected in White v. State Ind. Acc. Com., 227 Or 306, 362 P2d 302 (1961). He also contends that the 1959 amendments to the Occupational Disease Law require a re-examination of the White case. For reasons which will appear, it is not necessary to re-examine the White case at this time.
The trial court held that the challenged sections of the Occupational Disease Law did not offend either the state or the federal constitution. The trial court could have disposed of the case without reaching the constitutional questions, and this court prefers to follow that course. Dodd v. Ind. Acc. Com., 211 Or 99, 310 P2d 324, 311 P2d 458, 315 P2d 138 (1957).
This suit for declaratory relief proceeds upon three assumptions. The first is that the challenged sections of the statutory scheme are unconstitutional. The second is that these sections are severable from the remainder of the statute (which provides the remedy). The third assumption is that when the unconstitutional matter is removed from the statute the judicial review procedures found in the Workmen's Compensation Law automatically would flow into the breach and fill in the procedural steps necessary to make the statutory scheme work.
Thus it is the workman's theory that if he can have the finality clause of the Occupational Disease Law stricken as unconstitutional he will obtain the benefits of the Occupational Disease Law by means of the procedural tools of the Workmen's Compensation Law. Since the workman's assumptions in this regard are mistaken, it is not necessary to decide the constitutional *493 questions tendered in the briefs and arguments.
First it is clear that the legislature, in enacting the procedural sections of the Occupational Disease Law,[1] did not intend to employ the procedural system which was already in operation with reference to the Workmen's Compensation Law. (See ORS 656.286). Trial by jury is no part of the Occupational Disease Law, and cannot be engrafted upon that statutory scheme by judicial construction. ORS 656.810 (3).
It is equally clear that the challenged sections of the Occupational Disease Law are not severable from the remainder of the statutory scheme. Under the test of severability found elsewhere in the code[2] it is apparent *494 that the challenged sections are so essential to the legislative intent that without them the statute would not have been enacted.
The sections deemed by the workman to be unconstitutional may be summarized as follows: ORS 656.810 provides for the convening of a board of medical examiners, and confers upon such board the power to decide certain issues. ORS 656.812 sets forth the method of examination, the requirement of findings, and the issues to be decided. ORS 656.814 makes the findings of the medical board of review final, i.e., not subject to judicial review. It is this last section which, when read together with the first two, invites the question whether the legislature constitutionally may distribute a judicial function to an administrative tribunal and then make that tribunal's judgments final. But it is clear that the constitutionality of the scheme becomes relevant only if the challenged sections are severable, i.e., if any can be removed from the statutory scheme without doing violence to the intent of the legislature. The legislature apparently was of the opinion that there were significant differences between claims for compensation for occupational diseases and claims for compensation for industrial accidents. These differences prompted the legislature to provide that for diseases payments from the state fund ultimately should be screened by medical experts rather than by laymen. The court is satisfied from a reading of the *495 entire statute that the Assembly would not have enacted an occupational-disease law granting compensation under the terms and conditions found in the present code unless at the same time it enacted the challenged procedural sections which cover the processing of such claims. Some of the reasons that may have prompted the enactment of the challenged legislation are discussed in White v. State Ind. Acc. Com., supra. There may be others. It is sufficient for the purposes of this case to hold, as we do, that the challenged portions of the statute are not severable from the remainder thereof.
The workman has not asked us to strike down the entire statutory scheme, for to do so would be to strike down the only basis upon which he could be paid compensation. Therefore, there is no occasion for this court to strike down the statutory scheme. The case may be disposed of without reaching the constitutional questions.
The workman is faced with a dilemma. If the Occupational Disease Law is, as a whole, constitutional, then he is out of court because the decision of the medical board is final. If the challenged sections are unconstitutional, then the entire statutory scheme is defective. Under the pleadings, the workman's only right to recover out of the industrial accident fund would evaporate with the statute creating the right. Since the challenged portions of the statute are not severable from the remainder, the court need not decide the constitutional question. The plaintiff is without a remedy in the case at bar no matter which way the constitutional question might be decided.
Affirmed, costs to neither party.
[1] ORS 656.812 "(1) The medical board of review shall examine the claimant and all the records of his employment and claim, and from such examination make findings upon the issues of the claim.
"(2) Such findings, when made, shall be signed by at least two members of the medical board of review and shall contain the answers to the following questions:
"(a) Does claimant suffer from an occupational disease or infection? If so, what?
"(b) When was such disease or infection, if any, contracted, and approximately how long has claimant suffered therefrom?
"(c) Has such disease or infection, if any, been caused by and did it arise out of and in the course of claimant's regular actual employment in such industrial process, trade or occupation?
"(d) Is such disease, if any, disabling to the claimant?
"(e) If so, to what degree is claimant disabled by such occupational disease?
"(3) If the claim is for the death benefits under ORS 656.802 to 656.824, the medical board of review shall find on each of the questions in subsection (2) of this section as of a date immediately preceding the employe's death and in addition shall find the cause of death."
[2] ORS 174.040 "It shall be considered that it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in force unless:
"(1) The statute provides otherwise;
"(2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or
"(3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent." | f7b039dd5dfd6bbb80b6c90a0812674fa3225219ebc95e38232f81cd2ae17018 | 1963-09-18T00:00:00Z |
3cddf4b0-2739-419b-8dc8-2505fff97951 | State v. Marshall | 234 Or. 540, 382 P.2d 857 | null | oregon | Oregon Supreme Court | Affirmed June 19, 1963.
*541 David M. Spiegel, Portland, argued the cause for appellant. On the brief were Spiegel & Spiegel, Portland.
David Robinson, Jr., Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
PER CURIAM.
Defendant was convicted of violating ORS 164.240 (burglary not in a dwelling) and appeals.
The only question is whether the state failed to prove a material part of the indictment.
The charging part of the indictment was copied verbatim from a printed form of information of felony which alleged that the defendant:
1. Since the indictment charged an intent "to then and there unlawfully and feloniously take and steal *542 therein * * *," the defendant says the state had to prove that the entry was accomplished with the intent to commit grand larceny (a separate felony). Proof of an intent merely to steal is said to be a fatal failure of proof. The state did prove that the defendant stole property, but did not prove that the property stolen was of the value of $75.00 or more, the amount necessary to constitute a separate larceny a felony under ORS 164.310. (Under 164.240, any intent to steal accompanying the unlawful entry is sufficient, as is any intent to commit some felony. State v. Luckey, 150 Or 566, 46 P2d 1042 (1935).)
2. While we approve of neither the garrulity nor the grammar employed in the printed form, its worst defect is the redundant "feloniously". The indictment did not charge a separate larceny or an attempted larceny. Had it done so it would have been bad for duplicity. The state need not have alleged that the intent was to "feloniously" take and steal property after the breaking of the building. Any stealing under such circumstances, however, would be a part of a felonious act and, accordingly, could be described as felonious. The indictment fully advised the defendant that he was charged with the illegal entry of a building with intent to steal. Whether he intended to steal $75.00 or 75 cents is immaterial.
3, 4. The failure to prove an immaterial allegation is not fatal. State v. Waggoner, 228 Or 334, 365 P2d 291 (1961); State v. Dewey, 206 Or 496, 518, 292 P2d 799 (1956); State v. Cook, 154 Or 62, 59 P2d 249 (1936). The test of materiality is whether the word can be stricken out of the indictment. See State v. Russell, 231 Or 317, 372 P2d 770 (1962). If the indictment still charges the same crime after the word is stricken, *543 the word is surplusage. Failure to prove surplusage is not a failure of proof. State v. Waggoner, supra. Neither is it a variance. State v. Cook, supra.
Affirmed. | 87f861c614f3506f7a46421e8b4c34af5b3882272d0ae3bfc95972ee08a1f350 | 1963-06-19T00:00:00Z |
f0aa5320-cd45-4dd0-86a7-57e34c40c178 | Jaeger v. Estep | 235 Or. 212, 384 P.2d 175 | null | oregon | Oregon Supreme Court | Affirmed July 31, 1963.
*213 Gerald H. Robinson, Portland, argued the cause for appellant. With him on the brief were Peterson, Lent & Paulson and Nels Peterson, Portland.
Darrell L. Johnson, Portland, argued the cause for respondent. With him on the brief were Pendergrass, Spackman, Bullivant & Wright, Portland, and Allan G. Carson, Salem.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the plaintiff, Jacqueline C. Jaeger, from a judgment which the circuit court court entered in favor of the defendant, Merlin Estep, Jr. The judgment was based upon a verdict. The action out of which the challenged judgment arose charged that at noon on December 22, 1959, as the plaintiff was driving her automobile in a southerly direction along Cottage Street in Salem, approaching Court Street, the defendant who was driving his car in the same direction ran the front of his into collision with the rear of hers. According to the plaintiff, the collision occurred when she brought her car to a stop in order to permit a car coming from a parking place to her left to enter Cottage Street. The plaintiff charged the defendant with excessive speed, lack of control, failure to yield to the plaintiff the right of way, and failure to maintain a reasonably adequate *214 lookout. The answer denied all averments of negligence.
Cottage Street lies north and south. Court Street and another, which is one block to its north and which is known as Chemeketa Street, lie east and west. Those three thoroughfares are one-way streets. Traffic moves east on Court and west on Chemeketa. Its direction on Cottage is south. All three streets are level and are paved. December 22, 1959, was a bright, clear day. The collision occurred on Cottage Street at a point between Court and Chemeketa Streets. The distance between Court and Chemeketa is 375 feet. The distance between curbstones on Cottage Street is 59 feet. The place of the collision lies within a block or two of the central business district of Salem. The plaintiff placed the scene of the collision about two-thirds of the way from Chemeketa to Court Street. The defendant swore that he had traveled hardly one-third of that distance when the impact occurred.
Both the plaintiff and the defendant were proceeding southerly along Cottage Street. The plaintiff estimated the speed of her car as ten to fifteen miles per hour; the defendant made a similar estimate of his. The defendant thought that he was following the plaintiff's car at a distance of at least two car lengths; his words were:
Both cars were in the same lane on the east half of Cottage Street and each driver intended to turn to the left upon reaching Court Street.
Both the plaintiff and the defendant testified that *215 a car a short distance ahead of the plaintiff was entering Cottage Street from a parking place to the left. The plaintiff had seen it the moment it began to enter Cottage Street. The defendant saw it for only an instant prior to the impact. It was this car that caused the plaintiff to stop.
The defendant testified that while he was following the plaintiff he suddenly heard a loud screeching noise immediately to his rear and that upon looking into his rear view mirror saw a car rapidly overtaking him and then shortly make a sharp turn to the right so as to avoid striking his car. The four cars just mentioned are the only ones with which this case is concerned.
The plaintiff-appellant presents four assignments of error, each of which is based upon instructions given or refused.
The first assignment of error contends that error was committed when the trial juge instructed the jury that:
In challenging the instruction, the plaintiff argues:
The plaintiff does not challenge the instruction as a correct statement of the law.
The plaintiff testified that she had come to a complete stop before the accident and had remained motionless for "between ten and fifteen seconds" before her car was struck by the defendant's. The defendant testified that he likewise was proceeding at about ten to fifteen miles per hour. He thought that he was at least 35 feet to the rear of the plaintiff. It is evident from the commonly used mileage table that if the plaintiff's car stood motionless for ten to fifteen seconds before it was struck and if, as the plaintiff testified, she had come slowly to a stop, the defendant was a material distance behind her as his car approached the scene of the collision. According to the plaintiff, before she stopped she glanced in her rear view mirror and saw no car approaching hers from behind except the one that it developed was the defendant's. She thought that it was "some distance" to her rear.
Zwilling v. Harrison, 269 NY 461, 199 NE 761, held that a proximity of 6 1/2 feet behind another vehicle, where both vehicles were traveling at a rate of twelve to fourteen miles an hour on a city street, did not justify the conclusion that the driver of the car in the rear failed to exercise reasonable care.
Sportsmanlike Driving, 4th ed., by American Automobile Association, page 103, states: "Following distance: Allow at least 1 car length between you and *217 the car ahead for each 10 miles per hour of your speed."
ORS 483.312 provides that the car behind shall not follow "more closely than is reasonable and prudent * * *."
The above facts do not indicate that the defendant was following the plaintiff "more closely than is reasonable and prudent."
The plaintiff testified that after the impact both she and the defendant left their cars and talked to each other. At that time the defendant, so the plaintiff swore, stated: "I'm sorry. It's all my fault. I wasn't looking."
The defendant swore that after he had entered Cottage Street he saw the plaintiff's car ahead of him. Then, according to him, the following occurred:
The defendant testified that after the impact he and the plaintiff had a short conversation in the course of which the plaintiff declared:
The foregoing is the situation that determines this assignment of error.
The plaintiff cites Lehr v. Gresham Berry Growers, 231 Or 202, 372 P2d 488; and the defendant cites Britton v. Jackson, 226 Or 136, 359 P2d 429.
Britton v. Jackson, supra, states:
The decision ruled that "the driver of a motor vehicle must maintain such a lookout as a reasonably prudent person would maintain in the same or similar circumstances." It declared:
Lehr v. Gresham Berry Growers, supra, was not concerned with an instruction upon the emergency rule. It sustained a ruling which directed the jury to return its verdict for the plaintiff upon the issue of negligence. The defendant claimed that its driver saw the plaintiff give no signal before he brought his car to a stop. The stop occurred at an intersection which was protected by an overhead blinker light. The defendant's truck crashed into the rear of the car in which the plaintiff was riding as a passenger. The car in which the plaintiff was riding had stopped at the intersection. We take the following from the opinion:
The words, "one or all of the duties placed upon drivers as above set out," included (1) a duty not to "follow another vehicle more closely than is reasonable and prudent"; (2) not to drive "at a speed which is greater than will permit the driver to exercise proper control and * * * avoid colliding with any *221 person, vehicle * * * entering the highway * * *"; and (3) to maintain a proper lookout.
We quote further from the Lehr decision:
It will be observed that in the case now at bar the plaintiff, unlike the driver in the Lehr case, did not bring her car to a stop at an intersection let alone one marked by a blinker light. Like the driver in the Britton case, she stopped in the middle of the block. Common experience teaches that it is peculiarly desirable that one who stops his car between intersections should give a signal before so doing.
1. The defendant concedes that he saw the plaintiff's car as he followed it along Cottage Street. He *222 claims, however, that he was threatened by an emergency for which he was not responsible. If he spoke the truth and the jury apparently believed him a terrifying incident developed immediately to the rear of his car and the plaintiff, who was in front of him, stopped without giving a signal. If she had no time to give a signal, as she told the defendant, her stop was evidently abrupt. Testimony that the jury could properly believe indicates that the defendant was following her at a distance which was reasonable and safe. There is no evidence that the defendant was traveling at anything but a reasonable rate of speed. As in the Britton case, the issue of emergency was for the jury.
2. This assignment of error is without merit.
In presenting her second assignment of error the plaintiff failed to comply with Rule 19 of this court. That rule, as illustrated in Appendix B, page 35, Rules of the Supreme Court, requires a party who challenges an instruction that was given to the jury to quote the challenged instruction and the objection which he voiced to it in the trial court. In part, the words are: "* * * set out instruction and objection made thereto, both haec verba."
3. The purpose of the rule is to assure accuracy and to facilitate the prompt just determination of appeals. In her reply brief the plaintiff sought to correct the omission by quoting there the objection which she offered in the trial court. We think, however, that the assignment of error failed to set forth the entire instruction to which objection was made. At any rate, the part that was omitted from appellant's brief was necessary to an understanding of the part which the plaintiff attacked. Since counsel sought to make amends in the reply brief, we considered the assignment of error, but found no merit in it.
*223 4. The third assignment of error reads:
In support of the assignment of error the plaintiff argues:
The plaintiff cites Lehr v. Gresham Berry Growers, supra, and states that her contention "is largely based upon the facts and law presented heretofore, particularly in connection with Assignment of Error No. 1." Our disposition of the first assignment of error does not authorize a holding that the defendant "was guilty of neglect as a matter of law." The purported emergency which the jury possibly found was established by the evidence rendered impossible a directed verdict for the plaintiff.
5. The fourth assignment of error reads:
The plaintiff argues: "Under the facts of the case at bar, the negligence of the defendant was manifest and the mere occurrence of an accident under these circumstances raises a presumption of negligence." The plaintiff cites Lehr v. Gresham Berry Growers, supra.
We have complete confidence in the Lehr decision and no desire to weaken it or detract from it. However, in that case the rule of emergency was not considered nor was there any basis for applying it. In that case, after the plaintiff had made a regular stop at the marked crosswalk of an intersection, his car was struck in the rear by the defendant's. The intersection was protected by a blinker light which was in operation. There was also at the intersection a public schoolhouse with children who had come from it preparing to cross the street. Accordingly, the defendant, before crashing into the rear of the plaintiff's car, had notice that cars might stop at the intersection. No such facts are present in the case now before us. In the present case the plaintiff stopped her car not at an intersection but between intersections; and, in speaking to the defendant immediately after the impact, conceded that she had given no signal of her intention to stop. We find no merit in this assignment of error.
This case was ably and thoroughly tried. The instructions were fair and comprehensive. Those that are now challenged dealt with common matters of everyday understanding with which every juror gains some knowledge as he moves about the city.
The above disposes of all the assignments of error. The challenged judgment is affirmed. | ba453f7838fb70f85504cdb4205a2d65bb096b440851cfdc970881ae9a67bcc3 | 1963-07-31T00:00:00Z |
245d4bfb-589b-4673-a1ce-d2e1cac3565d | Owens v. Goss | 235 Or. 102, 383 P.2d 1013 | null | oregon | Oregon Supreme Court | Affirmed July 24, 1963.
*103 Walter H. Evans, Jr., Portland, argued the cause for appellant. With him on the brief were Evans & Kennedy, and William H. Boland, Portland.
William H. Morrison, Portland, argued the cause for respondent. With him on the brief were Winfrid K. Liepe, and Maguire, Shields, Morrison, Bailey & Kester, Portland, and Chas. A. Phipps, The Dalles.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
McALLISTER, C.J.
This is an action to recover damages for personal injuries sustained by plaintiff when his automobile was struck by an automobile driven by defendant. The defendant admitted that his negligence in failing to keep a proper lookout and in failing to warn was a proximate cause of the collision, but charged plaintiff with contributory negligence in driving at an excessive speed, in failing to keep a proper lookout, and in failing to exercise proper control. The jury returned a verdict for defendant, and plaintiff appeals.
The questions presented for decision on appeal are:
(1) Whether there was any substantial evidence from which the jury could find that plaintiff was contributorily negligent in:
(a) driving at an excessive speed,
(b) failing to keep a proper lookout, and
(c) failing to exercise proper control.
(2) Whether the inadvertent transposition of "plaintiff" and "defendant" by the court in one of its instructions constituted prejudicial error.
The collision occurred at the intersection of Tenth *104 and Union Streets in The Dalles, at about 7:00 o'clock p.m. on March 23, 1959. It was dark and the pavement was dry. Union Street is an arterial street running north and south, and is intersected at right angles by Tenth Street. Plaintiff was driving south on Union Street and defendant was driving west on Tenth. There were stop signs on both sides of Union Street, directing traffic on Tenth Street to stop before entering the intersection. At the time of the accident there was a light hanging over the intersection flashing an intermittent yellow caution signal in all directions. There was a house at the northeast corner of the intersection, situated about 33 feet from the east curb line of Union Street. The collision occurred in the northwest quadrant of the intersection.
Plaintiff testified that he was driving at a speed of about 20 to 25 miles per hour; that he thought the intersection was clear and after he entered the intersection he "looked back sort of" and saw the headlights of defendant's car coming at him.
The defendant was a deputy sheriff on his way to investigate a report of a shooting incident. His headlights were burning, and there was evidence from which the jury could have found that a red light on the dashboard just inside the windshield was flashing. The siren with which defendant's vehicle was equipped was not operating.
Defendant testified that he was driving west on Tenth Street at about 20 to 25 miles per hour; that he was about 25 feet from the intersection when he looked to his right and saw the headlights of a car approximately 100 feet north of the intersection; that he believed the approaching car was not "so close as to be an immediate hazard"; that he slowed down but did *105 not come to a stop, that he thought he "had the clear" and then "stepped on it in second and started across."
We are satisfied that the court did not err in refusing to withdraw from the jury the specifications of contributory negligence relating to speed, lookout and control. Whether plaintiff was negligent and whether his negligence was a contributing cause of the collision were questions for the jury. To hold that all three specifications, speed, lookout and control, should have been withdrawn would be to hold that as a matter of law plaintiff was not negligent. Such a holding clearly would not be warranted under the facts of this case. Plaintiff's own testimony that he was in the intersection before he saw the lights of defendant's car would support a finding that he was not keeping a proper lookout.
1-3. The flashing yellow light required plaintiff to proceed through the intersection "only with caution." Caution necessarily involved speed, lookout and control. Plaintiff's speed might have been reasonable if he had been keeping a sharp lookout and had his car under a full measure of control. If his lookout was inadequate then his speed may have been excessive and his control also inadequate. These questions are "interrelated and mutually dependent," Nicholas v. Fennell, 184 Or 541, 551, 554, 199 P2d 905; they are jury questions in this and similar cases. The fact that plaintiff was on an arterial street did not relieve him of the duty of exercising due care with reference to speed, lookout and control. See Wilson v. Overbey, 223 Or 256, 259, 354 P2d 319, and cases there cited.
Although we have held in several recent cases that it was not error to withdraw from the jury the allegation of negligence based on excessive speed, Wilson v. *106 Overbey, supra, Johnson v. Bennett, 225 Or 213, 357 P2d 527, Krening v. Flanders, 225 Or 388, 358 P2d 574, those cases are not apposite here.
4. We think the inadvertent transposition of "plaintiff" and "defendant" in one instance by the court in his instructions to the jury did not confuse the jury and was harmless.
The judgment of the lower court is affirmed. | 405ccd7be37093c6e4d6ee409bc929e0836505126293b2442378de53049290a7 | 1963-07-24T00:00:00Z |
40a5d38a-37e7-4282-afb8-2ba52c0e6a09 | State v. Betts | 235 Or. 127, 384 P.2d 198 | null | oregon | Oregon Supreme Court | Affirmed July 24, 1963.
*129 David C. Silven, Baker, argued the cause and filed a brief for appellant.
Jesse R. Himmelsbach, Jr., District Attorney, Baker, argued the cause and filed a brief for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
DENECKE, J.
The defendant was convicted of negligent homicide. A passenger in a vehicle driven by the defendant was killed when the car left the road and crashed. The defendant was indicted pursuant to ORS 163.091, the pertinent part of which is as follows:
The indictment against the defendant charged as follows:
1. The defendant, at the beginning of the trial and during the trial, moved to require the state to elect whether it was proceeding under the above-quoted statute or under a combination of the driving while under the influence of intoxicating liquor statute and the manslaughter statute.
ORS 483.992 makes driving while under the influence of intoxicating liquor a crime. ORS 163.040 states that, "Any person who, in the commission of any unlawful act * * * involuntarily kills another, *131 is guilty of manslaughter." However, this same section, in addition, provides: "The provisions of this subsection shall not apply to the killing of any person where the proximate cause of such killing is an act or omission defined as negligent homicide in ORS 163.091."
The District Attorney conceded that he was proceeding under the negligent homicide statute and not the manslaughter statute. The court made it clear in its instructions that the charge against the defendant was gross negligence and not driving while under the influence of intoxicating liquor. The trial court instructed the jury that whether or not the defendant was under the influence of intoxicating liquor was only a circumstance to be considered in determining whether or not the defendant was grossly negligent in the three particulars charged: speed, control and driving on the left side.
While the defendant's motion to elect was denied, the action of the state and the trial court effectively confined the proceedings to one for negligent homicide by driving in a grossly negligent manner. This is all the defendant would have received if his motion had been granted. Therefore, this assignment of error is not well taken.
2. The defendant contends that there was no evidence from which the jury could find the defendant guilty of gross negligence. The defendant contends: "The State was required to establish more than one negligent act committed under such circumstances as to constitute gross negligence," and cited Williamson v. McKenna, 223 Or 366, 400, 354 P2d 56. The particular portion of Williamson v. McKenna, supra, cited by *132 the defendant, took cognizance of those cases in which a series or combination of negligent acts transformed defendant's conduct to the level of gross negligence. However, neither that decision nor any other decision holds that in order to prove gross negligence there must be proof of two or more negligent acts. Evidence of excessive speed, lack of control, etc., alone, under certain circumstances can amount to proof of gross negligence.
3. In this case there was evidence from which the jury could determine that the defendant was grossly negligent by reason of his excessive speed and lack of control. There was testimony that he was traveling at a speed of 90 miles an hour. The car failed to make a curve. The vehicle went off the highway at the beginning of the curve. It was light and dry. The road was two lane. It appears to have a blacktop surface. The shoulders were gravel. There was a "Slow" sign, a sign indicating a curve, and a sign stating the indicated speed was 45 miles per hour. The signs warning of the curve were visible approximately a quarter of a mile from the point where the car left the highway. There was evidence that the defendant was intoxicated. Earlier, he had driven the car in an erratic manner. His speed at an earlier time had been too fast. The car owner, who was a passenger, so testified. She stated that at that time she asked the defendant to slow down and, according to her, he did.
Two recent civil gross negligence cases most resembling the present one are Bland v. Williams, 225 Or 193, 357 P2d 258, and Holman v. Barksdale et al, 223 Or 452, 354 P2d 798. In Bland v. Williams, supra, the driver's speed was 60 miles per hour in the fog and he failed to make a curve. This court held that as a matter of law the defendant was not grossly negligent *133 because the evidence was that he failed to make the curve because of momentary inadvertence rather than excessive speed or lack of control. In Holman v. Barksdale, supra, the speed was 40 miles per hour. The defendant started to enter a curve and then realized his speed was too fast for safety so he applied the brakes; this caused him to lose control of the car and skid off the road. This court held that as a matter of law there was no gross negligence. The above statements of fact in these two cases in our opinion clearly distinguish them from the present case.
4. Over defendant's objection testimony was introduced that one-half hour before the accident the defendant made such an accelerated start that he left ten feet of tire marks. Defendant contends such evidence is too remote to have any relevancy on the question of what caused the death. Both before and after Williamson v. McKenna, supra, the host's driving prior to the time and place of the accident has been considered relevant upon the issue of what was the host's state of mind at the time of the accident. Keefer v. Givens, 191 Or 611, 630-631, 232 P2d 808; Morris v. Williams et al, 223 Or 50, 57, 353 P2d 865.
The trial court did not err in the introduction of such testimony.
5. The defendant requested the following instruction, which was not given:
Defendant assigns the court's failure to so instruct as error. The trial court gave no instruction on this subject.
The extent of damage to the automobile, skid marks, and the distance the vehicle travels after it has left the highway are relevant on the question of speed. Burghardt v. Olson, 223 Or 155, 167, 349 P2d 792, 354 P2d 871; Goodale v. Hathaway, 149 Or 237, 39 P2d 678.
6. Cameron v. Goree, 182 Or 581, 602-606, 189 P2d 596, held that the car damage in that case was not evidence of excessive speed, as such damage could just as reasonably have been inflicted by a car driven at a reasonable speed. That decision recognizes that car damage may, in some instances, indicate excessive speed. Similarly, Lemons et al v. Holland et al, 205 Or 163, 189, 284 P2d 1041, 286 P2d 656, is a case in which the court found that the skid marks, debris and the distance the body was thrown did not furnish evidence of any excessive speed, as such physical facts could just as probably have been caused by a car driven at a reasonable speed.
In this case the 271 feet of skid marks on the highway, the 42 feet which the car then soared through the air, the 50 feet which the car then plunged through a filled irrigation ditch, and the last 47 feet which it *135 plowed through a field is certainly relevant evidence which a jury could consider in determining whether or not the defendant was traveling at an excessive speed.
7. The trial court gave the following statutory instruction:
The defendant excepted to this on the ground that it was comment on the defendant's failure to testify on his own behalf.
We have repeatedly held that in a criminal case the giving of the above-quoted instruction should be avoided unless limited to the state's case, but so instructing is not reversible error, particularly when the court also instructs, as it did here, that the jury can draw no unfavorable inference from the defendant's failure to testify. State v. Holleman, 225 Or 7, 357 P2d 264; State v. Patton, 208 Or 610, 612, 303 P2d 513; State v. Thomson, 203 Or 1, 16, 278 P2d 142.
The physician who treated the defendant when he was brought into the hospital after the accident was permitted to testify to defendant's injuries, defendant's speech and smell and to give his opinion that the *136 defendant was intoxicated. The defendant objected to this testimony on the ground that this was information obtained from a confidential relationship and, therefore, inadmissible without the defendant's consent. The physician testified that he considered his examination and treatment of the defendant to be in the course of his physician-patient relationship.
ORS 44.040 provides:
This statute was enacted in 1862. Deady's Code, Civ Code, § 702. The privilege was later extended to the stenographer-employer and nurse-patient relationship.
8. It should be noted that the part of the statute pertaining to physicians states, "in a civil action, suit or proceeding." (Emphasis added.) This statute, however, must be considered in conjunction with ORS 136.510, which provides:
The question is, under these two statutes, is information obtained by a physician from a patient privileged in a criminal proceeding?
*138 Under the last-quoted statute it seems clear that all statutes of general applicability relating to evidence are applicable to criminal proceedings unless a criminal statute states to the contrary. For example, ORS 41.690 generally provides that records made in the regular course of business are admissible. This statute does not state it is applicable in civil actions, criminal proceedings, or contain any restrictive language. It is obvious that under the last-quoted statute it governs criminal proceedings unless there is a specific criminal statute providing to the contrary.
Here, however, we do not have a statute such as that given in the example. The specific words of the statute restrict parts of it to civil actions, a part to criminal proceedings, and parts have no restrictions stated. In the subsection relating to husband and wife it states, "The exception does not apply to a civil action, suit or proceeding, by one against the other, or to criminal action or proceeding for a crime committed by one against the other."
The only other subsections in which the restrictive words, "in a civil action, suit or proceeding" appear are those relating to physician-patient and nurse-patient. The subsections relating to attorney-client, priest-penitent, public officer-official confidence and stenographer-employer contain no restrictive words, no reference to civil actions or criminal proceedings. Because of this we conclude that the meaning and intention of the statute making civil rules of evidence applicable to criminal proceedings and the statute creating the privilege are not clear. The answer to the problem cannot be found from the words of the statute.
Washington and California have statutes similar to both of those above quoted and have come to opposite *139 conclusions about the admissibility of such testimony.
From State v. Miller, 105 Wash 475, 178 P 459 (1919), through State v. Sullivan, 60 Wash2d 214, 373 P2d 474 (1962), the Washington court has held such information to be privileged in criminal, as well as civil, cases. The California court has as consistently held such information is not privileged. People v. Lane, 101 Cal 513, 36 P 16 (1894). For an example of a more recent case see People v. Dutton, 62 CalApp2d 862, 145 P 676 (1944).
Utah also has two similar statutes. Its court followed the California precedents and held the testimony not privileged. State v. Dean, 69 Utah 268, 254 P 142 (1927). In State v. Bounds, 74 Idaho 136, 258 P2d 751 (1953), this question was answered by the Idaho court. It only considered the Idaho privilege statute, which reads like Oregon's, and states that the privilege exists in civil proceedings. The Idaho court expressly rejected the Washington precedents and held that privilege did not extend to criminal proceedings.
Pennsylvania has a privilege statute similar to that of Oregon and Idaho, stating that physician-patient communications are privileged in civil proceedings. The Pennsylvania court held that the privilege did not apply in criminal proceedings. Commonwealth v. Edwards, 318 Pa 1, 178 A 20 (1935).
The latest edition of Wigmore, 8 Wigmore, Evidence (McNaughton Rev 1961), §§ 2380 et seq, persuasively attacks the privilege in either civil or criminal proceedings. Because of the Oregon statute there is no question, however, that in this jurisdiction the privilege exists in civil proceedings.
*140 9. Ostensibly, making communications between physician and patient privileged was to facilitate the physician's accomplishing his mission, i.e., diagnosing and curing the patient. It has been stated that if the information obtained from this relationship is not privileged, the patient will not reveal all pertinent information to his physician and the physician will, therefore, be handicapped in his treatment of his patient. Edington v. Mutual Life Ins. Co., 67 NY 185, 194 (1871). Wigmore, supra, § 2380a, convincingly attacks this supposition. Professor Morgan joins in this attack; Foreword to Model Code of Evidence, pp 28-30.
10, 11. Assuming this supposition does have some basis in fact and the privilege is responsible in some instances for a physician being better able to perform his mission, it is still necessary to examine the other side of the proposition. How is the public welfare, that part that is dependent upon the efficient administration of criminal justice, served by the privilege? Unquestionably, the administration of criminal justice is impeded by the privilege. A physician attending a defendant is frequently the sole or most competent source of very relevant evidence. In the present case the physician was the person best qualified to testify to a relevant fact, was the defendant intoxicated? In other cases the question could be, was the defendant under the influence of narcotics or how recently did the defendant's wound appear to have been inflicted? It seems obvious that the testimony of the treating physician is highly important in many criminal cases.
We conclude that the dubious benefit provided by throwing the veil of privilege over the patient-physician relationship is outweighed in criminal proceedings by the advantage to the public secured by the efficient administration of criminal justice which is *141 obtained by permitting the introduction of competent and relevant evidence which the physician can give about his patient. Upon the basis of this belief the Oregon statutes are interpreted as limiting the physician-patient privilege to civil proceedings. The trial court was correct in permitting the physician to testify.
12. The defendant assigned as error the trial court's failure to remove from the consideration of the jury the two specifications of gross negligence that the defendant failed to keep the vehicle under control and drove the vehicle upon the left side of the highway. The previous statement of facts makes it apparent that the charge of lack of control presents a question of fact. See McReynolds v. Howland, 218 Or 566, 346 P2d 127, in which the correlation between speed and control is examined.
With respect to the charge of driving on the left side of the highway, the trial court, after denying defendant's motion to strike this specification, instructed the jury in this respect in the language of the Oregon Motor Vehicle Laws. ORS 483.308. The applicable part of that statute requires:
13. Under this statute this court has held "a failure to keep to the right when there is nothing to the left which will be affected by the car's presence there does not condemn the driver as negligent." Barnes v. Davidson *142 et al, 190 Or 508, 520, 226 P2d 289; Newbern v. Exley Prod. Exp. Co., 212 Or 458, 469, 320 P2d 678. We now hold specifically that this statute has no application unless other traffic is involved in the accident.[1] When part (2) of the statute is read in conjunction with part (1) the intent of the statute is clear. Part (1) directs that one shall not drive on the left side of the road when passing other cars unless one can clearly observe the left side and that side is clear of oncoming traffic. Part (2), in effect, states that, passing or not, one shall not drive to the left side when the driver's ability to see oncoming traffic is obstructed by the crest of a grade or a curve.
14. For the reasons above stated the trial court's refusal to withdraw the specification of gross negligence that defendant drove on the left side of the road and its instructing the jury in this regard is error.
The remaining question is whether the proceeding should be reversed because of this error.
Art VII, § 3, of the Oregon Constitution provides:
This court has recently affirmed convictions in criminal appeals in which it was found that error had occurred but the court was of the opinion that the judgment of conviction was one that "should have been rendered in the case." State v. Clark, 227 Or 391, *143 362 P2d 335 (Instruction to the jury that if the court erred the defendant has an appeal to a court where any error can be corrected; rape conviction affirmed.); State v. Braley, 224 Or 1, 355 P2d 467 (The trial court erred in failing to instruct concerning the effect of intoxication upon the defendant's capacity to commit the act with premeditation; the conviction of first degree murder was reduced to second degree.); State v. Cahill, 208 Or 538, 575, 293 P2d 169, 298 P2d 214, cert den 352 US 895, 77 S Ct 132, 1 L ed2d 87 (The trial court erred in admitting evidence on the issue of forgery of a signature on a receipt for public funds; the conviction for conversion of public funds affirmed.)
However, in State v. Wederski, 230 Or 57, 368 P2d 393, this court refused to affirm a conviction although urged to do so under this Oregon constitutional provision. The error was the district attorney's argument to the jury. He argued that a state's witness would have testified favorably if the opportunity had offered itself. Also, an indirect comment upon defendant's failure to take the stand was made.
We do not know what the verdict would have been had the error in this case not occurred. This is never possible. The charge of gross negligence by driving on the left side of the road seems inconsequential and technical to this court. The charges of speed and control seem to be the heart of the case. The defendant was on the left because his speed and lack of control prevented him from staying on the right. Whether or not the jury so viewed the case we do not know.
Nevertheless, we construe the constitutional command to require that if we believe the jury almost certainly would have, and ought to have, reached the verdict it did, without the erroneous ruling and instruction, *144 we must affirm the judgment. We find that is the situation here.
Without again reviewing all the facts, those so overwhelming against the defendant are the course of the car as shown by uncontradicted physical facts, indicating great speed and lack of control, and the evidence of defendant's intoxication.
Pursuant to the constitutional provision above quoted the judgment is affirmed.
PERRY, J., specially concurring.
I am unable to agree with the majority that under the statutory law of this state information obtained by a physician in the treatment of a patient is privileged only in civil matters and has no application to criminal cases. In my mind there is no ambiguity in the statutes such as seems to exist in the minds of the majority. I would follow the interpretation placed upon similar statutes by the Supreme Court of the State of Washington, that the statute applies in both situations. State v. Sullivan, 60 Wash2d 214, 373 P2d 474; State v. Miller, 105 Wash 475, 178 P 459. However, I concur in the result reached by the majority.
The evidence of the physician was merely cumulative and did not constitute prejudicial error. Also, the information obtained by the physician was such as could have been obtained and in fact was obtained by laymen. It was therefore not of a confidential nature as contemplated by the statute.
[1] Driving on the left when such driving is prohibited by statute is a traffic offense, however, regardless of whether or not other traffic is in the vicinity. | 91712638206a3a78f23f1e705ff9c21d4dbea0c6790ef8e99638afae7cc25608 | 1963-07-24T00:00:00Z |
b78936e9-e76b-4e52-a4a4-258032de2baf | Highway Commission v. Anderson | 234 Or. 328, 381 P.2d 707 | null | oregon | Oregon Supreme Court | Reversed and remanded May 22, 1963.
*329 J. Robert Patterson, Assistant Attorney General for Oregon, argued the cause for appellant. On the brief were Robert Y. Thornton, Attorney General for Oregon, and L.I. Lindas, Assistant Attorney General and Chief Counsel for Oregon State Highway Commission.
Frederic H. Starkweather, Jr., Gold Beach, argued the cause for defendants. With him on the brief was William N. Wallace, Gold Beach.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
PERRY, J.
This is an action brought by the state to appropriate, through its power of eminent domain, certain property of the defendants in Curry County, Oregon. From the judgment entered, the plaintiff has appealed.
The record discloses that the property to be acquired by the state lies along the Pacific Ocean. Seventeen acres are to be used in the construction of U.S. Highway 101, and approximately 38 acres will be developed for park purposes.
*330 The evidence of the defendants is that at the time they acquired the property to be taken, the top soil consisted almost entirely of sand, which was drifted about by the winds; that in 1928 the defendants planted some beach grass, Ammophila Arenaria, for the purpose of stabilizing the top soil. The defendants did not testify as to any expense on their part in planting this grass. Testimony was also introduced that the land was now 85 to 95 per cent stable and suitable for the construction of homes thereon. Over the objection of the plaintiff, the trial court permitted a witness for the defendants to testify, as follows:
The plaintiff assigns the trial court's ruling as error.
1-3. It is well established that in the total taking of private property the jury is to determine the fair cash market value of the land taken. It is equally well settled that value is to be determined on the basis of the condition of the property at the time of the taking, considering its adaptability for general or special use. State of Oregon v. Cerruti et al, 188 Or *331 103, 214 P2d 346. Fair cash market value includes not only the land, but any structures or improvements developed and placed thereon prior to the taking which would increase the value of the whole. State Highway Comm. v. Superbilt Mfg. Co., 204 Or 393, 281 P2d 707.
In considering the question presented we are not dealing with structures or improvements which have been placed upon the land which would enhance its market value. We are here concerned only with the true market value of the land itself in the condition it was at the time of the taking.
The land at the time of its taking either was fit for the construction of buildings thereon, or it was not. If the land taken was already adaptable as beach property upon which structures could be erected, then it had a general use and market value for that purpose. If it was not so usable, as contended by plaintiff, the evidence admitted would be improper as showing a speculative value based on a probable use at some future time. State of Oregon v. Cerruti et al, supra.
4, 5. There are cases in which the cost of improving of land is admissible for the purpose of tending to cast some light on market value, but only where the improvement is of a character having no value except in connection with the particular business or special uses of the owner and there is no general market for the improvement (Commonwealth v. Stamper (Ky 1961) 345 SW2d 640; Arkansas State Highway Commission v. Richards, 229 Ark 783, 318 SW2d 605) or where structures or improvements have been erected or added which in and of themselves have increased the true cash market value of the property over and above the value of the land itself when considered *332 in the light of its highest and best use at the time of the taking. 4 Nichols on Eminent Domain, 3d Ed, §§ 12.313 and 13.11. See, 4 Nichols on Eminent Domain, 3d Ed, § 12.1 at page 17. But this is not such a case, for there is no showing that the land was improved for a special use by the defendants, or that it was of such a peculiar character that the owners' loss could not be measured in money in a market lacking willing buyers, or that the expenditure of $310 per acre to stabilize the sand would raise the market value.
6. It is the true market value of the property and not the cost of it that is protected by the Fifth Amendment. Brooks-Scanlon Corp. v. United States, 265 US 106, 44 S Ct 471, 68 L Ed 934.
We are unable to conceive how the cost of improving land for a general use would in any wise reflect true cash market value, where the cost did not improve its use over and above the market value of other land that could be used for the same purpose. To permit the use of cost to the owner as a factor in determining true market value in a case such as this would draw into the case a factor which would be grounds for the suspicion that the jury would make an award at least equal to the owners' cost, although the true market value of such property would bear little relation thereto. Bonbright, Valuation of Property, Vol. 1, page 147.
Prejudicial error was committed in permitting the introduction of this evidence.
The cause is reversed and remanded. | 6ed295546a551204d50002250b10b23bccd923303b475cea54bc668e0f627a36 | 1963-05-22T00:00:00Z |
7a027dc6-ddb2-4952-b15e-938020ccf5c8 | American Reciprocal Insurers v. Bessonette | 235 Or. 507, 385 P.2d 759 | null | oregon | Oregon Supreme Court | Reversed August 2, 1963.
Petition for rehearing denied October 17, 1963.
*508 Richard E. Miller, Eugene, argued the cause for appellant. With him on the briefs were Robert E. Moulton, Eugene and Robert J. Johnston, Portland.
William G. Wheatley, Eugene, argued the cause for respondents. On the brief were Jaqua & Wheatley, Eugene.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED.
SLOAN, J.
We could not improve upon appellant-plaintiff's statement of this case taken from its brief:
Decision in this case is governed by the recent case of Strandholm v. General Construction Co., decided June 12, 1963, 235 Or 145, 382 P2d 843. Obviously, the trial judge did not have the advantage of the decision in Strandholm when he decided this case, nor did counsel at the time the case was submitted here.
1, 2. It is claimed that even though the privity of contract doctrine may not apply to manufacturers and the like, it should apply to building contractors. We think such a distinction cannot be justified. See text and cases cited in 1 Products Liability, 1960, Frumer & Friedman, § 5.03(2), page 37, and Prosser, Torts, 1955, § 85, page 517-19; Hanna v. Fletcher, 1956, 97 App D.C. 310, 231 F2d 469, 58 ALR2d 847. And, it is held that the lapse of time which may exist between the time of negligent construction and eventual injury is a factor for the jury to consider in determining the causal connection between the negligence and the injury. Leigh v. Wadsworth, 1961, Okla, 361 P2d 849; Hale v. Depaoli, 1948, 33 Cal2d 228, 201 P2d 1, 13 ALR2d 183; Begley v. Adaber Realty & Investment Company, Mo, 358 SW2d 785; and see the excellent opinion by Judge Murrah in Pryor v. Lee C. Moore Corporation (USCA 10th Cir 1958), 262 F2d 673, which overruled a prior case (Lynch v. International Harvester Co. (CCA, 10th Cir 1932), 60 F2d 223) in the same circuit; 1 Products Liability, 1960, Frumer & Friedman, § 11.03.
After the trial judge had found that defendants were factually liable he denied any of the damage suffered *510 by the tenant because of the lack of privity. The Strandholm case holds that there was a duty in spite of the lack of privity, so this case must be reversed. Inasmuch as the only issue now left undetermined is that of damages the cause is remanded for the purpose of finding the amount thereof. Scott et al v. Lawrence Whse. Co., 1961, 227 Or 78, 101, 360 P2d 610.
ROSSMAN, J., dissenting.
I do not believe that this case calls for the statement of the legal principles which govern the liability, if any, of a contractor to a person who, after completion of the building, becomes one of its tenants and later claims that through defective construction of the building he sustained damages.
In this case the persons whose rights are under analysis are the following: (1) the owners, (2) a lessee of the owners, (3) the general contractors, that is, the defendants who constructed the building, (4) another contractor who, under contract directly with the owners, installed the sprinkler system, and (5) the plaintiff, an insurance company which paid to the owners and the lessee damages that they incurred when water entered the building and who now claims that it is subrogated to the rights of the owners and the lessee.
The plaintiff claims that (1) it was the insurer of the owners of the building and one of the lessees, (2) a water pipe which lay under the floor of the building broke when the building settled, (3) the owner and the lesee were damaged when water entered the structure, (4) obedient to the terms of the policies of insurance which it had written, it paid the owners and the lessee the amounts of their damages, and (5) it became *511 subrogated to the rights of the owners and the lessee against the contractor.
The circuit court awarded the plaintiff nothing on account of the sum which it had paid to the lessee, but awarded to the plaintiff judgment for the amount it had paid to the owners. The plaintiff challenges on appeal the refusal of the circuit court to grant judgment against the contractor, that is, the defendants, for the amount the plaintiff had paid to the lessee. The opinion of the majority reverses the judgment as to the lessee's claim and remands the case so that judgment may be entered for the loss that the tenant sustained. I am satisfied that the pleadings contain no averments whatever which permit the entry of judgment for the tenant's loss. The transcript of evidence is not before us. We have only the pleadings and the findings. Neither warrant the action which the majority is taking. A legally sufficient complaint must always precede the entry of judgment. A wrong must have been done by the person against whom a court is asked to enter judgment.
There is a material distinction between a transaction in which one buys an article, such as an automobile, that later proves to be defective and another transaction in which he contracts for the construction of a building. When one buys an automobile, the latter is a finished product which stands before him and which he may see. It was not built according to any plans, specifications or directions which he gave.
Before a building contractor starts his work, the building is only a subject of contemplation. Possibly nothing more tangible than preliminary plans exist at that point. If the preliminary discussions are favorable, an architect will prepare plans and specifications. Then will come the bids and if one of them *512 is satisfactory, a contract will be drafted which later will be signed by the owner and the contractor. The contract always incorporates within itself the plans and specifications. It requires the contractor to build the structure as designated in the plans and specifications. It likewise provides that the owner must accept and pay for the structure if it is built in accordance with the plans and specifications. Still later, when all construction work has been completed, the architect will certify to the owner, if the contractor was faithful to his contract, that the contractor has abided by his contract, that payment should be made, and the building should be accepted.
The basic legal principle which governs transactions concerning a finished product is the law of sales. The basic legal principle which governs the construction of a building is the law of contracts.
It may be that through an occurrence for which the contractor is not responsible, such as settling of the building, a defect develops and someone sustains injury. Possibly, the person who sustained injury was not a party to the contract between the owner and the contractor. A development of that kind projects the type of issue that is now before us. It should not be settled by over simplification. The contract must receive attention. We should not merely inquire whether the contractor was negligent; we must give attention to the contract.
In the case at bar, the lessee did not sign the building contract. The plaintiff, that is, the insurance company, wishes this court to hold that the contractor owed a duty to the lessee one and one-half years after the owner had accepted the building. In my opinion, the complaint wholly fails to allege any basis for a duty of that nature; and therefore I do not believe *513 that the issue is before us. I think that we should not reverse the challenged judgment.
The plaintiff itself recognizes the challenge to the sufficiency of the complaint. It wishes to use the complaint as the basis for obtaining judgment for the purported loss sustained by the lessee. Its own brief states:
Now, let us see whether the complaint charges the defendants with either of the following: (1) the breach of any phase of the contract into which the defendants and the owners had entered resulting in the breaking of the pipe, or (2) the construction of a building which was dangerous.
The complaint alleges that:
*514 Thus, we see that the complaint itself alleged that the parties entered into "an agreement in writing" for the construction of this building according to plans "prepared by W.E. Mackie, Architect."
It is next alleged that the owners "entered into a separate agreement" with a corporation known as Pacific Automatic Sprinkler for the construction of the sprinkler system.
Another paragraph of the complaint alleges that the defendants, in compliance with their agreement as the general contractors, constructed a concrete wall within the building "which separates the drug repack room from the warehouse proper." The complaint describes the function of this wall as being not only to separate the structure into two parts but also to support partially the roof.
Continuing, the complaint avers:
The complaint further states:
*515 The following constitute the specific charges of negligence that the complaint makes:
The above constitutes every part of the complaint that makes an attempt to charge the defendants with liability. I have omitted nothing. There is no charge that the defendants deviated in the slightest degree from the contract which they had signed with the owners for the construction of this building. The truth of the matter is that after the complaint alleged the contract it proceeds wholly to ignore it. But after once having averred the contract, the latter governed the construction of the building and prescribed the defendants' duties. If the defendants performed all that the contract exacted of them and did everything for which they were paid, they owed no additional duties. The complaint contains no allegation that the defendants were responsible for the settling of the *516 building. There is nothing that charges that the defendants constructed the building in breach of their contract and thereby caused the building to settle. Yet, unless through breach of their contract the building settled, the defendants cannot be liable for the break of the pipe. Although the second division of the complaint last quoted alleges that the defendants "constructed said wall without providing any supporting or cushioning material between said pipe and wall," there is no allegation that the contract required them to provide "supporting or cushioning material between said pipe and wall." Nor does the complaint aver that they did not construct the wall in the precise place and exact manner that was prescribed in the contract, plans and specifications.
It appears from the complaint, as we have seen, that the pipe which broke had been placed by Pacific Automatic Sprinkler before the defendants began the construction of the wall. Obviously, since there were plans and specifications that governed the construction of the building, Pacific Automatic Sprinkler must have known that the defendants were required to build a wall at that place. Accordingly, a belief is warranted that it was the duty of the sprinkler company to place the pipe deep enough into the ground or protect it with "supporting or cushioning material" so that when the wall was constructed over the pipe the latter would not be harmed. Or the defendants would surely be warranted in a belief that since the sprinkler company placed the pipe at a spot where a wall would be erected, it chose a pipe sufficient in strength to withstand the pressure.
The complaint does not indicate how far below the bottom of the wall the pipe lay. The complaint discloses no information upon that subject. The City *517 of Eugene, that being the municipality in which the building was built, has an ordinance, so this paragraph of the complaint alleges, which requires that "automatic sprinkler systems be installed, constructed and safeguarded in standard, modern and approved manner." That series of conclusions adds nothing to the pleadings. Then the paragraph adds, "That said standards require a clearance or packing between pipe and wall." But the complaint fails to allege the amount of "clearance or packing between pipe and wall" that is required by the ordinance, nor does it allege that the amount that was actually provided was less than the ordinance demanded.
The above is the complaint. The defendants' duties were governed by a contract unless they built a structure dangerous to those who might come into contact with it. The complaint nowhere charges that this building was dangerous. It does not use those words or any equivalents of them. It is true that the complaint makes the general charge of negligence which I quoted, but the defendants are not liable to the lessee unless they (1) breached their contract or (2) built a structure which was dangerous. There is no averment that the defendants breached their contract or constructed a building that was dangerous.
The complaint is evidently based upon a theory that a contractor is an insurer that the structure which he builds will last into the indefinite future, and that if it settles even due to no deviation from the contract he will pay damages. Such is not the law.
Haberly v. Farmers Mutual Fire Relief Association, 135 Or 32, 293 P 590, 294 P 594, states:
*518 The complaint in the case at bar affords no basis whatever for reversing the challenged judgment and granting relief to the plaintiff for the lessee's loss. The newly developed branch of jurisprudence which the majority invokes is of recent origin. Under the facts as above reviewed, the majority extends this new rule so as to render the contractor liable even in the absence of negligence. I do not believe that such is the law. Before embracing this new development in the law, we should await a case presenting more favorable circumstances.
I dissent.
*519 John E. Jaqua, Eugene, for the petition. With him on the brief were Jaqua & Wheatley, Eugene.
Hugh L. Barzee, Portland, filed a brief amicus curiae on behalf of The Associated General Contractors of America, Inc. With him on the brief were Barzee, Leedy & Tassock, Portland.
PETITION DENIED.
SLOAN, J.
In their petition for rehearing defendants overlook a most significant statement in the original opinion. That statement was: "After trial, the court found defendant[s] Bessonette and Graff negligently and proximately caused the damage complained of, but not responsible for the injury to the tenant for lack of privity." It seemingly needs to be emphasized that, for the purpose of this appeal, negligence and causation were admitted. We were presented with the legal problem: Was lack of privity of contract a defense? We held that it was not.
The rule adopted by most of the courts that have more recently considered the question is that a contractor is liable for a breach of the standard of reasonable care and that the lack of privity of contract between the parties is not a defense. Cosgriff Neon Company v. Mattheus, 1962, 371 P2d 819.
The brief of amicus appears to express misgivings that contractors may be held liable without a showing of negligence. This was not the basis of our ruling *520 in this case. Evidence of a lack of due care upon the part of the contractor must, of course, be submitted to bring a case within the ambit of our opinion herein.
The petition for rehearing is denied.
ROSSMAN, J., dissents. | 1553ca21f6af4e09e84f114ff1644b9013f22f7f08aa6fea64e15a34ad196ce0 | 1963-08-02T00:00:00Z |
d9c20aea-7311-46b7-ad2e-ecbfa9749b61 | Hood v. Hatfield | 235 Or. 38, 383 P.2d 1021 | null | oregon | Oregon Supreme Court | Affirmed July 15, 1963.
*39 W.R. Bradshaw, Klamath Falls, argued the cause and filed the brief for appellant.
David Card, Klamath Falls, argued the cause for respondent Andrew Hi Hatfield. On the brief were Smith and Card.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
AFFIRMED.
LUSK, J.
This is a proceeding for determination of heirship and right of distribution of the estate of Ronald Joseph Hatfield, deceased. The petitioner, Alice O. Hood, the natural mother of the deceased, claims to be his sole heir at law. The defendant, Andrew Hi Hatfield, the adoptive father of the deceased, claims to be entitled to an equal distributive share of the estate with the petitioner. The court entered a decree in accordance with Hatfield's contention and the petitioner has appealed.
Ronald Joseph O'Donovan was the illegtimate son *40 of the petitioner. He was born April 9, 1933. The petitioner and Andrew Hi Hatfield were married on September 14, 1936. On September 30, 1940, the circuit court for Klamath county entered a decree declaring Ronald Joseph O'Donovan to be the adopted child of Hatfield and changing the child's name to Ronald Joseph Hatfield. On March 13, 1942, the petitioner and Andrew Hi Hatfield were divorced. The decree granted custody of Ronald Joseph Hatfield to his mother. Ronald Joseph Hatfield died on March 17, 1961, without lineal descendants or widow surviving him and his estate was probated in Klamath county.
Whether the petitioner is the sole heir at law of the deceased is to be determined by an examation of certain provisions of the adoption statutes of this state considered in connection with the statutes of descent and distribution.
The statutes of descent and distribution provide that if an intestate leaves no lineal descendants and no surviving spouse, his property shall descend in equal proportions to his father and mother. ORS 111.020 (2) and 111.030. By ORS 109.050 and 111.210 it is provided, in substance, that an adopted child bears the same relation to his adopting parents in respect to the inheritance of property as if he were their natural child and if he dies under age or intestate leaving property, such property shall be distributed as if he were the natural child of such parents.
Upon the death of Ronald Joseph Hatfield, he left surviving him a father by adoption and his natural mother. Under the statutes to which we have referred the surviving parents are entitled to inherit his property in equal proportions unless there is some other statute which makes these provisions inapplicable to the present case.
*41 The petitioner points to ORS 109.041 as such a statute. It reads:
1. Petitioner's contention is based upon subsection (2) of the foregoing statute and is, as we understand it, that since she would have been upon her son's death prior to his adoption by her former husband her son's sole heir at law, subsection (2) was enacted to secure her right in that regard after the adoption as before. If this construction is correct, it would follow that the adoptive parent would not only not be entitled to inherit from the adopted child, but, in view of the all inclusive language of subsection (2), to wit: "shall leave unchanged the relationship, rights and obligations" between the adopted person and his natural parent, no legal relationship, rights or obligations of *42 any sort between the adoptive parent and the child would be created by the decree of adoption, which would in that case be a mere empty formality. We do not think that this was the legislative intent.
2. By the first subsection of ORS 109.041 it is provided, in substance, that the relationship between an adopted child and his descendants on the one hand, and his adoptive parents and descendants and kindred on the other, is the same as if the adopted child had been born in lawful wedlock to his adoptive parents and had not been born to his natural parents. If the statute had stopped there, the result of the adoption by a stepparent who is the spouse of the natural parent would be, as in the case of other adoptions, to sever all legal relationships whatever between the natural parent and the child. The status of Ronald Joseph Hatfield would have been as though he had not been born to the petitioner. Notwithstanding the relationship of wife and husband between her and the adoptive parent, she would have been barred altogether from inheriting from the child and deprived as well of all right to its custody and control and the child would have been deprived of the right to inherit from his mother and released from all legal obligation to her. To guard against such an incongruity, subsection (2) was enacted. It was evidently the view of the legislature that in these circumstances the relationship of the natural parent to the child should not be deemed terminated, but should be accommodated to the existing situation, and that the legal incidents after the adoption should be the same as they would have been had both parties been natural parents or both adoptive parents of the child. It was obviously contemplated that both parents would share the responsibilities and enjoy the benefits of that relationship, including the *43 right to inherit from their child, as provided by other statutes.
A provision similar to subsection (2) of ORS 109.041 was a part of the original adoption law of this state, enacted in 1864, and remained in effect until 1953, when ORS 109.041 was enacted (Oregon Laws 1953, ch 650). This provision read:
3. The foregoing section was repealed by Oregon Laws 1953, ch 650, and subsection (2) of what is now ORS 109.041 substituted for it. It is apparent that the exception in OCLA § 63-408 was intended to serve the same purpose as subsection (2) of ORS 109.041, that is, to prevent the severing of all relationship between the natural parent and the adopted child as the result of the decree of adoption and to preserve that relationship to the fullest extent appropriate to the new situation. This construction accords with the policy of our law which is to encourage adoptions in all proper cases.
4-6. Apparently as an afterthought for there is nothing in the proceedings below to suggest it the petitioner assigns as error the failure of the trial judge to find that the defendant is estopped to assert his claim of inheritance from the deceased. This contention is based upon the assertion in petitioner's brief that the State Public Welfare Commission in its report to the court regarding the proposed adoption of Ronald Joseph Hatfield stated that "Andrew Hi Hatfield, not being an enrolled member of the Klamath Indian Tribe *44 was not entitled to inherit from the adopted child, but that the mother would inherit from the child regardless of the adoption." Apart from the fact that no estoppel was pleaded and there is no evidence that the defendant had knowledge of the contents of the report, the question is not before us, as the report is not in evidence. The fact of the adoption was admitted in the pleadings and no attack was made in the pleadings on the validity of the decree. When counsel for petitioner asked the court to take judicial notice of the entire file in the adoption proceeding counsel for the defendant objected on the ground that only the decree was relevant. The judge announced that he would take judicial notice of the whole file, but the rule is that a court cannot take judicial notice of the records in a different case than the case before it. Schuyler v. Haggart, 224 Or 530, 533, 356 P2d 955; Scott v. Platt, 171 Or 379, 389, 135 P2d 769, 137 P2d 975; Oden v. Oden, 157 Or 73, 76, 69 P2d 967; 20 Am Jur 105, Evidence § 87. In Schuyler v. Haggart, supra, it was indicated that in the absence of objection it would not be improper for the court to consider in the proceeding before it "information which came to him in an entirely different case between different parties." Even though it should be argued that the defendant's objection was not the proper one, the fact remains that the judge did not consider the report because the claim of estoppel was never brought to his attention. That document is not here and "[i]t is clear that this court cannot take judicial notice of [it]." Oden v. Oden, supra.
We agree with the circuit court that the petitioner and the defendant are entitled to inherit the property of Ronald Joseph Hatfield, deceased, in equal proportions and the decree is, therefore, affirmed. | 5675b385d9323c8eb778cee92e935ac0ea166cea20706f1addc489e3b647ae2f | 1963-07-15T00:00:00Z |
d8dd4fd5-8281-4e2f-bfdd-51728b1a8493 | Korlann v. Belton | 236 Or. 23, 386 P.2d 664 | null | oregon | Oregon Supreme Court | Affirmed July 31, 1963.
Petition for rehearing denied November 13, 1963.
Reuben Lenske, Portland, argued the cause and submitted a brief for claimants-appellants.
*24 Paul D. Hanlon, Special Assistant Attorney General, Portland, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Attorney General, Salem.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
PER CURIAM.
The title to this case is misleading. The problem presented here does not involve either of the officials named. Mr. Korlann's predecessor, as insurance commissioner, brought this original proceeding to have a receiver appointed to administer the Oregon assets, held by the State Treasurer, of a defunct Illinois insurance company. ORS Chapter 751. The claimants, appellants here, filed a claim against the assets. The receiver denied the claim. Objections were filed in the circuit court by the claimants to the denial of the claim. On the day set for hearing the objections, claimants failed to appear either by attorney or otherwise. The court denied the objections because of the failure of claimants to appear.
1, 2. Later claimants filed a motion asking the court to set aside the order denying the objections. The motion was purportedly based on ORS 18.160. The motion was accompanied by an affidavit which sought to explain the failure to appear but did not state any facts supporting the claim. When the latter motion came on for hearing claimants and their attorney again failed to appear. In Johnston v. Braymill Co., 1933, 142 Or 95, 96, 19 P2d 93, 94, it was said:
The record before us provides not one thing that would justify overreaching the trial court's discretion to refuse to reopen the case.
Affirmed.
*26 Reuben Lenske, Portland, for the petition.
PETITION FOR REHEARING DENIED.
PER CURIAM.
3. Claimants' petition for rehearing attacks that part of our opinion herein which can be read to mean that claimants had not filed a pleading or other showing of merit for their claim. The judgment roll filed with the appeal was barren of the claim filed or documents to support the claim.
In order to clarify the matter, we have had the record augmented to show the documents submitted to the receiver and which, we will assume, were available to the trial judge when he denied the claim. Accordingly, the opinion filed is modified to acknowledge that a pleading and some evidence of the merit of the claim, or the lack thereof, was before the trial court when the court denied the claim. Our basis of decision in this case, however, does not require that we more fully examine the question of the extent to which merit must be demonstrated to a trial judge by pleading or other showing before he should set aside a judgment permitted as by ORS 18.160.
We adhere to the original opinion that the trial judge did not abuse his discretion when he failed to excuse the grossly negligent failure of these claimants to appear in the trial court.
Rehearing denied. | e1ca6914facf261bcde1f7840ae9e27e98522b92f45151f71a370356b9ecbf31 | 1963-07-31T00:00:00Z |
00a76c18-0095-41ad-8ede-b255b0868c1e | State Ex Rel. Gladden v. Lonergan | 201 Or. 163, 269 P.2d 491 | null | oregon | Oregon Supreme Court | Demurrer sustained; writ quashed April 14, 1954.
*167 Wolf D. von Otterstedt, Assistant Attorney General, of Salem, argued the cause for plaintiff. With him on the brief was Robert Y. Thornton, Attorney General, of Salem.
T. Morris Dunne, Jr., of Portland, argued the cause for defendants. With him on the brief was Earl F. Bernard, of Portland.
DEMURRER SUSTAINED; WRIT QUASHED.
TOOZE, J.
This is an original proceeding in mandamus, instituted by the state of Oregon, ex rel. Clarence T. Gladden, as warden of the Oregon State Penitentiary, as plaintiff, against Frank J. Lonergan and Lowell Mundorff, as judges of the circuit court of the state of Oregon for Multnomah county, as defendants, to compel said defendants to vacate certain orders heretofore made by them. The matter is now before us upon defendants' general demurrer to the alternative writ of mandamus.
From the allegations of the writ it is made to appear that on February 23, 1954, defendant Lowell Mundorff, as judge of the circuit court for Multnomah county, issued an order in a criminal proceeding then pending in said circuit court, entitled the state of Oregon, plaintiff, against Phillip Wallace, Kenneth J. Nelson, and George LeDuke, defendants, being criminal case No. C-31916 in said court, ordering and requiring the plaintiff to produce the person of one Phillip Wallace, a convict in the lawful custody of plaintiff, in the courtroom of defendant Frank J. Lonergan, judge of said court, Multnomah county courthouse, Portland, Oregon, on February 25, 1954, for the purpose of having said Phillip Wallace *168 testify as a witness at the trial and on behalf of the defendant George LeDuke.
Acting upon the legal advice of the Attorney General of the state of Oregon, which advice was based upon the Attorney General's interpretation of ORS 44.230, the plaintiff advised T. Morris Dunne, Jr., attorney for George LeDuke, that he could not surrender the person of Phillip Wallace for the purposes indicated in the court's order.
On February 25, 1954, plaintiff filed in the circuit court for Multnomah county a motion to vacate the order of Judge Mundorff entered on February 23, but the court refused to vacate it.
On February 25, 1954, the defendant Frank J. Lonergan, as the trial judge in the criminal case then pending against the said LeDuke, issued an order directed to plaintiff and requiring him to appear and show cause why an order should not be issued holding plaintiff in contempt of the circuit court for Multnomah county for his failure to produce the person of Phillip Wallace, a convict in the Oregon State Penitentiary, for the purpose of testifying on behalf of the said LeDuke, as theretofore ordered by the court.
Plaintiff appeared before the defendant Frank J. Lonergan, as judge of the circuit court, in response to the order to show cause and objected to the jurisdiction of the court to try the plaintiff in a contempt proceeding, and to the validity of the original order to produce the witness. He also filed a motion to vacate the order to show cause. His motion was denied.
The sole question for determination in this proceeding is whether the circuit court for Multnomah county had jurisdiction to compel the personal attendance of Phillip Wallace, a convict in the Oregon State Penitentiary, *169 as a witness for and upon the trial of the defendant George LeDuke.
Plaintiff bases his refusal to produce the witness in court upon his interpretation of the provisions of ORS 44.230. This statute is a part of the civil code of this state. It provides:
By ORS 139.110 the foregoing statute is made to apply in criminal actions, examinations, and proceedings.
It is the plaintiff's contention that under the provisions of ORS 44.230, supra, the court is without jurisdiction to compel the attendance of an imprisoned *170 felon as a witness for a defendant in a criminal prosecution, and that the testimony of such a witness, if given at all, must be by deposition.
The origin of ORS 44.230 is to be found in an act adopted January 7, 1854 (effective May 1, 1854) by the territorial legislature. It was part of an act entitled: "An Act to regulate proceedings in actions at law in the Supreme and District Courts." Chapter IV of the Act relates to evidence. It deals with the following subjects: (1) Competency of witnesses; (2) manner of compelling the attendance of witnesses; (3) examination of witnesses; (4) depositions taken in the territory; (5) depositions taken out of the territory; (6) proceedings to perpetuate testimony; and (7) provisions relating to records, documents and other writings. It was a part of the civil code. Sections 15 and 16 of ch IV, title II, Statutes of Oregon, 1854, provided as follows:
The constitution of this state was adopted September 18, 1857, and, by Act of Congress, Oregon was admitted to the Union as a state on February 14, 1859. Section 7 of article XVIII provided that "all laws in force in the territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed." Therefore, *171 the foregoing statutes remained the law of this state until 1862, when the state legislature adopted "An Act to provide a code of civil procedure." Oregon Code of Civil Procedure, 1862.
Section 791, ch IX, title II, p 195, of that Act provided what is now ORS 44.230, supra. That law has not been amended in any way since its original adoption.
In January, 1851, the territorial legislature adopted an act providing for the erection of a penitentiary at Portland, "in the county of Washington", "for the confinement and employment of persons sentenced to imprisonment and hard labor in the penitentiary in this territory." Statutes of Oregon, 1854, pp 509, 510.
It is obvious, therefore, that the reference to a witness confined in a prison in the foregoing statute of 1854 meant a witness confined in the territorial penitentiary.
The Code of Criminal Procedure as adopted by the territorial legislature on December 22, 1853 (chs I to XXXVII, incl., pp 184 to 256, incl., Statutes of Oregon, 1854), remained in full force and effect and as the law of this state until May 1, 1865, when an act "to provide a code of criminal procedure, and to define crimes and their punishment", adopted October 19, 1864, by the state legislature, became effective.
Section 2, ch II, of the 1853 Act provided:
Amendment VI, U.S. Constitution (effective in the territory of Oregon), provides:
It is to be observed that the statute of 1853 goes further than the federal constitutional provision respecting witnesses. The constitution simply gives the accused the right to be confronted with the witnesses against him, whereas, the statute gives him the right "to meet the witnesses face to face", without any qualification; that is to say, under the statute he is entitled to confront all witnesses, whether for or against him.
1, 2. It is to be presumed that the territorial legislature knew the history and background of the constitutional amendment, and what common-law right it was intended to preserve unimpaired; that it was a constitutional declaration of the then well-established hearsay rule; that its essential purpose was to secure to an accused person the right of cross-examination of adverse witnesses, a right firmly established at common law. Compulsory process for witnesses in favor of an accused as provided in the constitution vests a right not enjoyed at common law.
3. Although it may be that one of the principal purposes of the legislative Act of 1853 was to provide by statute for the right of an accused person to cross-examine *173 adverse witnesses, nevertheless, the legislature had the power to and did enlarge that right by making the "face to face" or "confrontation" rule apply to all witnesses. We must attribute to the legislature a definite purpose in adopting language different from that appearing in the federal constitution and, in particular, to its elimination of the very vital and potent words "against him". It is obvious that a legislative act was wholly unnecessary to preserve the constitutional right of an accused to be confronted with the witnesses against him. In that respect, the constitution was self-executing. But it did require a legislative act to extend the constitutional right to encompass all witnesses.
4. There is no question but that the main and essential purpose of confrontation, as provided in the federal constitution and in similar provisions found in state constitutions, is to secure for the accused the opportunity of cross-examination. However, it is recognized that there is a secondary advantage to be gained by the personal appearance of the witness before the court and jury where his testimony is orally given. This advantage is stated by Professor Wigmore as follows: "the judge and the jury are enabled to obtain the elusive and incommunicable evidence of a witness' deportment while testifying, and a certain subjective moral effect is produced upon the witness." 5 Wigmore, Evidence 3d ed 125, § 1395.
In 5 Wigmore, Evidence 3d ed 127, § 1396, the author states:
The secondary advantage gained by the personal appearance of a witness before court and jury is one that applies as well to the state as to an accused. Often, "actions speak louder than words".
It is not unreasonable to suppose that the territorial legislature had this secondary advantage in mind when it adopted the statute of 1853, and intended thereby to secure it to the fullest extent permitted in all criminal prosecutions.
Article 1, § 11, of the Oregon Constitution, as adopted in 1857 (in effect in 1859 and for many years thereafter), provided:
5. It will be observed that as to the matter now under discussion, the wording of the Oregon Constitution is the same as that appearing in the territorial legislative *175 act of 1853. The constitutional right "to meet the witnesses face to face" is not limited to witnesses against the accused. The provision is broad enough to include all witnesses, although basically it is but an enlargement of the common-law rule heretofore mentioned; that is, the rule preserving the right of cross-examination. Under this provision it is clear that a right to direct examination of one's own witnesses is guaranteed, as well as the right of cross-examination of adverse witnesses, both rights being subject to the well-established exceptions to the hearsay rule.
Some state constitutions follow substantially the wording of the federal constitution that the accused has the right "to be confronted with the witnesses against him": Alabama, Arkansas, Connecticut, Georgia, Iowa, Louisiana, Maine, Michigan, Minnesota, Mississippi, New Jersey, New Mexico, Rhode Island, South Carolina, Texas, Utah, West Virginia, and Wyoming. Other state constitutions contain a phrase equivalent to that used in the federal constitution; viz., "to meet the witnesses against him face to face": Arizona, California (by statute), Colorado, Florida, Missouri, Montana, Nebraska, Nevada (by statute), New Hampshire, North Dakota (by statute), Oklahoma, South Dakota, and Washington.
In Delaware, Illinois, Indiana, Kansas, Kentucky, Pennsylvania, Tennessee, and Wisconsin the several constitutional provisions are practically, if not exactly, the same as that appearing in the Oregon Constitution. That also is largely true in Ohio, Vermont, and Virginia.
The Maryland constitution (Art XXI, Decl of R) contains this provision: "in all criminal prosecutions every man hath a right * * * to be confronted with the witnesses against him, * * * to examine the *176 witnesses for and against him on oath." In Massachusetts the constitution (Art 12, Decl of R) provides: "Every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face." In the North Carolina constitution (Art 1, § 11) we find an entirely different concept; one not present in any other constitution so far as we have been able to discover. It is: "In all criminal prosecutions, every man has the right * * * to confront the accusers and witnesses with other testimony."
6. The foregoing review of the several state constitutional provisions reveals that in most states the guaranty is confined to the "witnesses against" the accused. That is the common-law rule, and it is generally held that the provision goes no further in its protections than does the rule at common law; that its adoption carried with it the well-established exceptions to the hearsay rule as known to the common law. 5 Wigmore, Evidence 3d ed 127, § 1397.
7. We have the firm opinion that importance must be attached, and effect given, to the clear wording of our own constitutional provision. The effect we have given it, to-wit: a guaranty that an accused shall have the right to meet his own witnesses face to face, and to examine them orally in the presence of court and jury, as well as the right to meet face to face and cross-examine the witnesses against him, is in keeping with well-recognized rules of constitutional construction. 11 Am Jur 658 to 709, incl., Constitutional Law, ch 5. The provision vests fundamental rights in the accused; it gives no rights to the state. The rights so guaranteed to the accused may be waived by him, but they cannot be denied him. As to the right to have witnesses in his favor attend before court and jury to testify orally *177 on his behalf, accused's further right to compulsory process affords the means for its enforcement. But it is evident that the extended right given an accused goes no further than we have indicated. There is nothing to indicate that the framers of our constitution intended thereby to do away with the well-established exceptions to the confrontation rule. The provision simply places all witnesses in the same category, insofar as the right to confrontation is concerned.
8-11. To emphasize the point we make, we quote briefly some of the rules of construction stated in 11 Am Jur, supra. The following rules are stated:
Also see 11 Am Jur 704, Constitution Law.
To the time Oregon was admitted to the Union as a state, Oregon Territory was governed by the provisions of the federal constitution. This fact is important in considering another rule stated in 11 Am Jur, supra, at page 684:
It is significant, therefore, that in the clause of our constitution now under consideration, the important words "against him" as used in the federal constitution (and in the constitutions of many states) were omitted.
On October 19, 1864, the legislative assembly of the state of Oregon adopted an act "To provide a code of criminal procedure, and to define crimes and their punishment." This Act became effective May 1, 1865, and superseded the territorial law of 1853. General Laws of Oregon (Deady), 1845-1864, pp 441 to 578, incl.
Chapter XXII, § 213, p 478, of that Act provides:
The foregoing provision has never been amended since its original adoption, and is now ORS 136.530.
12. It will be noted that the foregoing statute applies to all witnesses. It is not confined to witnesses "against" the accused. Obviously, the mandatory provision refers to the direct examination, as well as to the cross-examination, of witnesses. At the time the statute was adopted the constitutional provision hereinabove discussed was in full force and effect, as was the territorial Act of 1853. It is manifest that the statute had for its object the enforcement of the constitutional right of an accused person "to meet the witnesses face to face". Considering the history of the subject as hereinbefore discussed, it is clear that this statute constituted a legislative construction or definition of the constitutional provision in question and must be construed fairly to the accomplishment of that end. 22 CJS 715, Criminal Law, § 467(3). To all intents and purposes, this statute was adopted contemporaneously with the adoption of the constitution, and must be read into and considered a part of the constitutional guaranty. State v. Swain, 147 Or 207, 214, 31 P2d 745, 32 P2d 773, 93 ALR 921.
Only one exception is written into the statute. Expressio unius est exclusio alterius. That exception refers to ch XIV of the same criminal code. Chapter XIV (p 465) provides:
The above provisions are now contained in ORS 136.080, 136.090, and 136.100. They were never amended except as to code section references.
13. It is firmly established that depositions and former testimony of witnesses, where the opportunity of cross-examination has been afforded, are, under certain circumstances, admissible in evidence, and such admission is not a violation of the constitutional guaranty. In State v. Walton, 53 Or 557, 563, 99 P 431, 101 P 389, this matter is discussed. In that case Mr. Justice ROBERT S. BEAN wrote:
Also see State v. Von Klein, 71 Or 159, 168, 142 P 549; State v. Meyers, 59 Or 537, 541, 117 P 818.
14. As pointed out by Justice BEAN, the use of depositions and former testimony is conditioned upon the necessity for such use. The rule of admissibility and the conditions thereof are stated by Professor Wigmore in 5 Wigmore, Evidence 3d ed 148, § 1402, as follows:
Specific cases of unavailability of a witness, rendering his deposition or former testimony admissible (where there has been the opportunity of cross-examination), are (1) death of the witness; (2) absence from the jurisdiction; (3) disappearance of the witness, and inability, after diligent search, to find him; (4) illness, infirmity, and age, preventing the attendance of the witness; (5) insanity, or other mental incompetency.
As to a witness who is imprisoned for crime, it is stated in 5 Wigmore, Evidence 3d ed 160, § 1407:
In § 1415, page 191, Professor Wigmore states this further rule:
The holding in State v. Walton, supra, is in keeping with the statutes of this state. Oregon Revised Statutes 41.900 provides in part as follows:
Oregon Revised Statutes 136.510 makes the above statute, a part of the civil code, applicable to criminal actions and proceedings.
These statutes are also in harmony with the rules announced by Professor Wigmore, supra. Admissibility depends upon necessity; that is upon the unavailability of the witness.
In a supplemental memorandum filed in this court subsequent to the oral argument, counsel for plaintiff candidly admits that he was in error in stating that the constitutions in most jurisdictions from which certain statutes were cited by him in his brief have a constitutional provision identical with that of the state *184 of Oregon. He now states that only the constitutions of Kansas and Delaware have a clause identical with that of the state of Oregon. He then states:
We have read the opinion in that Kansas case, but do not find anything therein that gives support to counsel's contention. The court was there dealing with the compulsory process clause of the constitution.
As an historical fact, the Bill of Rights in our constitution was taken almost entirely and verbatim from the constitution of the state of Indiana, adopted in 1851. Carey's History of the Oregon Constitution, p 468. Article 1, § 11, is identical with the wording of Art 1, § 13, of the Indiana Constitution. 1 Burns Ind Stat Ann 10. Upon the questions of the use of former testimony and depositions upon the trial of an accused, and the right of the accused to waive the constitutional provision in his favor, the Indiana Supreme Court has announced the same rules as have been enunciated by this court. Batchelor v. State, 189 Ind 69, 125 NE 773; Levi v. State, 182 Ind 188, 104 NE 765, 105 NE 898, Ann Cas 1917A, 654; Wilson v. State, 175 Ind 458, 93 NE 609. Upon diligent search, we were unable to find a decision by that court which dealt with the specific question now under consideration by us.
Indiana has a statute somewhat similar, in effect, to ORS 136.530. Section 9-1601, 4 Burns Ind Stat Ann, provides:
Sections 9-1623 to 9-1625, incl., provide for the personal attendance of convicted felons as witnesses. It is accomplished by issuance of a subpoena directed to the warden of the penitentiary, based upon an order of the court.
We have made a search for decisions in Delaware, Illinois, Kentucky, Pennsylvania, Tennessee, and Wisconsin, which considered the matter we are now discussing. We have been able to find but one decision on the subject: Petty v. State, 72 Tenn 326.
In that case defendant had moved for a continuance and presented his affidavit of the absence of a material witness, with a recitation of the facts he expected to prove. The court ruled the affidavit to be sufficient, whereupon the attorney general proposed to agree that the affidavit might be read as the deposition of the witness, who was a nonresident of the state. The accused refused to agree to this, but insisted upon a continuance. The court denied the motion to continue, giving defendant permission to amend his affidavit by the addition of any other material fact he expected to prove by the witness and by stating that the affidavit would be read as the deposition of a credible witness. The entire opinion of the court upon the issue presented is as follows:
The unequivocal statement made by the Tennessee court is, of course, in direct conflict with the conclusions we have reached in this case. However, the total absence of any discussion upon which the conclusion was based deprives it of value as a precedent. Furthermore, as stated by that court, "the witness was a nonresident of the State, and not subject to its compulsory process." This not only weakens the conclusion, but also creates a doubt as to what the court might have said had the witness been available and subject to compulsory process. Moreover, we find no statute in Tennessee which even remotely resembles ch XXII, § 213, General Laws of Oregon (Deady), 1845-1864 (ORS 136.530), supra; a statute that itself constitutes a legislative definition and interpretation of the constitutional provision.
The same conclusion, with no argument to support it, as that announced in Petty v. State, supra (Petty v. State being cited as the only authority in support thereof), is again stated in a decision by the Tennessee court, wherein was involved the disbarment of an attorney (held by the court not to be a criminal proceeding): State v. Bomer, 179 Tenn 67, 162 SW2d 515. *187 It is obvious that the statement in this latter case was dictum; no criminal proceeding was involved.
Counsel invites our attention to the case of State v. Belding, 43 Or 95, 99, 71 P 330, from which he quotes the following:
That statement must be considered in the light of the situation then before the court. We were discussing the testimony of witnesses against the defendant. There is not now, nor has there ever been, any question in this state but that our constitutional provision as it may relate to witnesses against an accused is tantamount to the confrontation rule under the federal constitution; but that does not mean that the same constitutional clause does not include witnesses for the accused, nor have we ever so held.
A statement similar to that quoted from State v. Belding, supra, is to be found in an earlier Oregon case: State v. Bowker, 26 Or 309, 313, 38 P 124.
In the Bowker case the question arose concerning the deposition of a witness against the accused. The deposition had been taken as a condition for the allowance of defendant's motion for a continuance. Defendant consented to the taking of the deposition. The deposition was taken in the presence of defendant and his counsel, and on the trial it was offered in evidence by the state, the witness having died in the meantime. We held that the right to confrontation on the trial might be waived by an accused.
*188 Under Art 1, § 11, Oregon Const., the accused not only is guaranteed the right "to meet the witnesses face to face", but also the right of having "compulsory process for obtaining witnesses in his favor".
At common law an accused charged with a felony could not demand as a matter of right compulsory process for his witnesses, but it was the duty of the prosecution to call and examine all persons who had knowledge of material facts connected with the crime, whether favorable or unfavorable to the defendant. But under the federal constitution and the constitutions of most states, the right of compulsory process for witnesses on behalf of defendant is secured. The right is not subject to the discretion of the court; it is usually absolute, at least as to process for necessary and material witnesses, even though the persons needed as witnesses live outside the county of the venue. 14 Am Jur 881, Criminal Law, § 163.
It is well established that the constitutional guaranty does not require process at the expense of the state, but in Oregon provision therefor is made by statute. Oregon Revised Statutes 139.050 provides:
Oregon Revised Statutes 139.060 makes provision for obtaining subpoenas by either the state or the defendant for more than five witnesses upon a showing before the court.
*189 15. The right to compulsory process for necessary and material witnesses on his behalf is a valuable right guaranteed to an accused. It is a right that cannot be denied by legislative act or failure to act. In the interests of justice, it is the duty of courts to enforce the right. When all is said and done, in every criminal proceeding, as well as in the trial of all other cases, the primary aim of the law is to arrive at the truth of the matter in controversy, and no obstacle should be sanctioned that would deny the presence of a competent witness who has knowledge of material facts.
In this state there are statutes which specifically provide how the attendance of witnesses within the state may be compelled; the courts are given statutory authority for compelling such attendance. The order of the court involved in this litigation was based upon the statute. It is unnecessary to review those statutes.
16. However, it is quite well settled (although there are cases to the contrary) that the constitutional right of an accused to have compulsory process to secure the presence of witnesses on his behalf is not infringed where a trial court, acting under or in the absence of a statute, denies defendant's motion for a continuance because of the witnesses' absence, where the prosecution admits that the witnesses, if present, would testify to certain facts. 14 Am Jur 881, Criminal Law, § 163; Hoyt v. People, 140 Ill 588, 30 NE 315. As noted, our statute provides for such procedure. ORS 136.530, 136.080, 136.090, and 136.100, supra.
17. Phillip Wallace, though a convicted felon and confined in the penitentiary, is a competent witness. The materiality of his testimony and the necessity of his personal attendance upon the trial as a witness on behalf of the defendant were made to appear satisfactorily *190 to the trial judge. The order of the trial judge to compel his attendance was issued accordingly. The witness was within the state and was available. His oral testimony upon the trial is demanded by the provisions of ORS 136.530, supra.
Counsel for plaintiff in his brief states "that at common law, and in Oregon until 1862, persons convicted of crime were not competent to testify as witnesses. This impediment was removed by statutory enactment in 1862 in a section now compiled as ORS 44.020." That is not a correct statement of the genesis of that law. On December 22, 1853, the territorial legislature adopted an act providing for the Revised Statutes for the territory of Oregon (effective May 1, 1854). Title I, § 5, ch IV, p 111, provided:
18. As to competency to testify, a convicted felon stands upon the same footing as any other competent witness. Of course, his conviction may be considered by a jury as it might affect his credibility, but it does not affect the competency of his testimony.
There is no constitutional obstacle to the adoption of a statute rendering convicted felons incompetent as witnesses, and some states have enacted such a law. Under such a statute, such convicted felon would be barred from giving testimony in any case, civil or criminal, either orally or by way of deposition. However, it is well established that former testimony of such a person given before the statutory disqualification attached to him, would be admissible upon a subsequent trial between the same parties upon the same cause of action. 5 Wigmore, Evidence 3d ed 165, § 1410.
*191 As heretofore pointed out, plaintiff's contention in this case is based upon his interpretation of the provisions of subd. (3) of ORS 44.230, supra, and, in particular, of the concluding phrase; to-wit: "in all other cases, his examination shall be taken by deposition". It is his position that this phrase has application to the entire statute. In this, we agree.
In construing ORS 44.230, we must keep in mind that until May 1, 1865, it applied solely to civil actions, suits, and proceedings. The use of depositions in civil cases was well established. No constitutional provision stood in the way of such use. No question was or could be raised as to the power of the legislature to regulate when, how, and under what conditions depositions in civil proceedings might be taken and used. Under the statute in question it was largely a discretionary matter with the court whether a person confined in prison (not under sentence for a felony) should be required to attend in person and orally testify, or whether his testimony should be given by deposition. The order provided for took the place of the ancient writ of "habeas corpus ad testificandum". However, under the mandatory provision contained in the last phrase of the statute, if such a witness is confined under "a sentence for a felony", his testimony must be taken by deposition, in lieu of his personal attendance upon the court. The court has no discretion in such circumstances.
As heretofore noted, the statute making ORS 44.230 applicable to criminal proceedings was adopted in 1864, although it was not effective until May 1, 1865. ORS 139.110. At the same legislative session and as a part of the same criminal code then adopted, ORS 136.530, relating to the requirement that "in a criminal action, the testimony of a witness must be given orally, in *192 the presence of the court and jury", was also adopted. We have already discussed the effect of that statute.
19. It is manifest that there is a direct conflict between the provisions of ORS 44.230 and ORS 136.530; a conflict that cannot reasonably be reconciled.
Oregon Revised Statutes 136.530 is, as we have seen, the legislative definition and construction of the constitutional provision relating to the right of the accused "to meet the witnesses face to face". It is fortified by the additional constitutional right of an accused to have compulsory process for witnesses on his behalf. It is a special statute, dealing with a particular subject, and is complete in itself; whereas, ORS 44.230 is a general statute applying to all proceedings in court. Under well-recognized rules of statutory construction, the provisions of ORS 136.530 control. State v. Preston, 103 Or 631, 637, 206 P 304, 306, 23 ALR 414; 82 CJS 834, Statutes, § 367b.
In Graham v. State, 50 Ark 161, 164, 6 SW 721, the Arkansas court, in discussing the compulsory process clause of the constitution, said:
*193 As applied to criminal proceedings, the provisions of ORS 44.230 are in denial of the constitutional rights of an accused to "meet the witnesses face to face", and "to have compulsory process for obtaining witnesses in his favor". It follows, therefore, that, as applied to criminal prosecutions, ORS 44.230 is unconstitutional and void. Graham v. State, supra.
The conclusion we reach is of benefit to the state as well as to the defendant. If we adopted the construction of the statute as insisted upon by plaintiff, then the state itself would be prevented from producing a convicted felon in court to testify against an accused. This would mean that in some cases vital testimony upon which the conviction of a guilty defendant might depend would not be available, because, unless the accused expressly consented thereto, such testimony could not be taken by deposition. The statute itself makes no distinction between proposed witnesses for the state and those for the defendant. Upon oral argument, even plaintiff's counsel admitted that the statute should not be held to apply to state witnesses, yet there is nothing in the statute itself which exempts them.
20. We hold that the circuit court for Multnomah county had jurisdiction to order the plaintiff to produce Phillip Wallace, a prisoner in his custody, in said court to give oral testimony on behalf of the defendant George LeDuke at the trial of said accused, and that it was the duty of plaintiff to obey that order.
The demurrer to the alternative writ of mandamus is sustained, and the writ is quashed.
BRAND, J., concurs in the result.
LUSK, J., specially concurring.
I concur, but solely on the ground that ORS 44.230, *194 as attempted to be applied in this case, is an unconstitutional infringement upon the right of an accused in a criminal prosecution to compulsory process. It is my opinion that the provision of Art I, § 11, of the Constitution, giving the accused "the right to meet the witnesses face to face" has no bearing on the question presented for decision here. Concerning this provision it was said by Mr. Justice ROBERT S. BEAN, speaking for the court in State v. Walton, 53 Or 557, 563, 99 P 431, 101 P 389:
To the same effect see State v. Von Klein, 71 Or 159, 168, 142 P 549; State v. Meyers, 59 Or 537, 541, 117 P 818; State v. Belding, 43 Or 95, 99, 71 P 330.
The comparable language of the Sixth Amendment of the Constitution of the United States is "to be confronted with the witnesses against him". Most of the state constitutions also speak of the witnesses "against" the accused. See 5 Wigmore on Evidence (3d ed) 127 et seq. This court, as the cases I have cited show, has held that all these provisions have the common essential purpose of securing to an accused the right of cross-examination. Of course, no one would suggest that the makers of the Constitution intended to secure to an accused the right to cross-examine his own witnesses. The majority, therefore, calls attention to another and secondary purpose of the constitutional *195 guaranty, namely, the right of the accused to have the jury see the witness and judge his credibility by his demeanor upon the stand and his manner of testifying. This is an advantage "merely desirable" and which may be "dispensed with". 5 Wigmore on Evidence (3d ed) 127, § 1396; it "must occasionally give way to considerations of public policy and the necessities of the case." State v. Walton, supra, p. 564. It is to be observed that the authorities just cited are speaking of the advantage to the accused of having the jury see the witnesses for the prosecution not his own witnesses. The accused has no need of any other constitutional guaranty of the right to have his own witnesses seen and heard by the jury than the guaranty, also found in Art I, § 11, of the right "to have compulsory process for obtaining witnesses in his favor". This means the right to invoke the aid of the law to compel personal attendance at the trial of witnesses within the jurisdiction of the court. Graham v. State, 50 Ark 161, 6 SW 721; Williams v. State, 23 Ala App 297, 124 So 402; Freeland v. State, 34 Ala App 313, 40 So2d 339.
The question, therefore, is whether the legislature has the power to limit this constitutional right to compulsory process by legislation such as that found in ORS 44.230. Since a convicted felon is a competent witness in this state, the conflict between the statute and the Constitution seems to be clear. The attorney general argues, however, that, notwithstanding the conflict, the statute may be supported as a measure in the interest of the public safety. The brief says: "Every time a prisoner from the Oregon state penitentiary is removed under guard there is created a definite threat to the safety of the public because of the possibility of escape." The same type of argument *196 was employed by the Supreme Court of Missouri in sustaining as constitutional, over a strong dissent, a similar statute in Ex parte Marmaduke, 91 Mo 228, 4 SW 91, 60 Am Rep 250 (1886). But in the more recent case of State ex rel. Rudolph v. Ryan, 327 Mo 728, 38 SW2d 717 (1931), the court reconsidered the question, overruled the Marmaduke case, and held that the statute, if applied so as to prevent an accused from subpoenaing a witness from the penitentiary, violated the compulsory process provision of the Missouri Constitution. The court said of its prior decision:
This decision has the approval of Professor Wigmore. See 8 Wigmore on Evidence (3d ed) 111, note. The opinion is well-considered and is a correct interpretation of the constitutional guaranty of compulsory process.
Other courts have reached a contrary conclusion: Tiner v. State, 110 Ark 251, 161 SW 195; Pirkle v. State, 31 Ala App 464, 18 So2d 694. The California cases are cited as support for the attorney general's position; see, Willard v. Superior Court, 82 Cal 456, 22 P 1120; People v. Putman, 129 Cal 258, 61 P 961; People v. Willard, 92 Cal 482, 28 P 585; Ex parte Bagwell, 26 Cal2d 418, 79 P2d 395; but it is not entirely clear that these cases may be properly so considered. In any event, they are distinguishable because of a provision in the compulsory process clause of the Constitution of California, which gives the legislature power to provide for the taking of depositions in criminal cases other than cases of homicide.
The attorney general quotes from 28 RCL, Witnesses, 582 § 173, as follows: "The constitutional right of a defendant to compulsory process for the attendance of witnesses is not violated by a statute which makes his right to a production of a witness confined in prison dependent upon the discretion of the court." This statement, while sound, carries no implication in favor of the validity of a statute which altogether deprives the accused of such right.
Courts have the inherent power to compel the attendance or production of witnesses. State ex rel. *198 Rudolph v. Ryan, supra. But it is one thing to attempt to deprive them of that power, quite a different thing to concede that a court has discretion to determine whether it is justified in ordering a person confined in prison to be brought to the courtroom to testify. At common law the writ of habeas corpus ad testificandum was issued for the production of such witnesses who were beyond the reach of an ordinary subpoena. This was a discretionary writ. Neufield v. United States, 118 F2d 375; State ex rel. Rudolph v. Ryan, supra; 8 Wigmore on Evidence (3d ed) 110; 1 Greenleaf on Evidence (16th ed) 473. Respecting it the Missouri court said in State ex rel. Rudolph v. Ryan, supra:
In Willard v. Superior Court, supra, Chief Justice Beatty, discussing the guaranty of compulsory process in its relation to the problem of the production of witnesses from prison, said:
By ORS 34.310 every other writ of habeas corpus than the writ of habeas corpus ad subjiciendum is abolished. ORS 44.230, to the extent that it authorizes the removal of witnesses confined in prison, was no doubt intended to perform the function of the writ of habeas corpus ad testificandum. But, inasmuch as it prescribes no procedure for securing the removal of a convicted felon from the state penitentiary for the purpose of giving testimony in a criminal action, I should suppose that the court, in the exercise of its inherent power to compel the attendance of witnesses, would be guided by the same considerations which directed the discretion of the common law courts in determining whether or not to issue the writ of habeas corpus ad testificandum.
In the present case it appears that the circuit judge, being satisfied with the showing made in behalf of the application of the accused, has ordered the witness to be produced at the trial. The judge had discretion to make this order and hence the mandamus proceeding should be dismissed.
WARNER, J., concurs in the foregoing opinion. | 39eef13947279bb17c8ab48de83853cd536577c2d36a46ff14a66698d51a7d99 | 1954-04-14T00:00:00Z |
3c224eb5-58c7-4c7a-b605-fabeaf67b6bb | Jarrett v. Wills | 235 Or. 51, 383 P.2d 995 | null | oregon | Oregon Supreme Court | Reversed July 15, 1963.
Louis S. Bonney, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief was Robert Y. Thornton, Attorney General, Salem.
*52 Frank M. Ierulli, Portland, filed a brief for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED.
SLOAN, J.
Plaintiff was assaulted and injured by a man who had been an inmate of the Oregon Fairview Home. Prior to the injuries complained of the inmate had been given a leave of absence, pursuant to ORS 427.150, by Irvin S. Hill, the then Superintendent of Fairview Home. Plaintiff brought this action to recover for her injuries. She alleged that Superintendent Hill had been negligent in granting the leave of absence to the inmate and that he was also negligent in providing a means of supervision of the inmate while on leave. Superintendent Hill died before this action was filed. The named defendant, Russell M. Wills, was the administrator of Dr. Hill's estate. Other defendants were named in the complaint but they are of no significance here.
Defendant, of course, claimed that Dr. Hill was immune from this action. The trial court denied the bar of immunity and this action was tried to a jury. A verdict and judgment were entered in favor of plaintiff. Defendant appeals.
It is contended here that the question of Dr. Hill's immunity was not properly presented by the pleadings and was, therefore, waived. The issue of immunity in this case is of such public importance that we will forego the pleadings question and decide the matter of immunity. The end result in a case of this kind is that a judgment can or cannot be entered against the *53 defendant. The case may be one, such as Salem Mills Co. v. Lord, 1902, 42 Or 82, 69 P 1033, 70 P 832, in which evidence was required in order to decide the immunity of the official being sued. Or it may be a case wherein it can be decided by the allegations of the complaint that a judgment could not be entered on the facts alleged. Federal Land Bank v. Schermerhorn, 1937, 155 Or 533, 64 P2d 1337. In either case, if immunity is shown to exist a judgment against the state or the immune official cannot be entered.
1. It is now settled that in this state only the legislature can waive immunity, James & Yost v. Board of Higher Edu., supra, 1959, 216 Or 598, 340 P2d 577; Vendrell v. School District No. 26C et al, 1961, 226 Or 263, 360 P2d 282. There could be no claim of legislative waiver in this case. The same cases make it equally conclusive that an action against an agency of the state, such as the Fish Commission, is one against the state. It has not been decided whether or not this immunity protects an alleged negligent performance of a duty by an administrative official. To decide that question it is of first concern to look to the duties imposed upon the official.
2. In the instant case the statutory authority of the superintendent and the rules and regulations of the Board of Control, of which we take notice (ORS 41.410), as to the release of an inmate enlighten us as to the full scope of the superintendent's powers and responsibilities in respect to his actions involved in this case. The allegations of the complaint in this case could only have held the superintendent liable for his actions as the superintendent, not as an individual. Those allegations all related to the duties and responsibilities of Dr. Hill that were imposed upon him by law.
*54 The pertinent part of the statute, ORS 427.150 allowing leaves of absence, provides:
The regulations of the Board of Control vest complete discretion in the superintendent. Other sections of the Code relating to the Fairview Home vest other broad discretionary powers in the superintendent. It is also noted that he must accept, in the chronological order of the commitment, all of those committed to the home. He, statutorily, is the state's keeper of those committed to his care.
The cases, both state and federal, that have examined the immunity of a governmental official for alleged negligent performance of duty are too numerous to cite or mention. Reference to Jennings, Tort Liability of Administrative Officers, 1937, 21 Minn L Rev 263; 3 Davis, Administrative Law Treatise, 1958, Chapter 26; 2 Harper & James, The Law of Torts, 1956, § 29.8, page 1632, et seq; Prosser on Torts, (2d ed 1955), page 780 et seq, provides a dissection and an analysis of the many cases and of the rationale thereof. Each of the authors just cited also expose the confusion found in the cases; a confusion and conflict created by the efforts of the courts to decide when a public officer should or should not be held immune from liability for the alleged negligent performance of his official duties.
Generally, the courts have said that performance of a discretionary function is immune while a ministerial act is not. It is easy to discover that the boundaries thus fixed are not immutable. Even a cursory *55 examination of the several kinds of administrative action will reveal that so called discretionary and ministerial duties frequently overlap and more frequently are indistinguishable. In defense of the courts' efforts to bring some stability into the problems created by the cases it can be said that this is little different than other unnumbered areas of the law wherein the courts, and the scholars, grope for words or phrases that will set apart and define one kind or degree of human conduct from another. It might also be said that courts are not alone to blame for the inability of words to always convey a precise meaning or limit the scope of the conduct the word is intended to imply. In this instance, however, we need not assume the burden of deciding where, on a descending scale of authority and conduct, the act of an official lacks immunity. The duties and functions of the superintendent are such as to place that official near to the top of the scale of immunity, well above any disputed area of conduct.
From Barr v. Matteo, 1959, 360 US 564, 573, 574, 79 S Ct 1335, 3 L Ed2d 1434, we learn:
The test applied by the court for immunity from libel is the same as the immunity we are concerned with here.
The state has assumed the burden of caring for those persons eligible for commitment to Fairview *56 Home. The Home "* * * shall be quasi-educational in its nature. * * * The superintendent shall be a well-educated physician." ORS 427.010. Formerly the Board of Control, now the "Mental Health Division" thereof, exercises certain control and supervision of the Home, ORS 430.020. However, as before mentioned, the statutes and the regulations of the Board impose upon the superintendent almost exclusive control of the care, treatment, training and discharge of the patients. His responsibilities require him to make constant discretionary judgment. Like the Board of Parole and Probation or the Superintendent of the State Hospital, he is required, as the State's keeper of these unfortunates and in behalf of the state, to judge and govern human beings and human conduct; a judgment devoid of any of the standard of weights and measures available for the decisions made by other public officials. There would be few of his decisions that would not be discretionary. And it is as certain as human existence that he will make mistakes. Because of this it is unthinkable that he should be, individually, or that the state because of him, should be held liable for a mistake not dictated by an unlawful purpose. And this would be so whether his conduct is measured by a rule based on "discretionary conduct" or upon public policy. Either rationale, as found in the authorities before cited, would place immunity upon the judgments of the official now charged.
In his characteristic language Judge L. Hand, expresses the thought we have adopted:
Except in jurisdictions wherein immunity no longer exists, we have found no case, nor any reference to one, which would deny immunity to an official having the responsibility existing in this case. A recent case most nearly in point is Somers v. Osterheld, 1956, 335 Mass 24, 138 NE2d 370. In Somers the superintendent of an institution similar to Fairview was charged with negligently removing a small boy patient from a place having a fenced restraint to a place where no restraint existed. The court noted that the defendant-superintendent's action was "* * * in the exercise of a discretion conferred upon him by statute * * *," and summarily denied any liability. Our own case of Schrader v. Veatch et al, 1959, 216 Or 105, 108, 337 P2d 814, is actually controlling in the instant case when it was said: "It would be an anomaly to permit a personal judgment to be had and enforced solely against an officer of the state for carrying out the duties imposed upon him by statute." And see cases collated in § 26.01, 3 Davis, Administrative Law Treatise, supra, at page 512. Professor Davis concludes that: "Recent state decisions imposing liability *58 [for exercise of discretionary power] are exceptional and usually rest on special reasons."
3. It is our view, therefore, that the trial court could not enter a judgment on the facts alleged in the complaint and the action should have been dismissed.
Reversed. | 4c369587266c0435246d7706c5e269180f6fff83c7d2a6574747d1900523e0ac | 1963-07-15T00:00:00Z |
4c27691c-ccf2-438d-98c6-0acbb8bd51d9 | Sproul v. State Tax Comm. | 234 Or. 579, 383 P.2d 754 | null | oregon | Oregon Supreme Court | Reversed June 26, 1963.
*580 Thomas C. Stacer and Gerald F. Bartz, Assistant Attorneys General, Salem, argued the cause for appellants. With them on the briefs were Robert Y. Thornton, Attorney General, Salem, and Clarence R. Kruger, Assistant Attorney General, Salem.
J.R. Campbell, John Day, and Roy Kilpatrick, Canyon City, argued the cause for respondents. With *581 them on the briefs were Yokom and Campbell, John Day.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, O'CONNELL, GOODWIN, LUSK and DENECKE, Justices.
REVERSED.
DENECKE, J.
The constitutionality of a part of the legislative design for forest fire protection in eastern Oregon is the issue in this case. The statute attacked levies an assessment of one cent per acre on those lands in eastern Oregon which the legislature found present a special fire hazard. The fund raised by this levy is used for the payment of fire protection and suppression costs.
The trial court decided that the one-cent-per-acre levy was an exercise of the state's taxing power. It held that it was a property tax and it was invalid because it was not assessed upon an ad valorem basis.
1. The statute states that the one-cent-per-acre levy is "a tax upon the owners of Class C forest lands for the privilege of using such lands." ORS 477.930. The label the legislature places on a levy is an important factor to be considered in determining into what category to place the levy. However, such a label is not conclusive of the nature of the levy. Terry v. City of Portland, 204 Or 478, 499, 269 P2d 544, appeal dismissed 348 US 979, 75 S Ct 571, 99 L ed 762.
We hold that the levy is not an exercise of the state's taxing power. We conclude that such levy is an exercise of the state's police power.
2. The Oregon constitutional provision requiring uniformity of taxation does not restrict the state in its exercise of the police power, as distinguished from the *582 taxing power. Starker v. Scott, 183 Or 10, 15, 190 P2d 532. This proposition is universally accepted and is grounded on the reasoning that the primary purpose of the money exaction is not to raise revenue, but to directly promote the public welfare. 4 Cooley, Taxation (4th ed), § 1784.
In order to arrive at this conclusion the fire protection and suppression program evolved by the Oregon Legislature must be examined in detail. This is not an easy task. Forest fire protection laws originated in Oregon in 1913. Oregon Laws 1913, ch 247, p 483. They have grown like Topsy and apparently have never been revised.
Since 1913 the state has directed every landowner with timber to protect his land against the start and spread of fire. Oregon Laws 1913, ch 247, p 483. (This is apart from the landowner's liability for the tortious start or spread of fire.) Fire protection includes fire suppression. Fire protection in Oregon is carried out by: (1) the landowner, individually, or in association with other owners, (2) the state of Oregon, and (3) the United States government, the largest timber owner in Oregon. These three are authorized to enter into cooperative agreements with each other to provide and maintain a coordinated fire protection and suppression system. ORS 477.028, 477.073; Act of June 7, 1924, ch 348, 43 Stat 653, 16 USCA §§ 564, 565 (1960 ed).
The individual timber owner is deemed to have complied with the statute requiring him to protect his land against the start or spread of fire if he files with the State Forester an adequate protection plan and has the facilities to carry it out; or if he belongs to an association having such a plan and facilities. If the individual owner does neither, the state provides the *583 fire protection. ORS 477.024. The state does this with its own personnel and funds or through private associations or the federal government by agreements with such groups.
In 1953 the legislature substantially changed the method of paying fire protection costs. Oregon Laws 1953, ch 372, p 641. For the previous 40 years the landowner had been directed to provide fire protection; if he did not, the state did and charged the expense to the landowner. §§ 107-241, 107-243, OCLA. In 1953 it was provided that the forest lands of the state would be divided into districts, termed, "official fire districts," or "fire protection districts." ORS 477.001, 477.004, 321.005(6); Oregon Laws 1953, ch 372, § 2(3). Each district prepares an annual fire protection budget. The funds necessary to finance this budget are raised by prorating the proposed expenditures upon the acreage within the fire protection district.[1] ORS 477.030. The statute provides that the prorated cost for grazing land shall not exceed five cents per acre per annum unless the actual cost for protection and suppression of the grazing land exceeds this amount. The pro rata cost on timber land in the district has no limitation. These per-acre assessments to finance the budget become liens on the property assessed and the amount thereof is collected by the county along with the collection of the ad valorem taxes. ORS 477.033. If the Forester's costs for the fire protection and suppression exceed the amount *584 budgeted, the excess is added to the next year's budget of the fire protection district. ORS 477.035.
Members of a responsible private fire protection agency are not required to contribute to meet the fire protection budget of the district wherein their land lies. ORS 477.024(2), 477.037. Federal lands are not assessed unless, under a cooperative agreement between the state and the federal government, the federal land is under the fire protection of the state rather than the federal government and the agreement provides for the assessment. ORS 477.053.
Any landowner who is affected by this legislation has a right to a hearing before the State Forester "on any subject pertaining to the activities of the forester or board affecting the land," including the cost charged for fire protection. ORS 477.039.
This legislation is not that which is under attack in this case. However, an understanding of the operation of such legislation is necessary to understand the operation of the legislation that is under attack.
The statute which the plaintiff claims is contrary to the Oregon Constitution was enacted in 1959. Oregon Laws 1959, ch 320, p 468. The known legislative history of this act is ambiguous. However, with this history, added to the words of the statute itself, the purpose of the legislation can be determined with some certainty. In the interval between 1953 and 1959 certain areas of eastern Oregon had incurred very substantial fire fighting expenses; other areas had very little expense. The 1959 legislation was an attempt to partially spread the future costs of fire protection and suppression throughout all of the fire protection districts of eastern Oregon. Before the 1959 legislation, all the fire protection and suppression costs in one eastern Oregon district had to be wholly *585 borne by that district. ORS 477.950(2), a part of the 1959 legislation, states: "The insurance principle is recognized in providing funds for emergency forest fire control on Class C * * * forest lands." Class C forest lands are eastern Oregon lands with a special fire hazard. A more precise definition will be set forth later.
To spread this risk the statute levied an annual per-acre assessment on all Class C forest lands in the amount of one cent per ace. ORS 477.930. The moneys were to be collected in the same manner as the amounts collected to meet the fire protection budgets of the various districts. The moneys so collected are deposited in the "East Side Emergency Fire Cost Fund" account. ORS 477.970.
ORS 477.970(3) provides:
The size of the fund is never to exceed $250,000.[2] When and if the fund reaches $250,000, the levy of one cent per acre is discontinued for the next year. ORS 477.950.
In the 1953 revision of the fire protection system, *586 procedures for equalizing fire suppression costs in western Oregon were adopted. Oregon Laws 1953, ch 375; ORS 321.015, 321.165. A "forest harvest tax" was levied upon all forest products harvested in western Oregon. The rate was set at four cents per thousand feet. The proceeds of this levy were deposited in the Forest Emergency Fire Cost Account. This account was to be used to equalize fire suppression costs in western Oregon. ORS 477.135. If the account reached $750,000, the levy was suspended. ORS 321.035.
Previous statutes providing for the raising of funds for fire protection have been upheld by this court. The first case so holding was First State Bank of Sutherlin v. Kendall Lumber Company, 107 Or 1, 213 P 142 (1923). It was contended in that case that the original fire protection act of 1913 was unconstitutional. That Act, supra, provided that if the landowner did not provide fire protection, the state would provide it at a cost not to exceed five cents per acre. The landowner contended that the legislation providing for the per-acre assessment was contrary to the Oregon Constitution in that it failed to provide for "a uniform and equal rate of taxation" and deprived the landowner of his property without due process of law. (The landowner did not specify whether it was the federal or state Due Process Clause which it claimed was violated.)
A 1935 amendment to the original 1913 act was passed upon in Starker v. Scott, supra (183 Or 10). The 1935 amendment provided that in addition to the actual cost of fire protection the landowner was also required to pay a 10 per cent penalty if he failed to provide his own protection; this penalty was also to be a lien upon his land. Oregon Laws 1935, ch 356, p 564. The sums collected as a penalty were also to be expended for fire protection. The landowner contended that the penalty "constitutes an exercise of the power of taxation and as such is unconstitutional because it is not levied according to the rule of uniformity." (at 14) The court stated the issue in this manner:
The court interpreted the statute to require that the proceeds from the penalty were to be used to reimburse the Forester for general costs such as investigating the need for fire protection, cost of collecting the assessments, etc.
The court, quoting from 1 Cooley, Taxation, § 27, made a statement of the accepted principle that an exaction of money for general revenue purposes is an exercise of the power of taxation, while an exaction of *588 money for regulation is an exercise of the police power. Starker v. Scott, supra (183 Or at 15-16).
The court held:
3. The purpose of the statute here is concerned with fire protection and suppression; therefore, in that respect it is an exercise of police power. The one-cent-per-acre levy is not for the purpose of raising general revenue, but solely for fire protection and suppression; therefore, in that respect the statute is an exercise of the police power.
There is a difference, however, in the operation of the earlier fire protection and suppression statutes and the one here under consideration. The earlier statutes were written in terms of "regulation." These earlier laws directed the landowner to provide fire protection; if he did not, the state provided the protection and charged the cost thereof to the landowner. The basic fire protection laws now in effect do likewise. They command the landowner to adequately protect against fire. If the landowner does, he does not have to pay the assessment to raise the fire protection budget of his district. Only if the landowner does not provide adequate protection is he liable for the assessment to meet the fire protection budget of his district. Perhaps the one-cent-per-acre levy could be sustained as being a minor and incidental part of *589 this overall plan of fire protection and suppression couched in the terms of "regulation." However, it is believed preferable to meet the problem more directly.
The statute authorizing the one-cent-per-acre levy does not "regulate"; it does not direct the individual to do anything. It simply levies an assessment upon every Class C forest landowner. The purpose of the statute is to collect money to partially reduce the amount certain landowners will have to pay for fire protection and suppression.
Does the fact that this part of the fire protection and suppression program does not "regulate" mean that it is not an exercise of police power, but rather an exercise of the taxing power? We do not believe so.
The statute is interpreted to be legally similar to a hypothetical statute in which the state directly performs all the fire protection and suppression and assesses the cost thereof to all forest landowners, prorating the assessment on an acreage basis; under the hypothetical statute, no direction or "regulation" is imposed on the landowner. Attempting to put this in sharper focus, the present statute is regarded as legally similar to a hypothetical city ordinance which finds that a certain geographical area of the city requires more police protection than other areas and the cost of this additional police protection is charged to this particular geographical area and assessed on a pro rata per-unit-of-area basis.
The question is, when the government acts to promote the public welfare by direct action rather than by regulation, is such direct action an exercise of police power and can the cost of such action be exacted from the particular persons or property who necessitate the government action and on a basis other than the value of the property involved?
*590 Police power is usually exercised by regulation. Persons are commanded to do something or prohibited from doing something. However, there are numerous examples of states exercising police power by methods other than regulation. Professor Freund in 1904, in his important treatise on the police power, wrote:
Recently, this court upheld the action of a subdivision of the state exercising its police power in a nonregulatory manner. Baer v. City of Bend, 206 Or 221, 292 P2d 134. In that case the court upheld the right of the city to introduce fluoride into the city water supply. The court stated: "The legislation in question was adopted by the city in the exercise of its police power * * *." (at 224) The municipality did not require any person to do anything or prohibit them from doing anything.
Rogers v. City of Salem, 61 Or 321, 332, 122 P 308, *591 was a suit to enjoin the collection of an assessment for a sewer. The court said:
The above statement was made partially upon the authority of Paulsen v. City of Portland, 16 Or 450, 19 P 450, affm'd 149 US 30, 13 S Ct 750, 37 L ed 637.
Mr. Justice Brewer, speaking for the court, stated in that case:
In the construction of a sewer the only command the government makes to its citizens is to pay for the sewer.
In 4 Cooley, Taxation (4th ed), the building of sidewalks, sewers, levies and drainage facilities are all classified as an exercise by the state, or one of its subdivisions, of the police power. Assessments made against the property owners for the payment of the cost of these improvements are deemed to be a part of the exercise of the police power and not of the power of taxation. §§ 1788-1791.
*592 The inference from some of the above-quoted authorities is that there is a close link between moneys exacted to pay for the state's exercising its police power and moneys exacted by what are commonly called "special assessments" to pay for public improvements. There is such a link.
Rogers v. City of Salem, supra (61 Or 321), supports this proposition.
Special assessments usually involve assessments for sewers, streets and other public improvements. Such assessments are not limited by the constitutional limitations on the taxing power. St. Benedict's Abbey v. Marion County, 50 Or 411, 93 P 231, appeal dismissed 218 US 688, 31 S Ct 219, 54 L ed 1210.
This discussion does not necessarily lead to the conclusion that the cent-per-acre assessment in this case should be classified as a "special assessment." The law of "special assessments," however, is analogous. It is analogous by illustrating that when certain property necessitates or makes it desirable for the state to exercise its police power, that property can be required to pay for the cost of that exercise of the police power and the constitutional limitations upon the power of taxation are not applicable. If all the people of the state, or all the property in it, are required to pay the costs of the state's exercise of the police power, the constitutional limitations on taxation must be satisfied. When the cost is to be paid only by *593 the persons or property causing the exercise of the police power, such limitations are irrelevant.
4. If the state is required to exercise its police power because certain properties present a special threat to the safety of the state, those lands can be charged for the costs of this exercise of the police power. These lands present a special threat to the state's resources. By statutory definition, "forest lands" are those containing "enough inflammable forest growth or debris to constitute a fire hazard." ORS 526.005(4). The legislature has singled out the owners of such lands and directed them to provide adequate fire protection. ORS 477.024. The legislature has also required that the owners of such lands pay for the fire protection provided by the state for these same lands.
This court has not heretofore held that the state can require the property owners who have caused the state to exercise its police power to pay for the exercise of such police power except in "special assessment" cases. Other jurisdictions, however, have so held.
Foster's, Inc. v. Boise City, 63 Idaho 201, 118 P2d 721, upheld a municipality's right to install parking meters. This court has also so held. Hickey v. Riley, 177 Or 321, 162 P2d 371. The Idaho court said:
A South Carolina law recited: "`Whereas the lands of Sullivan's Island have been set apart for such *594 citizens of this state as may resort thereto for the purposes of health, and to this end have been placed under the regulation of the town council of Moultrieville; and whereas, in order to secure the purposes for which the said lands have been so set apart, it is essential that the said town council should be empowered to secure such means as may be necessary to carry out the ends proposed: (1) * * * That the town council of Moultrieville be, and they are hereby authorized by ordinance, to assess each lot owner on said island for each and every lot possessed by him or her such sum or sums of money, not exceeding ten dollars for each lot, as the said town council may deem necessary, for the purposes of keeping in proper order the streets, ways, beaches, and commons of the island and the health of the same.'" Thomas v. Town Council, infra, at 648.
In Thomas v. Town Council, 52 SC 181, 29 SE 647, the court upheld an $8 per acre assessment under the above statute. The landowner relied upon the state constitutional provision that: "`All property subject to taxation shall be taxed in proportion to its value.'" (at 648) The court said:
There was an Oklahoma law which provided for an assessment of one per cent of a bank's deposits. The proceeds of this assessment were used to create a depositors' guaranty fund. The validity of this statute was upheld in Noble State Bank v. Haskell, 219 US 104, 31 S Ct 186, 55 L ed 112. Mr. Justice Holmes, speaking for the court, stated:
A Tennessee law required a public utility to pay fees, proportioned upon its gross receipts, into a fund to be used "for the inspection, control, and supervision of the business, service, and rates" of public utilities. The utility contended that this exaction of fees was a tax. In Memphis Natural Gas Co. v. McCanless, 183 Tenn 635, 194 SW2d 476, the court held to the contrary, stating:
These last two cases should be considered with the knowledge that they involve businesses which can *596 be and are licensed. The legislature can, as a condition to their licensing, require that they pay the costs of the state's exercising its police power. That basis, however, was not the basis stated by the court in upholding the assessments; rather, the court upheld the assessments on the basis that when persons necessitate the exercise of police power, the cost of exercising such power can be assessed to the persons necessitating its exercise.
5. Persons or property necessitating the state's exercising its police power cannot be made to pay for the cost of such exercise on an unfair or discriminatory basis. Assessments or other exactions to pay for the exercise of police power are subject to constitutional limitation just as is the exercise of police power by regulation.
Freund, supra, at 635, stated the limitations as follows:
This court has expressed the constitutional restriction as requiring that there must be a "substantial *597 relation to the legitimate objects sought to be gained, i.e., the furtherance of the public health, morals, safety or welfare." Shaffner v. City of Salem, 201 Or 45, 51, 268 P2d 599, and cases collected therein.
When police power is exercised by the construction of a public improvement, such as a sewer, this "connection of causation or responsibility between the person selected * * * and the danger to the public welfare or the public burden which is sought to be avoided or relieved" is the concept of "benefit." (Freund, supra, at 635) In re East Third Street Franklin (Boyle v. City of Bend), 234 Or 91, 380 P2d 625. In the example of a sewer, to be benefited by an improvement, means that the property owner can make use of the sewer. Duniway v. Cellars-Murton Co., 92 Or 113, 170 P 298, 179 P 561.
The analogy of "special assessments" is of assistance in determining how close must be the connection between the burden and the object of the police power.
6. The line of causation between benefit and public improvement need not be too close and distinct. "`* * * to justify an assessment of benefits to particular lands it is not essential that the benefits be direct or immediate.' * * *." Northern Pacific Terminal Co. v. City of Portland, 80 F2d 738, 742 (9th Cir 1935).
The ratio between the percentage of benefit conferred and the percentage of cost paid need not be computed precisely.
The connection between the one-cent levy and the exercise of the police power is clear. The property assessed presents a special fire hazard and the levy is to create a fund to partially reimburse those who are required to pay emergency fire fighting costs. It is impossible to determine in advance which Class C forest landowners or fire protection districts will be required to pay emergency costs to suppress fires. The fire fighting costs attributable to land bearing sagebrush and jack pine might be many times greater than those attributable to land containing valuable stands of merchantable timber.[4] The fire fighting costs in the Northeast Oregon Fire Protection District might be excessive one year and the next this might be true in the Klamath Fire District.
7. The plaintiff property owners in Grant county may be, or may never be, recipients of the fund built up by the one-cent levy. Because of the creation of the fund, however, they are granted the same advantage that immediately accrues to one who has purchased insurance. If the fire fighting costs which plaintiffs, directly or indirectly, are called upon to bear are excessive, this fund is available to equalize their costs.[5]*599 Only those property owners who are required to pay the one-cent levy are eligible to have their fire suppression burden equalized by this fund.
There is a rational connection between the burden imposed, the one-cent levy, and "the danger to the *600 public welfare or the public burden which is sought to be avoided or relieved." (Freund, supra, at 635). The method the legislature has selected to impose this burden is not patently disproportionate among the property owners assessed.
8, 9. If the state in the exercise of its police power imposes the burden of its exercise on some persons or property and withholds it from others such exercise of the police power is subject to further constitutional limitation. "* * * the classification must be based upon a real and substantial difference between the classes. Moreover, the difference between the classes must be relevant to the purpose which the act undertakes to achieve." Namba et al v. McCourt and Neuner, 185 Or 579, 612, 204 P2d 569. The one-cent-per-acre levy is only upon eastern Oregon lands. As previously stated, fire suppression costs in western Oregon are equalized from a fund financed by a forest products harvest tax on western Oregon timber. The legislature made a statement of policy that because of a difference in tree species and in logging practices between eastern and western Oregon, different fire protection problems exist in the two areas and, therefore, different legislation is necessary to meet these problems. ORS 321.011.[6] The legislature's declaration that there *601 is a real difference in the fire protection problems of the two areas is certainly not clearly unreasonable and, therefore, the classification is not invalid. Kroner v. City of Portland et al, 116 Or 141, 240 P 536.
In their brief plaintiffs argue that it is impossible to determine from the statute what lands are subject to the levy. At oral argument plaintiffs were understood to contend that land containing nothing but sagebrush could be subject to this levy. As we understand these arguments, they are in effect a charge of arbitrary classification.
This levy is imposed upon all Class C forest lands. "Forest land" is defined as "any forested land, woodland, brushland, cutover land or clearing, which, during any time of the year, contains enough inflammable forest growth or debris to constitute a fire hazard." ORS 477.001(6).
Class C forest lands are all forest lands in eastern Oregon. ORS 477.910(2). The statute could have stated the one-cent levy was upon all forest land, as that term is defined in the statute, in eastern Oregon.
The statute defining Class C forest lands further states that such lands are "lands * * * classified under the provisions of ORS 526.330 or 526.340." This classification procedure originated in Oregon Laws 1937, ch 381. It provides that county classification committee shall classify all forest lands in the county into three classes: Class 1, land primarily suited for timber production; Class 2, primarily suited for joint timber production and grazing; and Class 3, primarily suited for agricultural use. The procedure provides for notice of hearing and appeal for the landowner. ORS 526.330. The classification was for the purpose of enabling the forester to administer the forest and *602 fire laws "as best to promote the primary use for which that land is classified." ORS 526.350.
10. The legislature made a declaration of policy that Class C forest land "involves conditions and activities making such lands more susceptible to fire; * * *." This declaration was not unreasonable.
We construe the statutes to impose the levy only upon those lands defined as "forest land," i.e., brushland, cutover land, etc., "contain[ing] enough inflammable forest growth or debris to constitute a fire hazard." ORS 477.001(6). Under this interpretation the singling-out of Class C forest lands to bear the one-cent levy is not an unreasonable classification.
In summation, the state can act to promote the public health, welfare and safety by regulation, i.e., directing the conduct of its citizens and others. It can also promote public welfare by acting directly rather than by directing its citizens to act. When the state itself acts directly to promote public welfare it can charge the cost of its action to all the people and property of the state. If this course is followed, the cost is collected by the state in its exercise of the power of taxation and the constitutional limitations upon the exercise of this power must be observed. The crux of this opinion is that the state has the alternative of assessing the costs of the exercise of its police power upon those persons or properties necessitating or causing the state to exercise its power and that the collection of its costs by this method is not subject to the constitutional limitations applying to the exercise of the power of taxation. There appears to be no valid reason for interpreting either the Oregon or the federal constitution to prevent the legislature from using either alternative in raising the funds necessary *603 for the state to exercise its police power for the public welfare.
The judgment is reversed.
SLOAN, J., specially concurring.
I concur in the result of the majority and have no vigorous quarrel with the means of reaching that result. This case was heard in Pendleton in October of 1962. In the meantime the parties were asked for additional briefs in answer to specific questions asked by this court. It is apparent, therefore, that decision in this case has been difficult to reach. Justice Denecke has performed a yeoman's service by his extensive work which has provided an answer to the case satisfactory to the majority.
The obstacle course that has delayed decision has been the effort to test the tax by a particular label. That is: Is the tax a property tax, a police power tax, a privilege tax or what? This attempt to identify the tax by a label can be attributed to the influence of Cooley on Taxation; the last edition of which was published in 1924 and the earlier work by Cooley himself is almost a century old. It appears to me that this kind of testing is no longer feasible. The ever more diligent search by local and state governments to find new forms of taxation, will shortly, if not now, compel this court to examine the legislative power as limited by the Federal and State Constitutions, particularly the latter. It is my view that we should now meet the problem head on and not lend further complexity to the ultimate decision by straining the limits of the police power. In this instance, the sole purpose of the tax was to raise revenue. The regulatory features of the Forestry Code are distinct and separate and bear little relationship to the taxing *604 acts. The tax should be treated as a means of raising revenue.
This opinion may be of assistance to no one. It is hoped, however, that as these problems multiply some of the discussion that follows may provide some guide-posts.
First concern should be given to the declaration of legislative policy found in the questioned statutes. This policy is particularly important for classification of the lands and of the methods of taxation in respect to forest lands.
This declaration of policy and the basis for classification are found in ORS 477.005:
and ORS 321.011:
Other sections directly relating to the taxing sections of the Act are referred to in the majority opinion. As the majority opinion emphasizes, these sections of the Code are confusing. However, it seems clear that the whole of the Act gives an intrinsic statutory meaning to the words "forest lands," a meaning unrelated to any other literal connotation of the words. This becomes important when the legislative power to set apart and specially tax such lands is considered.
Next in order are the Oregon constitutional limitations on the legislative taxing power. In 1917 the people of Oregon amended the constitutional limitations. These amendments substantially increased that power. The pertinent sections before and after amendment read:
That section was amended in 1917 so as to read:
Article 9, § 1 before the 1917 amendment read:
After the 1917 amendment the section now provides:
The permissive limits of taxation wrought by these amendments were comprehensively analyzed in Standard Lbr. Co. v. Pierce et al, 1924, 112 Or 314, 228 P 812. The full significance of the opinion can only be gained by reference to it. Extracts from the opinion are pertinent. These statements were made as to the purpose and intent of the amendments, at pages 333 and 335:
The Standard Lbr. Co. case has other significance. It held that the Oregon Constitutional restrictions in respect to equality and uniformity, after the 1917 amendments, were the same as those imposed on the states by the equal protection clause of § 1 of the 14th Amendment to the Federal Constitution. 112 Or at 333; see also In Re Estate of Heck, 1926, 120 Or 80, 86, 250 P 735, 736. The importance of that determination can be realized when we examine the decisions of the Supreme Court of the United States in respect *608 to the 14th Amendment as those decisions relate to problems presented by this case.
From that examination we learn that the limitations of the 14th Amendment upon the states' power to classify and then to tax, prevents only that which is manifestly arbitrary and capricious. In decisions particularly pertinent to this case, the court has held that the "* * * XIVth Amendment was not intended to compel the states to adopt an iron rule of equal taxation." Bell's Gap Railroad Company v. Pennsylvania, 1890, 134 US 232, 237, 10 S Ct 533, 535, 33 L Ed 892, 895.
In Allied Stores of Ohio v. Bowers, 1959, 358 US 522, 79 S Ct 437, 3 L Ed2d 480, many of the earlier decisions are cited and the powers of the state legislatures reiterated and emphasized. From that particular decision we learn that the State "* * * is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value." 358 US at 527. The Allied Stores opinion gives equal importance to the validity of a tax imposed *609 in furtherance of a legitimate state policy if any "state of fact reasonably can be conceived that would sustain it." 358 US at 528.
However helpful these, and other, decisions of the Supreme Court may be in support of the broad powers of the state to tax we need not look beyond the decisions of this court to ascertain the power of the legislature to classify the subject matters of taxation. This power is nowhere better expressed than in Standard Lbr. Co., 112 Or at 328:
And see the valuable contribution to the subject of classification found in Etter, Municipal Tax Differentials, 1957, 37 Ore L Rev 1, beginning at page 39. One of the bases for valid classification expressed by Mr. Etter has particular application to this case:
Decision in this case is also aided by reference to another authority that is of more than usual persuasion in attempting to define the limits of the taxing power of the Oregon Assembly. That is the work of Newhouse, Constitutional Uniformity & Equality in State Taxation, 1959. The latter is a study of the provisions of each of the state constitutions in respect to the uniformity problems in taxation and of the decisions of each of the state courts interpreting these constitutional requirements. Professor Newhouse not only considers the nature of the constitutional requirements as interpreted by court decision in each state but also makes an exhaustive comparative analysis of the differing powers to tax thereby found to repose in the several state legislatures. There is also an extensive study of the judicial decisions as they have tested the acts of the states against the 14th Amendment. In respect to the taxing power of the legislature granted by the Oregon Constitution, as interpreted by this court, in comparison to the power granted the legislature of other states, Professor Newhouse has reached these conclusions:
It is realized that these conclusions carry persuasion only. But a conclusion based upon so complete a study, one unequaled in modern times, and based upon the comparative analysis made, must be given a preferred deference.
Thus far it appears that the lands classified as being subject to the challenged tax have this in common: They are lands which contain "* * * forested land, woodland, brushland, cutover land or clearing * * *" as distinguished from lands given over to cultivation or other non-forested lands. And they are lands "* * * which, during any time of the year, contain enough inflammable forest growth or debris to constitute a fire hazard." Further, they are forest lands in Eastern Oregon in contrast to forest lands in Western Oregon which have been separately classified and differently taxed. The lands brought within this classification will not be, in many instances, readily identifiable and some inequality is likely to occur. That does not make the classification bad. "We must consider its general application to the classes affected, and not to certain individuals belonging to such classes. Exact equality is not possible. Practical equality is constitutional equality. The human mind has not yet *612 been able to devise any scheme of taxation which will operate with unerring certainty and equality to all situations that may arise." State v. Kozer, 1926, 116 Or 581, 591, 242 P 621, 624. And see Allied Stores of Ohio v. Bowers, 358 US at 527. The policy reasons for the classification are apparent and the need for fire protection cannot be challenged. The classification made by the statutes meets the tests of reasonableness.
Having made a reasonable classification of forest lands, which for the purposes intended had characteristics in common, was it constitutionally bad for the legislature to tax these forest lands without regard to the value of the land? I think not. In reaching that conclusion it is not necessary to now decide if the legislature could tax land for any purpose without respect to value. But the purpose here was fire protection and fire protection does not necessarily have any relationship to the value of the land. Land of little value could, at any given time, provide a greater fire hazard than land of greater value. Neither is the cost of fighting fire correlated to the value of the land. It cannot be said that the tax is excessive or confiscatory. If that were so it would present a different case. There is no hostile discrimination. These are some of the conceivable causes that could have prompted the legislature to adopt this statute. The causes are reasonable. They serve the policy expressed and intended. Pacific Express Co. v. Seibert, 1892, 142 US 339, 12 S Ct 250, 35 L Ed 1035; Allied Stores of Ohio v. Bowers, 358 US 522. The legislature has made valid provisions to solve a problem not easy of solution. The wisdom of the solution is not for a court to judge. Walter v. City of St. Louis, 1954, 347 US 231, 237, 74 S Ct 505, 98 L Ed 660. It does not violate the *613 cited sections of the constitution and that is the limit of our inquiry.
The parties and the majority have attempted to place this tax in a particular category of taxation and to then test it as a property tax, or a privilege tax, or a regulatory tax or as a special assessment. The legislature is not constitutionally inhibited from adopting a tax that does not fall within the definition of any of the more common methods of exacting taxes. This tax has some of the characteristics of each of the types of taxes mentioned.
I believe the tax more nearly approaches a property tax than any of the other forms of taxation mentioned. And, for the reasons before stated, if it is treated as a property tax it does not conflict with the constitutional limitations.
[1] Moneys for this fund also may come from the "Forest Emergency Fire Cost Fund," which by ORS 321.175 was continued. It is not at all certain, but it appears that there were moneys in this fund when the statute was amended in 1953 by ch 375, § 20, and whatever remained in the fund at that time could be used for equalizing fire protection costs.
[2] Oregon Administrative Rules, ch 629, § 41-030, provides:
"In order that the principle of deductible insurance prevail when moneys from the East Side Emergency Fire Cost Fund are made available, the fire protection district shall first expend an amout equal to 1/2¢ per acre for Class C forest lands within the district; thereafter, said district may file a claim for emergency fire suppression costs."
[3] In his treatise he believed it necessary for the purpose of clarification to restrict the definition of "police power" to regulation. (at 18)
[4] The basic assessment to meet the fire protection district budget limits the levy on Class 3 land to five cents per acre or actual cost for such acreage. There is no limitation on Class 1 and 2 land.
[5] The plaintiff landowners do not agree with the statement that all Class C forest landowners can share in the fund created by the one-cent-per-acre levy. They contend that only those landowners who are furnished protection directly by the State Forester and are assessed to pay the annual fire protection district budget can be assisted by the fund. They assert that the landowner who provides fire protection by private association or individually, or who is provided fire protection by the federal government, gets no assistance from this fund. The statutory jungle of Oregon Forest Laws does not show clearly that they are wrong in this contention, but after a treacherous trek through this legal morass and the construction of all ambiguity in favor of constitutionality, we have come to the conclusion that all Class C forest landowners can directly or indirectly share in the benefits of this fund.
ORS 477.970(3) provides that this East Side Emergency Fire Cost Fund shall be used "for the purpose of equalizing emergency fire suppression costs in fire protection districts containing Class C forest lands." The key is, what are fire protection districts? Without referring to the numerous ambiguities and the sometimes conflicting statutes, we reached our conclusion primarily because of an official order of the Oregon State Board of Forestry, dated May 18, 1955, with map incorporated, which seems to put all forest lands into fire districts, and because of the provisions of ORS 477.004 and Oregon Administrative Rules of the Board of Forestry, § 41-080. This regulation provides for payment from the fund to a private contractor providing fire protection in a fire protection district.
ORS 477.028-477.030 are interpreted to require that property directly protected by an agency of the United States, pursuant to an agreement between such agency and the State Forester, pay their proportionate share of the fire protection district's budget, as provided in ORS 477.030. No law excluding such property owners from that assessment has been found. Being required to pay their share of this budget, such property owners are eligible to share in the equalizing accomplished by a distribution to their district budget from the outside Emergency Fire Cost Fund.
It is reasonable to assume that the anticipated cost to the United States of protecting these private lands and the assessments from such lands paid to the State Forester are taken into consideration in negotiating agreements between the United States and the State Forester as to which party is protecting what land and what charges are to be paid by one to the other.
[6] "* * * The Legislative Assembly recognizes that the forested areas situated within eastern Oregon predominate in Ponderosa pine trees and associated species, and that the forested areas situated within western Oregon predominate in Douglas fir and associated species; that because of this difference in species, different forest fire protection problems exist in eastern and western Oregon, and different logging conditions and circumstances in each necessitate varied forest practices in the disposal of forest slashing and debris; and that, therefore, in order to give recognition to such differences and their effect on the accomplishment of the public policy stated in this section, certain classifications of forest lands within the State of Oregon are established by ORS 321.005 to 321.255." | fb28db7db5cd6d396256c279d05561eb004390d8a3e42891afcfefa85929a39c | 1963-06-26T00:00:00Z |
1f8891ad-5111-4e6b-b792-627f3ba4d96b | Oregon Farm Bureau v. Thompson | 235 Or. 162, 384 P.2d 182 | null | oregon | Oregon Supreme Court | Reversed and remanded January 30, 1963.
Rehearing June 3, 1963.
Former opinion adhered to July 31, 1963.
*163 Duane Vergeer, Portland, argued the cause for appellant. On the brief were Vergeer & Samuels and Charles S. Crookham, Portland.
Kenneth E. Roberts, Portland, argued the cause for respondent Thompson. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, and David B. Williamson, St. Helens.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
REVERSED AND REMANDED.
ROSSMAN, J.
This is an appeal by the plaintiff, Oregon Farm Bureau, an Oregon insurance corporation, from a decree which the circuit court entered in favor of the defendants Frank Thompson and Dean Kellar. The suit which ended in the challenged decree was instituted by the plaintiff under ORS 28.010 through 28.160 to secure a declaration of the rights of the parties under a policy of liability insurance issued by it July 5, 1960, to the defendant Thompson. Thompson, who identified himself (1) in his 1960 federal income tax return as a "logger" and (2) in his testimony as "a tree farmer," owned a tract of land in Columbia County upon which the defendant Dean Kellar sustained an injury. In March 1960 Kellar entered the employ of Thompson and on September 21, 1960, while working for the latter, sustained the injury. This suit was filed after he instituted an action for damages based upon the injury. Thompson claims that Kellar was working as *164 "a farm employee" at the time of his injury; the plaintiff contends that at that time Kellar was working as a logger. Kellar's testimony was in accord with the latter view. The issue thus developed is important due to provisions of the policy of insurance which we will presently quote.
The suit for declaratory relief prayed for a decree determining whether the plaintiff is required to defend Thompson in the personal injury action just mentioned, and, if so, whether it is required to pay a judgment which Kellar may recover against Thompson. The decree that was entered and which is challenged by this appeal ruled that the policy just mentioned
The briefs mention the following provisions of the policy:
According to ORS 656.090, "farming is a non-hazardous occupation" and is not subject to the Workmen's Compensation Act unless the employer files the notice prescribed in ORS 656.034. No notice of that kind was filed. Logging is classified by ORS 656.084 (3) as a hazardous occupation. Thompson had not given the notice of rejection required by ORS 656.022 to 656.028 and 656.034 to remove him from the application of the Workmen's Compensation Act. Following *166 the injury, the Industrial Accident Commission held a hearing upon the issue as to whether Kellar, at the time of his injury, was working as a farm employee or as a logger. Thompson testified as a witness in the course of the hearing. At its close the commission entered an order which awarded workmen's compensation to Kellar. The insurance company contends that the ruling is res judicata of the issue logger versus farm laborer. We do not pass upon that contention; but see Holmes v. State Industrial Accident Commission, 227 Or 562, 362 P2d 371, 363 P2d 563.
Possibly the foregoing will be clarified if we gather into one paragraph some of its facts. Since farming is not listed by the Workmen's Compensation Act as hazardous, and since Thompson had not elected to bring his farming operations, if any, under the act, Kellar was not entitled to receive workmen's compensation benefits if his injury befell him while he was engaged as a farm worker. Upon the other hand, if Thompson was engaged in whole or in part in logging operations, and if Kellar was performing that type of work at the time of his injury, he was entitled to receive workmen's compensation benefits even though Thompson had not affirmatively accepted the act; work of that kind is classified by the Workmen's Compensation Act as hazardous. If Kellar's action for damages alleges that he was injured while performing farm labor, then plaintiff, as Thompson's insurer, is required to defend Thompson in the action because of the provision of the policy that we have quoted; it requires the plaintiff to defend "even if such suit is groundless." However, the provision does not require the plaintiff to defend Thompson if the injury occurred while Kellar was performing logging work. We noticed that Kellar is now receiving benefits under the *167 Workmen's Compensation Act upon a finding by the commission that his injury occurred in logging operations. Thompson, as we have said, was not a contributor to the Industrial Accident Fund, but he had not rejected the act. ORS 656.312 enables a workman who is engaged in a hazardous occupation to receive compensation benefits and at the same time maintain an action for damages against an employer who (1) operates in violation of ORS 656.052 or (2) is in default. In the event that a workman of that kind of an employer recovers a judgment and receives its payment he must repay the commission all sums it paid to him if the amount he was paid upon his judgment is sufficient in amount to enable him to do so. ORS 656.314.
The circuit court found that Kellar was performing farm labor when the injury was sustained September 21, 1960.
1. Thompson's defense in this suit was conducted upon the basis that he was a farmer and that Kellar was injured while performing farm work. Contending as he does that he (Thompson) was a farmer and that Kellar was performing farm work, Thompson argues that the insurance policy renders it the duty of the plaintiff to defend him in Kellar's action for damages. Thompson, however, conceded that in the six months period that passed after Kellar had entered his employ and until Kellar was injured he (Thompson) did much logging and used Kellar in conducting it. In fact, he testified that the two were partners. The trial judge ruled against that contention, and the latter has not been renewed upon appeal. We will give it no further mention.
The first assignment of error follows:
The second assignment of error reads:
We will now consider the first assignment of error.
Kellar entered Thompson's employ in March 1960. Thompson described him as "a farm laborer." We have mentioned that in his 1960 federal income tax return Thompson identified himself as a logger and that in his testimony he declared that he was "a tree farmer." He owned and used in the logging operations that were conducted in the six months period that Kellar was in his employ the following logging equipment: a loader with a power winch which was operated on a vehicle; *169 a Continental motor generating 15 or 20 horsepower which seemingly operated the loader; a swinging crane 16 feet long; a drum attached to the crane which was equipped with 175 feet of half-inch cable; an International logging truck with a bunk bed; a flatbed Ford truck which was equipped with drop tongs; chain saws; a caterpillar tractor; and various items of small tools such as wedges and axes.
Thompson also owned a small sawmill which stood upon a tract of land in Columbia County to which he, as a witness, occasionally referred as the home place and at other times as the farm. The tract was 380 acres in extent and contained a stand of timber. Thompson operated the mill only occasionally.
If Thompson was a farmer, the 380 acre tract just mentioned was the scene of his operations. Neither he nor anyone else mentioned any crop such as grain, fruit or vegetables which was grown upon it. At one time a little hay was produced on the place, but none recently. The only witness who mentioned any production upon the tract other than logs and pulp wood was the wife of the defendant Thompson. She testified as follows:
She also testified:
The foregoing is the only indication as to what the 380 acre tract was used for except the testimony which shows that timber was removed from it. No one testified that the trees were felled so as to increase the area devoted to pasture or to secure space for farming. Evidently the trees were cut as a logging operation. Apart from Mrs. Thompson's statement that she received $1,500 from the "young stock" there is no other evidence that indicates the tract produced revenue as a farm. Her testimony is virtually the only evidence that the tract produced anything except logs and pulp wood. The evidence indicates that Thompson owned about 600 acres of other timber land. It will be recalled *171 that he stated in his federal income tax return that he was a logger and that as a witness in this case he described himself as a tree farmer. In short, he did not claim that he was a farmer within the traditional meaning of that word.
Kellar, as we have said, entered Thompson's employ about April 1, 1960. At that time Thompson was engaged in logging and intended to use Kellar in it. He agreed to pay Kellar $2 a cord for cord wood that Kellar would produce and $4 a thousand for logs. Kellar agreed to give some attention to the 380 acre tract and for farm work upon it Thompson agreed to pay him $1 per hour. According to his testimony, Kellar worked a total of 50 hours in farm work upon the 380 acre tract in the six months of his employment that transpired before his injury; and "just under a hundred hours" according to Thompson's testimony. When he entered Thompson's employ Kellar was given the occupancy of a house upon the 380 acre tract and agreed to pay $25 per month rental for it. But he also agreed to perform chores for which he was to be paid $25 per month, thus canceling out the house rental charge. Farm chores, according to the testimony, consisted of such tasks as returning to the property a cow that had strayed away. The chores were performed, according to agreement, after Kellar had completed his day's logging work.
It is possible to determine quite closely the total of wages paid by Thompson to Kellar for (1) logging work, (2) farm work, and (3) chores. The source of the information consists of (1) wage checks issued by Thompson to Kellar and cashed by the latter, (2) receipts signed by Kellar for cash wages paid to him by Thompson, and (3) bookkeeping entries made by Thompson. In the period of April 23, 1960, to September *172 9, 1960, Thompson, according to the pay checks and receipts (all of which Thompson produced) was paid $1,102.34 as logging wages. According to the above mentioned bookkeeping entries made by Thompson and produced by him, he paid Kellar down to the day of the injury (September 21, 1960) a total of $221 farm wages which included $125 for chores and $96 for 96 hours of farm work at $1 per hour. It will be noticed that although Kellar entered Thompson's employ not later than April 1 and remained in it until September 21, 1960, no record of logging wages was shown prior to April 23 and the submission of figures ended with September 9. But if we ignore that deficiency in the record and add $1,102.34 (logging wages) to $221.00 (farm wages) we have $1,323.34 as the total wages that were paid to Kellar in the period of approximately six months. Kellar, therefore, received 83.3 per cent of his wages for logging and 16.7 per cent for chores and farm work.
Before Kellar entered the employ of Thompson, the latter had purchased the stumpage upon a 20 acre tract of land near Deer Island. Only a part of that land contained timber. After Kellar entered Thompson's employ the two proceeded to fell the trees upon the tract. They were joined by a third individual who worked with them and was paid by Thompson upon the same basis as Kellar. Trees that were suitable for the production of logs were cut into logs. Other parts of the trees and other timber were cut into cord wood. Thompson sold the logs to Pope & Talbot. Cord wood was sold to Crown-Zellerbach and to Weyerhaeuser Timber Co. Deer Island is located many miles from Clatskanie, the scene of Thompson's purported logging operations.
After Thompson had completed his operations upon *173 the Deer Island tract, which consumed about one month, he transferred his work to a place known as Fern Hill. He owned that tract of land, and the work upon it, according to him, was "salvage operations." It consisted of the removal of logs and pulp wood that had been previously cut.
When Thompson had completed the removal of everything marketable from the Fern Hill tract he took Kellar with him to the home place, or rather to a 70 acre fraction of it, where they felled trees, produced logs and pulp wood as they had on the Deer Island place. September 21, 1960, while he and Thompson were bringing a log to the landing so that it could be placed upon the logging truck, it made an unexpected movement and injured Kellar. We did not refer to the item of timber with which the two men were working as "a log" for the purpose of classifying it as merchantable timber, but merely because the word "log" is readily available. Thompson said that that stick was not merchantable. He swore that it was a tree top. He and Kellar had spent many days before the injury in that area felling trees and producing logs. According to Thompson, the work that was under way at the time of Kellar's injury was a cleaning up of the property after the logging. As a witness he recognized the duty imposed by our laws upon loggers to keep forests clean of logging debris. He said that the material with which they were concerned was "tops" and that it was suitable only for firewood. The piece that injured Kellar was, according to Thompson, 12 or 14 feet long, 8 or 9 inches in diameter at its larger end and 5 or 6 inches in diameter at its smaller end.
On the day of Kellar's injury, but before the latter occurred, Thompson had delivered, from another property, two loads of logs to a mill. While he was so engaged *174 Kellar was building fence for Thompson. About three o'clock in the afternoon of that day Thompson summoned Kellar to the place where he shortly sustained his injury and ordered him to help load the truck. Kellar testified that there lay on the ground "a load of large logs" that were cut in the preceding days by Thompson, Thompson's brother, and himself. Kellar described the log that injured him as 16 feet long, 14 inches in diameter at its big end and 8 inches at its small end.
Thompson testified that the log in question and other material of like kind which he termed tree tops were to be taken to his home as firewood. Kellar, upon the other hand, swore that they were putting the "logs on the truck to take to the mill."
It is clear from the above facts that in the six months period in which Kellar was in Thompson's employ Kellar devoted the principal part of his time to logging. Including a monthly allowance for chores, the total farm wages that were paid to him in the six months aggregated only $221. In fact, the amount that was paid to Kellar for farm labor under the agreement calling for $1 per hour was only $96. Kellar thought that it was less than that amount. The extensive logging equipment which Thompson owned and the fact that he conducted his operations at times many miles from his so-called farm indicated that logging, and not farming, was the pursuit that engaged his attention.
At the moment of injury Kellar was performing a type of work which is generally deemed logging. He had set tongs upon the log that was to be dragged in by the cable and the power driven machinery. Noticing that the log moved very slowly, he approached it to determine the reason for the slow movement and was *175 injured when the log made an unexpected lunge. His activity at that moment was definitely logging labor.
Thompson testified that he intended that the logging truck should haul this stick of timber and some others to his home for firewood. Kellar did not agree with that testimony, and said that the logs with which they were working were to be taken to a mill. It is agreed that logging debris lay upon the ground and that a duty was owed to remove the debris. Thompson testified that the operation that was going on when the injury occurred was the clearing of debris from the land. If that is so, the operation was logging and not farming.
We sustain the assignment of error under consideration.
2. The second assignment of error is based upon an award to Thompson, the insured, of an attorney fee. The award was made by the circuit court under ORS 736.325 which says in part: "If * * * suit or action is brought * * * and plaintiff's recovery exceeds * * *." Thus, an award is authorized only in the event that recovery is won against the insurance company. In the present instance, as we have just ruled, the activity that was under way when Kellar was injured was not within the purview of the policy. Hence, the latter did not impose upon the plaintiff a duty to defend Thompson or pay any judgment that Kellar may recover. Those being the circumstances, ORS 736.325 does not authorize the award of an attorney fee in this suit. We deem it unnecessary to determine the merits of several ancillary contentions presented by the plaintiff such as its argument that ORS 736.325 has no application to a suit for declaratory relief. We sustain the second assignment of error.
*176 The decree of the circuit court is vacated. The cause is remanded with instructions to enter a decree in accordance with the foregoing.
SLOAN, J., dissenting.
There was evidence in this case to sustain the trial court's finding that Workmen's Compensation Act payments were not "required." The trial court's finding should be affirmed.
*177 Duane Vergeer, Portland, argued the cause for appellant. On the brief were Vergeer & Samuels and Charles S. Crookham, Portland.
Kenneth E. Roberts, Portland, argued the cause for respondent Thompson. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, and David B. Williamson, St. Helens.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
FORMER OPINION ADHERED TO.
ROSSMAN, J.
The petition for a rehearing sumbits the following as its challenge to our decision:
*178 ORS 28.090, which is a part of our Declaratory Judgments Act, states:
ORS 17.440, in specifying the procedure upon appeal in equity cases, provides:
The Uniform Declaratory Judgments Act, written by the Commissioners on Uniform State Laws, and of which the Oregon act is largely a counterpart, does not prescribe in phraseology similar to ORS 28.090 the manner of trial. Its language is:
The alteration to the language of the Uniform Act which was made by the Oregon Legislature seems to emphasize that whether the cause receives trial by a jury or the chancellor is dependent upon whether it is a law or an equity proceeding.
Webb v. Clatsop Co. School District No. 3, 188 Or 324, 215 P2d 368, declares:
At that point ORS 28.090, supra, was quoted.
The foregoing appears to answer the contention of the petition for a rehearing that we misapplied "constitutional and statutory limitations" upon this court's "right to re-examine Findings of Fact on the appeal of proceedings in the nature of an action at law."
In our previous decision we construed this cause, as the trial judge had, as governed by equity procedure. The complaint prayed for equitable relief. Thompson's answer did likewise. The final instrument which terminated the case and which was prepared by counsel for defendant Thompson was entitled "Decree." At the close of the plaintiff's case in chief, the trial judge, in unmistakable language, announced that he deemed that the cause was governed by equity rules. No objection was made by any one to that interpretation of the nature of the case. The defendant Thompson at no time asked for a jury trial of any issue or that the case be tried as one at law.
Notwithstanding the foregoing, we believe that the real contention of the petition for a rehearing is that we should now deem that the parties sought relief only of a law character and that, therefore, the instrument which Thompson's counsel prepared and entitled "Decree" was in truth a Judgment. If such was its nature and if this case was not subject to equity procedure, the findings were binding upon us and the excerpt which we quoted from ORS 17.440 has no application to this cause.
It will be necessary, in resolving the issue just *180 mentioned, to turn again to the pleadings and the evidence.
This case was instituted by the plaintiff, an insurance company, as one for declaratory relief. The defendant Thompson had only one employee, the defendant Kellar. Since the latter's status as a defendant in this case is unimportant, we will hereafter refer to Thompson as the defendant. As stated in our previous opinion, the plaintiff had issued a policy of liability insurance to the defendant as the insured. The plaintiff claims that the policy protected the defendant only in his farming operations.
Some time after the policy was issued, Kellar was injured while in the defendant's employ. He sought compensation from the Industrial Accident Commission upon a contention that his injury befell him while he was working as a logger. Since farming is a non-hazardous occupation, Kellar could obtain no compensation if he was injured while performing farm labor. The Commission, after a hearing, ruled that Kellar was injured while working for Thompson as a logger and awarded him compensation. Still later, Kellar filed an action for damages against this defendant (Thompson) in which he alleged that his injury was due to Thompson's negligence. At that point Thompson demanded that the plaintiff (insurance company) defend him against Kellar's claim. As we have seen, the plaintiff claims that the policy which it issued to Thompson requires it to defend Thompson only against claims that arose out of his farming operations. When Thompson made his demand that the plaintiff defend him against Kellar's action, the plaintiff filed this proceeding for declaratory relief. After setting forth the contentions of the parties which showed that a *181 controversy existed between them, it prayed for a decree declaring that (1) the plaintiff was required to defend Thompson only against claims that arose out of farming work; (2) Kellar was injured while performing logging work; (3) the award which the Industrial Accident Commission made to Kellar established that he sustained his injury while performing logging work; and (4) such other and further relief as appropriate be awarded plaintiff.
When Thompson was confronted with the complaint, he did not challenge the jurisdiction of a court of equity over the cause by filing a demurrer of the kind authorized by ORS 16.260 (1). He filed an answer which included the following:
Continuing, Thompson's answer submitted "an affirmative defense" which alleged that the plaintiff had issued to him not only the policy of insurance mentioned in the complaint but also another policy which agreed to protect him from any claims arising out of the operation of "a certain International two-ton truck, including the loading and unloading thereof." It alleged that Kellar "was either a farm employee of this defendant or was engaged with this defendant" in a joint venture for their mutual profit and gain. Then Thompson's answer averred:
The prayer of Thompson's Answer reads:
The reply filed by the plaintiff admitted that Kellar was an employee of Thompson, but denied that he was "a farm employee engaged in farm employment or engaged in a joint venture for the mutual *183 profit and gain of the defendants." The reply also alleged:
It is seen from the foregoing that the plaintiff (insurance company) conceded that the policy of insurance which the complaint describes imposed upon it the duty to defend Thompson if Kellar sustained his injury while working as a farm employee for Thompson, but denied that Kellar was working as a farm employee at the time of his injury. It alleged that he was working as a logger and that the policy did not require it to defend Thompson upon claims arising out of injuries sustained in logging work. Thompson's answer agreed that it was the plaintiff's duty to defend him upon claims from injuries received by employees who were performing farm work. Thompson seemingly was unwilling to take a stand upon the issue as to whether Kellar was a farm employee or a logger. His answer never uses the word "logger" in referring to Kellar. In mentioning him at the time of his injury, it says: "At said time the defendant Kellar was either a farm employee of this *184 defendant or was engaged with this defendant in a joint venture for their mutual profit and gain." Thompson's answer made no direct averment that Kellar was injured while doing farm work. The nearest he came to anything of that character was to allege, "defendant Kellar was either a farm employee of this defendant or was engaged with this defendant in a joint venture for their mutual profit and gain." Thompson offered no explanation for his resort to alternative pleading. He worked day by day alongside of Kellar and was so engaged at the moment when the injury occurred. In fact, it was his application of power to the mechanical equipment that was hauling the logs to the truck that caused the log to flip over and injure Kellar. If Thompson did not know whether Kellar was a farm employee or a joint venturer, it is impossible to understand how the trial judge could discover what the situation was. Kornbrodt v. Equitable Trust Co., 137 Or 386, 2 P2d 236, 3 P2d 127, quoted approvingly the following:
However, in Turney v. Southern Pacific Co., 44 Or 280, 75 P 144, 76 P 1080, where the pleader could not know which of the alternatives was the truth, but his adversary had the facts, alternative pleading was permitted.
Since no issue is presented concerning Thompson's resort to alternative allegations, we will attach no importance to it. However, it is difficult to understand how Thompson, upon filing his petition for a *185 rehearing, could be confident that Kellar was injured while performing farming work and yet not know, when he filed his answer, whether Kellar sustained his injury while performing logging or farming work.
Thompson does not claim that the policy which the complaint describes protected him if Kellar and he were engaged in a joint venture, but indicates that the truck policy (described in the answer) afforded him protection in such a situation. We have read it and have found no provision of that character. Thompson's brief cites none.
Thompson presented evidence which in one of its phases tended to show that Kellar was a farm laborer, and in another of its phases showed that he and Kellar were engaged in logging operations. He brought to the trial and secured the reception into evidence of bookkeeping records which he contended established that he and Kellar were joint venturers. As our original opinion shows, those records indicate when we add to the sum which Thompson paid Kellar for farm labor other amounts which he paid Kellar for "chores" a total of only 16.7 per cent of the gross that Kellar received. He received 83.3 per cent for logging work. At the moment of Kellar's injury he was in the presence of power driven logging equipment consisting of such items as a crane, cable, drum and a power driven loader. That equipment was hauling a log onto a logging truck. Thompson claims that he intended to take the log (he called it a tree top) to his home for use as firewood. According to him, the stick was about 14 feet long, 9 inches in diameter on its big end and about 6 inches on the small end. Kellar described it as larger and swore that it would be delivered to the same mill which had purchased other logs produced upon the place. The place in *186 question was a fraction of a timbered area hundreds of acres in extent which Thompson owned. He and Kellar had, in the preceding days, cut the timber from one and one-half acres of it. Thompson testified that he was terminating logging operations upon the place and that it was his duty to remove the inflamable debris which resulted from the logging. If the log that was being hauled to the truck was, in fact, a log, as Kellar insisted, the conclusion is inevitable that at the time of his injury Kellar was engaged in logging work. But, if it was a tree top, then the only appropriate conclusion that can be drawn is that Thompson was performing his duty as exacted by statute and was removing the inflamable debris. The place to which he took the debris, if such was its nature, would not render its removal farming work.
Kellar gave the following testimony:
There is no evidence to the contrary. Thompson had styled himself in such important documents as his Federal Income Tax Return as a logger. As a witness he described himself as a tree farmer.
It will be recalled that Kellar received from the Industrial Accident Commission an award of compensation upon a contention that he worked for Thompson as a logger. The plaintiff viewed the award as res judicata of the issue. Thompson seemingly contended that the court should have ruled that any damages which Kellar might recover in his action against him (Thompson) should be offset by the amount of compensation which the Commission had paid Kellar, or *187 that Kellar's receipt of compensation prevented him from maintaining the damage action.
Thompson presented numerous receipts signed by Kellar and checks signed by himself, each of which stated that the sum was for "my share of logs." He nowhere testified that he paid Kellar any wages. He seemed very anxious to make it appear that Kellar was his partner. Upon one check that he gave to Kellar he wrote, "This check is a loan to my partner in our partnership, to help keep groceries in home." Kellar protested that he was not a partner and that he never received anything as a partner. The words "my share of logs" were written upon the papers by Thompson or his wife who helped him with his records. Thompson presented no paper bearing Kellar's signature which indicated that Kellar had received any wages for farming work. The phrase "my share of logs," according to Thompson, supported his contention that he and Kellar were engaged in a joint logging venture. He claimed that in addition to himself and Kellar, one of his brothers and a cousin were members of the venture. The Industrial Accident Commission, after the hearing which it conducted and in the course of which Thompson testified, ruled that Kellar suffered his injury while working as a logger and that he was entitled to compensation.
Kellar testified that he and Thompson had felled trees in the area and that at the time of injury there was a full "load of large logs left." Immediately prior to his injury he had been engaged in building for Thompson a short stretch of fence for which he was paid one dollar an hour. Then Thompson came for him with the logging truck and asked him to load the truck with the logs just mentioned. Regular power driven machinery, commonly employed by loggers in *188 loading logs upon trucks, was used in loading the truck.
No one denies that a court of equity had jurisdiction or power to construe these two policies of insurance. The construction of instruments occurs daily in courts of that character and, according to Borchard, Declaratory Judgments, page 240, courts of equity are well adapted for rendering service of that nature. In the present instance, both the plaintiff and Thompson prayed the court of equity to construe the policy mentioned in the complaint. In addition, the defendant's answer prayed for a construction of the policy (truck) which it alleged.
3. It is well established by the decisions of this court and the holdings elsewhere that a party, through failure to make timely protest, may waive his objection to the lack of jurisdiction of a court of equity over the subject matter if the court's jurisdiction is defective in some degree but not wholly lacking.
We quote the following from 21 CJS, Courts, § 109, page 165:
It will be recalled that Thompson's answer alleged *189 the policy of truck insurance, prayed for its construction and for general equitable relief.
The following is taken from United States National Bank of Portland v. Erickson and Terteling & Sons, 208 Or 141, 300 P2d 449:
It will presently appear that the trial judge made an unchallenged ruling that this cause was equitable and that Thompson acquiesced in the ruling.
United Brokers Co. v. Dose, 143 Or 283, 22 P2d 204, holds:
In Topolos v. Skotheim, 126 Or 683, 250 P 235, 270 P 753, Mr. Justice McBRIDE stated:
Lewis v. Shook and Lee, 185 Or 67, 201 P2d 908, states:
Flaherty v. Bookhultz, 207 Or 462, 291 P2d 221, 297 P2d 856, ruled:
If a court of equity was wholly lacking in jurisdiction over this cause, and we do not believe that such was the case, that fact was apparent upon the face of the complaint, and was as manifest to Thompson when he was served with the complaint as it was *192 when he wrote his petition for a rehearing. ORS 16.260 provides:
Thompson did not challenge the jurisdiction of the court of equity over this cause by demurrer or in any other manner. The complaint alleged fully the controversy and made it clear that the relief which the plaintiff sought was a decree. The court of equity's jurisdiction could have been challenged by demurrer.
Hudson v. Goldberg, 123 Or 339, 262 P 223, states:
See to like effect Barnes v. Eastern and Western Lumber Co., 205 Or 553, 287 P2d 929, at page 612.
In Topolos v. Skotheim, 126 Or 683, 250 P 235, this court, in sustaining the jurisdiction of the court of equity, stated:
Flaherty v. Bookhultz, 207 Or 462, 291 P2d 221, 297 P2d 856, states:
The rule stated in the foregoing decisions is in harmony with the rule established in virtually all jurisdictions that employ code pleading. See Phillips Code Pleading, §§ 291, 292; 41 Am Jur, Pleading, § 213, page 443; and 71 CJS, § 237.
It is manifest that the controversy between the *194 plaintiff and Thompson, and the relief for which each of them prayed, was not completely outside of the jurisdiction of a court of equity. To the contrary, the relief which they sought was within the scope of equity's powers. By not challenging the jurisdiction of the equity court by demurrer, Thompson must be held to have waived that contention.
Not only must we deem that Thompson waived the lack of the court's jurisdiction (if it in fact lacked jurisdiction), but we must also hold that he tried the case as one in equity and himself invoked equity practice. For example, upon at least two occasions evidence which was ruled inadmissible was nevertheless received under the practice known as "under the rule." The brief filed in this court by the defendant respondent Thompson makes this statement: "Evidence of the foregoing was introduced into evidence `under the rule' by way of the transcript of the testimony taken before the hearing officer of SIAC." The brief continues:
Still another part of Thompson's brief states:
*195 In the brief which Thompson filed in support of his Petition for a Rehearing he took our decision to task because we did not give effect to testimony which the trial judge had excluded but which got into the record "under the rule"; There he says, "this Court apparently overlooked or disregarded the testimony of Mr. Thompson at the hearing before the State Industrial Accident Commission."
From the foregoing we see that in the circuit court, in this court and upon Petition for Rehearing Thompson treated the case as governed by equity practice.
Further showing that the case was tried in the circuit court under equity practice is the incident which we will now mention. After the plaintiff (insurance company) had concluded the presentation of its evidence in chief and had rested, counsel for Thompson moved "the court to enter a decree on the basis of the plaintiff's own evidence and testimony that the Dean Kellar accident was, first of all, covered by the Farmers General Liability policy, or, in the alternative, by the automobile policy on the truck * * *. Without in any way waiving my motion for a decree and findings in favor of the defendant Thompson in this regard, I at this time move the Court to strike from" the complaint one by one some of its averments.
The motion brought an objection that equity practice did not countenance a motion of that character at that stage of the trial. Presently, the trial judge ruled:
At that point counsel for defendant Thompson made no objection whatever to the trial judge's interpretation of the nature of the case and the practice which governed it. To the contrary, he acquiesced in it by changing his motion. Then came this ruling:
The instrument which terminated this proceeding and from which the appeal is taken was prepared by Thompson's counsel and was labeled "Decree." We have also seen that upon appeal Thompson asked this court to employ equity practice and deem that evidence which was received in the circuit court "under the rule" is actually before us. Moreover, the disclosure that Thompson had neglected to remit to the Industrial Accident Commission and that Kellar was receiving compensation from that source rendered it the duty of the court of equity to decree a lien in the commission's favor upon Kellar's cause of action against Thompson. Both parties asked the court of equity for judicial service which it had the power to render. No *197 objection was made to the course delineated by the trial judge, as to the practice he was employing. He ruled that the cause was triable under equity procedure.
4. In taking our position we do not depart from the rule that parties cannot confer jurisdiction upon a court by stipulation. But if a party remained silent when he should have spoken, he may thereby become estopped from questioning jurisdiction unless the subject lies wholly beyond the court's jurisdiction. Any other rule would enable a party wittingly or unwittingly to mislead the trial judge when he makes a ruling as to jurisdiction and procedure and likewise to mislead this court when it later studies the record. In the present instance the trial judge's ruling was, as we have seen, crucial. When the trial judge made the quoted ruling and when this court read the transcript each was warranted in believing that Thompson concurred in it. An inference to that effect was fortified by the attitude he displayed at other times which we have mentioned, as, for example, when he labeled the jural instrument which terminated the case a "Decree." So far as this court is concerned, it was further confirmed when Thompson treated as evidence properly before us testimony that the trial judge had rejected but which came into the record "under the rule." Parties must be frank and timely disclose their position. They must voice exception to a ruling with which they do not agree, or, in the absence of something which justifies silence, be deemed as acquiescing. We should have the right to infer from the action of the defendant that he deems a cause equitable in nature if:
If it could be said that no one of those component parts could in itself suffice to show that the party, who thus conducted himself, treated the case as equitable, it must be borne in mind that in this case Thompson embraced all of those component parts and did so throughout the case.
We have no thought of encouraging insurance companies to resort to declaratory judgment proceedings as a means of bypassing trial by jury. But those who wish trial by jury must not sit mute in the trial *199 court and keep their thoughts to themselves. They should not postpone their demands until they reach this court. We abide by the rule expressed in United States National Bank v. Erickson and Terteling & Sons, supra, and in the other cases which hold that if the jurisdiction of the court can be readily challenged by a demurrer, a failure to do so will be deemed a waiver unless the court was wholly lacking in jurisdiction.
We adhere to our former opinion.
PERRY, J., concurs.
McALLISTER, C.J., specially concurring.
I concur in the result of the majority opinion, but wish to limit the grounds of my concurrence.
In my opinion this declaratory judgment proceeding was legal in nature, and the defendant Thompson was entitled to a resolution of the questions of fact as in an action at law. In this respect I agree with the dissenting opinion and the authorities cited therein. The majority opinion seems to equivocate as to the nature of the proceeding and expresses doubt that it is legal in nature. In that regard I disagree with the majority opinion.
I do agree that Thompson's conduct in treating the case in the trial court as an equitable proceeding, in failing to assert in the trial court his right to have the case treated as an action at law, and his acquiescence in the ruling of the trial court that the case was equitable, preclude him from now asserting that the questions of fact should have been decided as in an action at law.
I believe the questions of fact were properly re-examined *200 and decided in our original opinion. I, therefore, concur in the result of the majority opinion.
GOODWIN, J., concurs in this opinion.
DENECKE, J., dissenting.
The trial court made a finding of fact that Dean Kellar, the injured employee, was a "farm employee" at the time of his injury. In the original decision of this court it was held that Kellar was not a farm employee at the time of his injury; rather, he was a logger. A finding that Kellar was not a farm employee at the time of the accident removes from the coverage of the plaintiff's policy any liability of the defendant Thompson for Kellar's injury.
The majority opinion decides that this is in nature an equity proceedings; therefore, this court can retry the facts.
There was ample evidence to support the trial court's finding. Thompson testified that at the time Kellar was injured he was hauling tree tops from Thompson's property to Thompson's house, where they were to be used as stovewood. Mrs. Thompson's and Mr. Velliquette's testimony corroborated Thompson's testimony in this regard. Kellar admitted that he was being paid, at the time he was injured, one dollar per hour. All the testimony was that when Kellar was logging for Thompson he was paid per cord or per 1,000 board feet cut. However, when he was doing farm work for Thompson he was paid one dollar per hour. On the Thompson property 10 to 12 cows, plus their calves, were grazed. Thompson previously had chickens, rabbits, burros and goats. He had raised hay but now used this land for pasture.
Therefore, the question is squarely raised, is a declaratory judgment proceedings with issues such *201 as raised here to be regarded as a suit in equity with all the incidents of an equity proceedings, including the right of this court to try the facts de novo?
The declaratory judgment statute reads:
Consolidated Freightways, Inc. v. Flagg, 180 Or 442, 453, 176 P2d 239, 177 P2d 422, quoted with approval from Borchard, Declaratory Judgments (2d ed), 239, as follows:
And from Anderson, Declaratory Judgments, 160, § 56, as follows:
The United States Supreme Court recently amplified these general propositions. Simler v. Conner, 372 US 221, 83 S Ct 609, 9 Led2d 691, was a declaratory judgment proceedings. In holding that the petitioner *202 had a right to a jury trial the Per Curiam opinion states:
This question of whether a declaratory judgment proceedings is in law or equity most frequently arises in determining whether or not a party is entitled to a jury trial to resolve disputed questions of fact. Many of these cases are proceedings by insurance companies against their insureds seeking an interpretation by the court of the policy coverage for a particular claim. In every one of these cases, numbering about 25, the appellate court has determined that the *203 basic character of the proceedings is legal and, therefore, there is a right to a jury trial.[1]United States F. & G. Co. v. Spring Brook Farm Dairy, 135 Conn 294, 64 A2d 39, 13 ALR2d 769, is the one exception. The Connecticut court reasoned that its constitutional right of trial by jury does not apply to actions not existing in 1818, the date of the adoption of the Connecticut Constitution.
In Pacific Indemnity Co. v. McDonald, 107 F2d 446 (9th Cir 1939), 131 ALR 208 (arising in Oregon), a passenger was injured while riding with the insured. The passenger sued her host, the insured. The host's insurance company brought a declaratory judgment proceedings against its insured and the injured passenger. It alleged that the passenger and the insured were conspiring to procure a judgment against the insured driver and the insured breached the condition of the policy by giving false information to his insurance carrier and by failing to cooperate with it. The court viewed the situation as follows:
Dickinson v. General Accident F. & L. Assur. Corp., 147 F2d 396 (9th Cir 1945), is another case involving the same type of facts, i.e., a liability insurance carrier bringing a declaratory judgment proceedings against its insured seeking a determination that there was no coverage. This court approved that case and the quote therefrom, as follows:
One of the normal procedures referred to in the above quotation is for the injured party, here, Kellar, to secure a judgment against the insured, here, Thompson. Kellar could then garnish Oregon Farm Bureau. This is a type of law action and the issues of fact are *205 tried "as upon the trial of an issue of fact between a plaintiff and defendant." ORS 29.350; Eisele v. Knight, 234 Or 468, 382 P2d 416. Another common procedure is for the insured to pay the judgment and bring an action against his insurance company, here, Oregon Farm Bureau, on the policy. This would obviously be a straight law action on a contract.
If one is entitled to a jury trial on the issue of fact in such a declaratory judgment proceedings it logically follows that one is also entitled to have the trial judge's findings of fact be conclusive if there is any evidence to support such findings.
All the precedents, with the one exception noted, regard a declaratory judgment proceedings involving the issue of insurance coverage, such as presented here, as one to be considered as a law action.
While the majority opinion doubts that this proceedings should be considered as having the basic characteristics of a law action, it primarily rests upon the proposition that the defendant Thompson treated it as an equitable proceedings, and thereby waives any right to now demand that it be treated as having the basic characteristics of a law action.
The majority opinion quotes from U.S. Nat. Bank v. Erickson, 208 Or 141, 300 P2d 449, and United Brokers Co. v. Dose, 143 Or 283, 22 P2d 204, to the effect that if a party does not object to the matter being tried as a suit in equity he cannot contend upon appeal that it is an action at law. Maxwell v. Frazier, 52 Or 183, 96 P 548, 18 LRA (NS) 102, contains a complete statement of this problem. It involved an attempt by the plaintiff to file an interpleader suit, joining as defendants two parties who claimed the fund under separate contracts. "In this suit defendants did not question plaintiff's right to the bill [in equity], but *206 proceeded to join issues against him as to his contractual relations; * * *." (at 191) Nevertheless, the court refused to assume equitable jurisdiction and stated:
Assuming it is possible to confer equitable jurisdiction upon this court by failure to object thereto or by waiver, it is my opinion that this has not been done.
The majority opinion points to the following as evidence of acquiescence or waiver:
(1) Defendant prayed for equitable relief. As seen from the complete prayer, quoted in the majority opinion, the only portion sounding in equity is the "catch-all," "3. For such other and further relief as to the Court may seem meet and equitable." This exact "catch-all" prayer for equity was made in Flaherty v. Bookhultz, 207 Or 462, 467, 291 P2d 221, 297 P2d 856. The court said, "But the prayer is not part of the cause of suit or of action, and therefore this phrase can add no strength to a claim for equitable jurisdiction."
(2) The judgment prepared for the court's signature by the defendant was captioned, "Decree." The statute refers to the declaration that the court makes as either a "judgment or decree." ORS 28.010 et seq. It may be that the statute has in mind the use of "decrees" only in proceedings sounding in equity. My belief is that the usual practice in this jurisdiction is to designate the paper in which the court makes its *207 official declaration of the rights of the parties as a "decree"; and this without thought to whether the proceedings had the basic characteristics of law or equity. This practice may be the result of frequent pronouncements of this court that declaratory judgment proceedings are controlled largely by equity practice. Such pronouncements I consider as pertaining to minor and incidental matters of practice, such as whether the paper should be entitled, "Judgment" or "Decree"; or whether it is a "suit for a declaratory judgment" or an "action for a declaratory judgment."
(3) When the trial court announced that it considered this as a proceedings in equity the defendant did not object thereto. One does not object to the pronouncements of the court. One objects to actions attempted by another party. If the court rules adversely, no objection or exception is necessary except to instructions given to the jury.
(4) The defendant did not ask for a jury trial or that the case be tried as one at law. To my knowledge it has never been held that a failure to do either waives a party's right to contend that the proceedings are to be considered as a law action or indicates that the party considers the proceedings in the nature of a suit in equity.
(5) At the close of plaintiff's evidence, defendant Thompson moved to dismiss. The trial court stated that it considered this similar to a proceedings in equity and, therefore, it would not consider the motion unless the defendant was willing to rest and put on no more evidence. The defendant was unwilling to do this; so the defendant's motion to dismiss was not passed upon by the trial court. The defendant could have, by oral argument, attempted to persuade the trial court to change its mind. However, I know of no *208 principle of law that if one does not argue with the trial court's ruling, one thereby acquiesces in it.
(6) After the trial court's statement that it believed equity procedure would govern the proceedings, the defendant, on one occasion, offered evidence which had been excluded "under the rule." The plaintiff had previously done this on one occasion. The defendant offered it "under the rule" at the court's suggestion: "You may take it under the rule if you wish." Admittedly, taking evidence "under the rule" is a procedure peculiar to equity. The "rule" is in the form of a statute and is to enable this court to consider, in trying the facts de novo, evidence which it has found the trial court excluded in error. See ORS 17.045; Sutherlin v. Bloomer, 50 Or 398, 93 P 135. The procedure in this proceedings, without a jury, would have been exactly the same if the testimony given had been termed an "offer of proof" as it would have been termed in a law action. This conduct of defendant's counsel is inconsistent with his present position, but it was of no consequence.
(7) The defendant in his respondent's brief and his brief in support of his petition for rehearing urged this court to consider testimony not received by the trial court but in the record as taken "under the rule." In so doing the defendant was not urging that we re-examine any fact found by the trial court. The defendant also does not urge that such excluded evidence was improperly excluded. Therefore, this court would not consider it whether it was taken under the rule or as an offer of proof.
This type of argument in the briefs is inconsistent with defendant's position. It occurs, however, in conjunction with defendant's positive argument in both briefs that this is in the nature of a law action and *209 the trial court's findings are conclusive. This makes it appear that it was a matter of inadvertence rather than an intentional relinquishment of a known right.
(8) Defendant failed to demur and challenge the jurisdiction of the court of equity. A demurrer on this ground would have been overruled and properly so. The complaint stated a cause for a declaratory judgment. It did not invoke jurisdiction peculiar to a court of equity.
If defendant's conduct constitutes a waiver of his right to contend this should be treated as a law action, the plaintiff's conduct on appeal likewise constitutes a waiver of its right to contend this is an equity proceedings.
The basis of plaintiff's argument is stated in its opening brief as follows: "The trial court found * * * Dean Kellar was a farm employee. This finding was objected to by the plaintiff, but said objections were denied and counter-findings rejected by the trial court. This was a proper question of fact for the court to determine." (Emphasis added.)
Defendant's position on this issue of whether Kellar was a farm employee is stated in his brief as follows:
Defendant's above-quoted contention was not contested by plaintiff in its reply brief.
At the original oral argument plaintiff did not contest the proposition that the trial court's finding that Kellar was a farm employee was conclusive. The plaintiff orally argued:
This initial opinion of this court was the first time that the right to review de novo the trial court's finding that Kellar was a farm employee was asserted.
I do not believe it proper, however, to determine the substantive rights of these parties by putting their *211 respective conduct evidencing waiver into a scale and determining which conduct outweighs the other.
The starting point for a determination of these rights should be that this is a proceedings which has the basic characteristics of a law action. The only reason this court would not continue to regard this proceedings as basically a law action is that the conduct of one of the parties caused the opposing party, the trial court, or this court, to take some action because they were misled by such party's conduct into the belief that it was not basically a law action.
Nothing in the record indicates that anyone was misled or would have done anything in any different way. If the defendant had omitted that part of his prayer for general equitable relief; if the defendant had strongly contested the trial court's pronouncement that the case was governed by equity practice; if the trial court on such protest had either changed its mind and considered it as a law action, or if it did not change its mind; if the defendant had not offered excluded evidence "under the rule" and then requested this court to consider such evidence; if the defendant had labeled the declaration of rights a "judgment" instead of a "decree," nothing would be changed. The plaintiff would not have conducted itself differently in any way. The trial court would not. The results would not be different.
Despite this, the majority conclude that defendant's conduct was of such a character that he is now estopped from contending that this proceedings is what it really is, a law action, and for this reason an otherwise valid judgment in favor of the defendant must be reversed. With this I cannot concur.
SLOAN and O'CONNELL, JJ., join in this dissent.
[1] The cases are collected in 13 ALR2d 777, §§ 7, 12. More recent is Temperance Insurance Exchange v. Carver, 83 Idaho 487, 365 P2d 824. | d4876e826abce929bc1399d38ddc546f266d1294b5ef2da52dda384481fc0541 | 1963-07-31T00:00:00Z |
137f1f6c-b50d-468b-ba6a-4c4b315b0912 | Hughes v. Aetna Casualty & Surety Co. | 234 Or. 426, 383 P.2d 55 | null | oregon | Oregon Supreme Court | Reversed and remanded June 12, 1963.
*429 James P. Cronan, Jr., Portland, argued the cause and filed briefs for appellant.
Thomas H. Tongue, III, Portland, argued the cause for respondent The Aetna Casualty & Surety Company. With him on the brief was Stephen E. Parker.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
REVERSED AND REMANDED.
LUSK, J.
Harold J. Hughes, petitioner in the court below, is seeking by this proceeding to be declared the son and lawful heir of Mona LaWanda Nelson, deceased.
The petitioner is the illegitimate son of the deceased. He was born July 16, 1924; was apparently abandoned in infancy by his parents and became an inmate of St. Anges Baby Home in Portland. On May 10, 1927, by decree of the Court of Domestic Relations for Multnomah County, he was declared to be the child of Mr. and Mrs. J.J. Hughes. He was reared in the home of his adoptive parents and never knew his natural mother. The question is whether the decree of adoption is void because of asserted procedural defects. If that be so, the relationship of mother and son between the petitioner and his natural mother has never been severed and he is her sole heir at law and entitled to take her estate.
The question arose in this way. Mrs. Nelson, nee Oatman, died intestate on February 6, 1957. She was survived by a brother, Ellis F. Oatman, and a sister, *430 Bernita O. Taylor. Her estate was probated in the District Court for Washington County and on September 4, 1957, an order of final settlement was entered, including an order of distribution of the estate to the brother and sister (since deceased) as her sole heirs. In March, 1961, the petitioner learned of his natural mother's death and that she had left an estate. After consulting an attorney, on June 26, 1961, he filed a motion to vacate the order of final settlement and allow objections thereto on the ground that the petitioner was the sole surviving heir at law and next of kin of the decedent. The petitioner invoked ORS 18.160[1] as authority for commencement of the proceeding thus belatedly. As the determination involved the title to real property, the district judge transferred the question to the circuit court. The Aetna Casualty & Surety Company (hereinafter referred to as Aetna), surety on the administrator's bond and respondent here, appeared in opposition to the objections and, after various proceedings unnecessary to be detailed, the court on April 9, 1962, entered an order denying the petitioner's motion to vacate the order of final settlement and overruling his objections thereto. From the order of April 9, 1962, the petitioner has appealed.
The adoption proceedings were commenced by the filing of a petition by Mr. and Mrs. Hughes which contained the following averments:
As required by statute (Oregon Laws 1921, ch 215), the petition was served on the Child Welfare Commission of Oregon, which filed a written report with the court recommending that the petition be granted. Included in the report is the following:
On the tenth day of May, 1927, St. Agnes Baby Home filed with the court its "Consent to Adoption", reading as follows:
As previously stated, the court entered a decree of adoption on May 10, 1927. There are no findings other than recitals in the decree to the effect that the petitioners were of sufficient ability to bring up the minor child, Harold Joseph Oatman, properly, and that it was fit and proper that such adoption should take effect and that the Child Welfare Commission of Oregon had investigated the condition of the parties and recommended that the petition be granted. The record fails to disclose that notice of the proceeding was given to the minor child's natural mother.
1, 2. The question for decision is governed by two fundamental principles. One is that the right of adoption "being in derogation of common law, is a special power conferred by statute, and the rule is, that such statutes must be strictly construed." Furgeson v. Jones, 17 Or 204, 217, 20 P 842, 11 Am St Rep 808, 3 LRA 620. See, also, Volz et ux v. Abelsen, 190 Or 319, 324, 224 P2d 213, 225 P2d 768, and cases there cited. The other principle is that the court in adoption proceedings is exercising a special statutory power not according to the course of the common law, and when its decree is called in question, even collaterally, no presumptions in favor of jurisdiction are indulged, but the facts necessary for jurisdiction must appear affirmatively, *433 on the face of the record. In re Estate of Myers, 197 Or 520, 524-525, 254 P2d 227, and cases there cited. It is otherwise with a court of general jurisdiction exercising its customary common law powers, for "it is a rule of general application that every intendment consistent with the record of such courts will be indulged to sustain their proceedings and judgments." Freeman on Judgments (5th ed) § 383, quoted with approval in Capos v. Clatsop County, 144 Or 510, 523, 25 P2d 903, 90 ALR 289.
In addition, it is to be observed that the court of domestic relations for Multnomah county was in 1927 a court of special and limited jurisdiction, dealing solely with the problems of dependent, delinquent and neglected children. Oregon Laws 1920, Special Session, Chapter 2.[2] To such a court apply the same rules respecting the proof of jurisdiction when its judgment is attacked as in the case of a court of record exercising special statutory powers not according to the course of the common law. Capos v. Clatsop County, supra, 144 Or at 522.
The statutes governing adoption in effect in 1927 are to be found in Oregon Laws 1920. The parties seem to have assumed that the proceedings with which we are here concerned were taken pursuant to sections of the statute which provided for the adoption of children who were, either by commitment or otherwise, in the care of a child caring agency. These provisions will now be considered.
Oregon Laws 1920, section 9809, provided for permanent and temporary commitments by competent *434 courts of dependent or delinquent children to appropriate state and county institutions or suitable private child caring agencies. Temporary commitments were to be made "when the court for good and sufficient reasons decides that final adjudication of the case must be delayed, or that the child or children involved can reasonably be expected to soon return to ordinary home conditions in their own families"; and, in such case, guardianship of the persons of the children, it was provided, "shall remain with the court." Permanent commitments included "guardianship of the persons of such children."
The following sections of Oregon Laws 1920 relating to child caring agencies are pertinent: Such agencies to which dependent or delinquent children were committed by a court of competent jurisdiction through a permanent order could consent to the adoption of such children, § 9828. They could receive needy or dependent children from their parents or legal guardians for special, temporary or continued care. The parents or guardians might sign releases or surrenders giving to such agencies guardianship and control of such children, but such releases did not surrender the right of such parents or guardians in respect to the adoption of such children, nor entitle the agency to give consent to the adoption of such children, unless the release or surrender expressly recited that it was given for the purpose of adoption and that any entire severance of family ties by adoption, or otherwise, should be accomplished only by the order of a court of competent jurisdiction, § 9829.
Section 9830 provided:
3. The requirements of this section were not complied with. Neither of the documents designated was filed with the clerk of the court, so far as the record discloses. That the defect is jurisdictional there can be no doubt, for the purpose to be accomplished by compliance with the statute was "to give formal consent to such adoption." Consent to an adoption by parents or guardian or other person in loco parentis is jurisdictional, except where the statute does not require it. Burrell et ux v. Simpson, 203 Or 472, 474-475, 280 P2d 368; Williams et ux. v. Capparelli, 180 Or 41, 44, 175 P2d 153; Furgeson v. Jones, supra, 17 Or at 218. As stated in the case last cited, "consent lies at the foundation of statutes of adoption, and when it is required to be given and submitted to the court, the court cannot take jurisdiction of the subject-matter without it." See, also, 2 Am Jur 2d 879, Adoption § 24.
It is argued by Aetna that
4. The argument begs the question by assuming that St. Agnes Baby Home was authorized as guardian to give a "written surrender" of the child. The written surrender described in Oregon Laws 1920, § 9829 and referred to in § 9830, is an instrument to be signed by a parent or a guardian who has authority to consent to the adoption of a child. The pivotal question is whether the Home had such authority or, more precisely, whether the record of the adoption proceedings contains statutory proof of that fact. Had the mother of the child given a written surrender to the Home reciting that it was given for purposes of adoption, as provided in Oregon Laws 1920, § 9829, and had a copy of such surrender been filed with the clerk of the court, that would have been sufficient to make the Home's consent effective and would have satisfied the statute, just as would a certified copy of an order of permanent commitment of the child by the court. Neither of these documents being found in the record, the requisite evidence of consent to the adoption by someone authorized to give such consent is lacking. Whatever may have been the purpose of the legislature in using the phrase "for the information of the court," we think that the view is untenable that it was intended thereby to lessen the jurisdictional importance of the requirement that proof of the authority of the agency having custody of the child to consent to its adoption should be made in the manner set forth in the statute. Failure of the record to disclose a guardian lawfully authorized to give consent renders a decree *437 of adoption subject to collateral attack, Norris v. Dunn, 184 Ark 511, 43 SW2d 77.
5. It is suggested that the adoption can be sustained under Oregon Laws 1907, Chapter 34, § 9, which appears as § 9827 of Oregon Laws 1920 and reads in part:
This section was part of an act relating to dependent, neglected and delinquent children. Under its provisions when the court made an "award" of a child to the care of an association, the child became a ward of the association and subject to its guardianship and the association was authorized to assent to the adoption of such child. This statute did not make the distinction between permanent and temporary commitments when conferring the authority to consent to adoption found in sections 9828-9830 of Oregon Laws 1920. The latter sections are all parts of Oregon Laws 1919, Chapter 405, which, like the 1907 Act, is an act relating to dependent and delinquent children. Section 11 of the 1919 Act provided that all laws in conflict with its provisions were repealed. It is obvious *438 that section 9 of the 1907 Act is in conflict with the sections of the 1919 Act just mentioned, and nonetheless so because the former was included in Oregon Laws 1920 by the compilers thereof. It should be noted that Oregon Laws 1920 is not a codification, but a compilation.
6. It is also urged that the judge was empowered to consent to the adoption in loco parentis and that he did so. It is said that if there was no permanent commitment there was a temporary commitment, in which case guardianship remained with the court, as provided in § 9809, with authority to consent to the adoption. No such express authority is pointed to except that vested in the judge by section 9831, which authorized the judge to "record his consent to the adoption in loco parentis" when "foundlings or other abandoned children, whose parentage is unknown and who have not been assigned by a permanent court order to any child-caring organization, are presented for adoption."
Passing the objection that there is no allegation in the petition that the parents of the child were unknown and that, although the child was described in the petition as a foundling,[3] his name, Harold Joseph Oatman, is stated (which would seem to belie the notion that his parents were unknown), this contention cannot be sustained, because there is nothing to indicate that the judge did, in fact, undertake to exercise the authority to consent to the adoption. Aetna says that the evidence of his consent is that he signed the decree. On the contrary, he signed the decree, not as guardian, but as judge, exercising a judicial function. He did not give his consent, but he made an order.
We are asked to hold that this was a valid adoption *439 pursuant to section 9768, a part of the original adoption act of this state (Deady, General Laws of Oregon 1845-1864, page 692, § 62), but which was still in effect in 1927. That section read:
7. There is internal evidence that, notwithstanding the attempt of St. Agnes Baby Home to give its consent to the adoption, the proceeding was not intended to be governed by the statute relating to adoption of children committed to an institution, but rather by the section just quoted. This conclusion is indicated by the allegation of the petition that the child had been abandoned by his parents for more than one year last past and the statement in the report of the Child Welfare Commission that "since the St. Agnes Baby Home never acquired title, the year's abandonment next preceding the time of filing the petition is the basis upon which this proceeding is instituted." The court had judicial knowledge of the contents of the report. Dugger et ux v. Lauless, 216 Or 188, 194, 338 P2d 660.
8, 9. Although not in the exact language of the statute, it may be assumed that the averment that the parents of the child had "abandoned" him for a period of more than one year last past is the equivalent of a charge that they had "willfully deserted and neglected *440 to provide care and maintenance" for him. Curtis v. State, 48 Ga App 135, 172 SE 99; State v. Clark, 148 Minn 389, 182 NW 452; In re Potter, 85 Wash 617, 149 P 23; Wright v. Fitzgibbons, 198 Miss 471, 21 S2d 709; 2 Am Jur 2d 886, Adoption § 31. Volz et ux. v. Abelsen, supra, 190 Or at 323, is authority for the proposition that the allegations of a petition for adoption which substantially charged desertion by a parent are sufficient to give the court jurisdiction of the subject matter. Where desertion is the issue, consent of a parent is not required; the court is then to "proceed as if such parent were dead." Oregon Laws 1920, § 9768. In this case we are concerned only with the consent of the mother, since the child was illegitimate, § 9767. But notice of the proceeding to the mother was required, for § 9769 provided:
If a notice must be published "when the child has no parent living," it apparently is required when desertion is charged and the court is to "proceed as if such parent were dead." Even though this is not a correct interpretation of the statute, due process required notice to the mother. As Mr. Justice BELT said in Palm v. Smith et al, 183 Or 617, 628, 195 P2d 708:
See Allen et ux v. Allen et al, 214 Or 664, 684 (concurring opinion), 330 P2d 151; Whetmore v. Fratello, 204 Or 316, 321, 282 P2d 667; Burrell et ux v. Simpson, supra, 203 Or at 476; Johnson v. Johnson et al, 124 Or 480, 264 P 842. In Child Saving Institute v. Knobel, 327 Mo 609, 37 SW2d 920, 76 ALR 1068, the court, in an opinion which extensively reviewed the authorities, held that under a statute like Oregon Laws 1920, § 9768, while consent to an adoption by a parent who has deserted his child is not essential, still notice and an opportunity to be heard must be accorded him. The court quoted the following from Sullivan v. The People, 224 Ill 468, 475-476, 79 NE 695, 696:
We think the foregoing is good law. Numerous other decisions to the same effect are collected in annotations in 76 ALR 1077 and 24 ALR 416. See, also, 2 Am Jur 2d 904, Adoption § 55.
10. It follows that the decree of adoption was void as to the natural mother of the petitioner and she could have attacked the decree collaterally, even though it may have been binding on the parties to the proceeding and their privies. Beatty v. Davenport, *442 45 Wash 555, 559, 88 P 1109, 122 Am St Rep 937; Child Saving Institute v. Knobel, supra; Schiltz v. Roenitz, 86 Wis 31, 56 NW 194, 39 Am St Rep 873, 21 LRA 483; In re Estate of Zehner, 130 Neb 375, 264 NW 891; Ex parte Livingston, 135 NYS 328, 151 App Div 1; Hunter v. Bradshaw, 209 Ind 71, 198 NE 73; Norris v. Dunn, supra. The mother died without having called the adoption decree in question; whether this was because she never learned of it or knew about it and was content, there is no way of telling. The question now is whether the son has the same right which his natural mother had but failed to exercise.
There are few cases in the books in which an adopted child has challenged the validity of his own adoption. This court permitted such an attack in In re Estate of Myers, supra. The question in that case was whether a second adoption was void because the adoptive father in the first proceeding had not given his consent to the later adoption and had not been given notice of that proceeding. The object of the child's attack on the second adoption was to inherit from her deceased adoptive father. Opposing her, the next of kin of the deceased claimed to be his sole heirs at law. The second decree was adjudged void on the authority of Furgeson v. Jones, supra, which held that where the consent of the parent to the adoption was required and he neither gave his consent nor was given notice of the proceedings jurisdiction of the subject matter never attached and the decree was void and subject to collateral attack by one claiming through the adoptive parent. See, also, Dugger v. Lauless, supra, 216 Or at 194. In the opinion on petition for rehearing in Furgeson v. Jones Mr. Justice LORD, speaking for the court, said:
The "excepted classes" are those enumerated in Oregon Laws 1920, § 9768. As there was jurisdiction of the subject matter here the Myers case is for that reason distinguishable. It is, however, authority for the right of an adopted child to challenge collaterally his own adoption.
We observe, parenthetically, that Furgeson v. Jones, insofar as it holds that kindred of the adoptive parent, notwithstanding they are in privity with one who invoked the jurisdiction of the court in order to procure a decree of adoption, may attack such decree, is contrary to the weight of modern authority, 2 Am Jur 2d 919-921, Adoption §§ 72-74. In that respect Furgeson v. Jones seems to have been overruled by what was said in Allen v. Allen, supra, 214 Or at 672. See, also, the concurring opinion in the same case at 681-682 and 685-686, and Vanfleet's Collateral Attack § 408.
Two decisions of District Courts of Appeals in California sustain the right of the adopted child to attack the decree Estate of Hampton, 55 Cal App 2d 543, 567, 131 P2d 565; Estate of Martin, 86 Cal App 2d 474, 195 P2d 839. In both these cases there was failure to give notice to the parent in proceedings taken prior to the adoption proceedings. The opinion in the Martin case summarizes what was done:
The court concluded:
In the Hampton case, after holding that failure to give notice to the mother rendered the proceedings void, the court said:
The court applied the rule that strangers to the record may attack a void judgment when, if the judgment were given full effect, some right in them would be affected by its enforcement. See 55 Cal App 2d at 568.[4]
In each of these cases the attack on the decree of adoption came some 37 years after the decree was entered; and in each the decree was held to be void as to the adopted child and, therefore, no obstacle to *445 the child's claim to right of inheritance from the natural parent.
In Dean v. Brown, 216 Ark 761, 227 SW2d 623 (which will be referred to more fully in connection with another phase of the question) the court permitted collateral attack on an adoption decree by the adopted person 36 years after the decree was entered. There are two decisions and several dicta to the contrary. In Slattery v. Hartford-Conn. Trust Co., 254 Mich 671, 236 NW 902, as in the two California cases just discussed, the defect in the proceedings was failure to give notice to a parent and, as in those cases and Dean v. Brown, supra, the purpose of the attack was to establish the right of the adopted child to inherit from his natural parent.
It appeared in the Slattery case that the adopted person was 42 years of age at the time he sought to vacate the decree, which had been entered 34 years previously. He had been aware of his adoption for 25 years. The father received no notice of the adoption proceedings, which were commenced by the mother, the parents of the child having been divorced at the time. In its opinion dismissing the suit, the court proceeded upon two grounds; first, that the decree could not be collaterally attacked by anyone and, second, that the adopted child could not question it. As to the latter point the court said:
*446 The other case denying the right of the adopted child to attack the decree is a decision of the Surrogate's Court in In re Oddo's Adoption, 186 Misc 359, 59 NYS2d 612. The natural mother there consented to the adoption but the father did not consent and was given no notice of the proceeding. His consent was dispensed with on the theory that he had abandoned the child. Upon reaching the age of 16 the adopted child petitioned for an order to set aside the adoption. The court held that the father was entitled to notice, but that, since the child was under the age of 14 when the adoption order was granted and the statute did not require her consent, she could not be a party to a proceeding to vacate the order based on lack of notice to a natural parent or a failure of proof of abandonment by said parent. The court said: "The right of the natural father to challenge the adoption is a personal right which may not be exercised by others." The only authorities cited by the court were dicta in Schiltz v. Roenitz, supra, and Ex parte Livingston, supra. Similar dicta are to be found in In re Estate of Zehner, supra, and Edwards v. Cockburn, 264 Mass 112, 119, 162 NE 225. But in none of the cases where these dicta appear was the right of the adopted person to attack the decree involved.
The Slattery case was discussed in Estate of Hampton, supra, in connection with a claim of estoppel (see 55 Cal App 2d at 567) and distinctions in the facts of the two cases were pointed out. Assuming, without deciding, that delay can operate as an estoppel to attack a void judgment it could be so only if the delay were accompanied by knowledge of the facts. The record in this case discloses that the petitioner had no such knowledge until 1961, although he had been *447 told by his adopting parents at an undisclosed time that he was an adopted child.
The general rule as to collateral attack upon a judgment void upon its face is as stated in the Hampton case and is fully supported by the authorities there cited. (See footnote 4, supra.) See, also, 1 Freeman on Judgments (5th ed) 636-637, § 319, where it is said respecting strangers to a judgment:
11. The petitioner, who was an infant aged three years at the time of the adoption proceedings, was not, and could not have been, a party thereto, but was, as the court said in the Hampton case, "the central figure therein and the person whose interests were mainly affected thereby." We hold that he is entitled to attack the decree in this proceeding.
We come finally to Aetna's contention in support of the order of the court below based upon ORS 109.381 (Oregon Laws 1959, ch 609, §§ 2-6, inclusive) which reads:
12-14. This statute has two aspects in one it is a curative act, in the other a statute of limitations. As to the former, the general rule is that it is not competent for the legislature to validate a judgment void for want of jurisdiction and a statute purporting to have that effect would be unconstitutional, amounting to a denial of due process of law. If, however, the defect *449 in the proceedings is the omission of a requirement that could have validly been dispensed with in the first instance, the judgment may be validated by a retroactive law, subject to the restriction that it could not impair the obligation of a contract or a vested right. Frederick v. Douglas Co. et al, 176 Or 54, 66-67, 155 P2d 925; Smith v. Cameron et al, 123 Or 501, 506-507, 262 P 946; Nottage v. City of Portland, 35 Or 539, 548, 58 P 883, 76 Am St Rep 513; 2 Cooley's Constitutional Limitations (8th ed) 775-776; 16A CJS 131, Constitutional Law § 427; 11 Am Jur 1211-1212, Constitutional Law § 381. The requirement of Oregon Laws 1920, § 9830, that a copy of the order of permanent commitment of a child to an institution must be filed in the adoption proceedings is probably one that could have been validly omitted, but whether so or not, the statute cannot be applied to this case without violating the constitutional rights of the petitioner because in 1957, upon his mother's death, two years prior to the enactment of ORS 109.381, the petitioner's right to inherit his natural mother's estate had vested in him. State of Oregon v. Black, 193 Or 295, 311, 236 P2d 326; In re Witherill's Estate, 178 Or 253, 260, 166 P2d 129.
15, 16. Aetna argues, however, that subsection (1) of ORS 109.381 does no more than provide a presumption of validity of adoption decrees, and since a presumption in this state is a species of evidence, Wyckoff v. Mutual Life Ins. Co., 173 Or 592, 597, 147 P2d 227, and there is no vested right in a rule of evidence, State v. Randolph, 85 Or 172, 186, 166 P 555, no constitutional right of the petitioner would be impaired by applying the statute to this case. More pointedly, it is said, in substance, that the legislature, by enacting subsection (1), has repealed the rule of Furgeson v. *450 Jones. That it has done so validly as to future adoption proceedings there can be no doubt, but as much cannot be said of prior proceedings, for it is not competent for the legislature, by the device of construing a statute, to alter its meaning so as to affect vested rights, Finlayson v. Peterson, 5 ND 587, 67 NW 953, 33 LRA 532, 57 Am St Rep 584; Baker v. Clowser, 158 Iowa 156, 138 NW 837, 43 LRA NS 1056; Greenough v. Greenough, 11 Pa 489, 51 Am Dec 567; 11 Am Jur 1204, Constitutional Law § 375. Furgeson v. Jones and the cases that followed it announced the construction of the adoption statute of Oregon. To apply ORS 109.381 (1) to this case would be, as Chief Justice Gibson pointed out in the Greenough case, not only a violation of due process, but as well to give effect to an exercise of judicial power by the legislature.
17. By subsections (3) and (4) of ORS 109.381, it is provided, in substance, that actions to question decrees of adoption shall be barred if commenced after the expiration of one year from their entry, but if the adoption proceedings were instituted prior to August 5, 1959, then such an action must be brought within one year from August 5, 1959. That was the effective date of the act and, evidently, the provision as to prior proceedings was adopted in order to avoid the constitutional objection against cutting off remedies simultaneously with the passing of the limitations statute. See Vance v. Vance, 108 US 514, 517, 2 S Ct 584, 27 L Ed 808. But a judgment void on its face for want of jurisdiction is a nullity and should be vacated when called to the attention of the court. Salitan et al v. Dashney et al, 219 Or 553, 559, 347 P2d 974, 81 ALR2d 532, and cases there cited. See, also, Lothstein v. Fitzpatrick, 171 Or 648, 658, 138 P2d *451 919; McLean v. Porter, 148 Or 262, 271, 35 P2d 664. As stated in 49 CJS 880, Judgments § 449:
18. The courts therefore hold that a statute of limitations is not applicable to a judgment void upon its face. Elliott v. Clement, 175 Or 44, 58, 149 P2d 985, 151 P2d 739; In re Randall's Estate, 8 Wash 2d 622, 113 P2d 54; Foster v. Foster, 207 Ga 519, 63 SE2d 318; Fooks' Executors v. Ghingher, 172 Md 612, 192 A 782, cert den 302 US 726, 58 S Ct 47, 82 L Ed 561; 49 CJS 756, Judgments § 379.
19. In several of the states statutes imposing time limitations for attacking adoption proceedings similar to ORS 109.381 have been enacted. A review of cases construing these statutes may be found in 83 ALR2d 945, an Annotation to Walter v. August, 186 Cal App 2d 395, 8 Cal Rptr 778, 83 ALR2d 941. Of particular significance to the present question is Dean v. Brown, supra. In 1947 the Arkansas legislature amended its statute so as to provide that when (a) adopting parents had kept a child for two years under a court order and (b) no proceedings were filed within that time to challenge the order, then the adoption should be considered beyond attack. The amendment further allowed a period of six months from the effective date of the act to challenge adoption proceedings which occurred more than two years prior to such date. The facts in Dean v. Brown were as follows: Nettie Bond was adopted in 1911 when she was three years of age. An Arkansas statute provided that the adoption must *452 be made in the county in which the minor resides. This fact did not appear in the record of the adoption proceedings and the decree was held void for that reason. The adoptive mother died intestate in 1947, leaving an estate of both realty and personalty. This suit was between the adopted child and the nieces and nephews of the deceased who claimed to be her sole heirs at law. It appeared that the adoptive mother died before the effective date of the act. Under Arkansas law her real estate vested immediately in her heirs. The court held that the amended act could not operate retroactively so as to divest the next of kin of the real estate of the deceased. As to the personalty, however, the decision was for the adopted child because the title to the personal property of the deceased vested immediately in the personal representative and so remained at the time the attack on the decree of adoption was commenced by the next of kin and this was more than six months after the effective date of the act. The action of the next of kin was, therefore, held to be barred by the statute so far as the personal property was concerned.
Dean v. Brown was a case in which an adopted child was seeking to uphold rather than invalidate the adoption proceeding, but the principle upon which it was decided, that a statute of limitations cannot be made to apply validly to a void judgment, at least where to do so would be to interfere with vested rights, is fully applicable to this case, since the petitioner's right to his natural mother's estate, both real and personal, had fully vested before the enactment of ORS 109.381.
In Walter v. August, supra, the adoption decree was based on abandonment of the child and the defect in the proceedings was failure to give notice to the *453 child's natural parents who had not consented to the adoption. Over five years after the decree was entered the natural parents commenced a proceeding to have the decree set aside on grounds of fraud. The court held that the action was barred by a statute of limitation (enacted prior to the adoption proceedings) which provided a limitation of three years for attacking an adoption decree on procedural grounds and five years on any other ground. The court said that as to the natural parents the decree was not void, but voidable. "It would not be void in the sense that it could be treated as a nullity, or even attacked directly, by anyone except the child himself." It should be observed that in this case there was no question of vested rights and that, as the language just quoted from the opinion shows, the court expressly recognized the right of the child to treat the decree as a nullity. In answering the natural parents' contention that to apply the statute of limitation to the case would deprive them of due process, the court likened the possession of the child by the adoptive parents to constructive notice by adverse possession of land. A similar analogy was suggested in Dean v. Brown, supra. We think that there might be much reason and justice in the use of this analogy where the natural parents are attacking the adoption proceedings, but it could have no place where the child himself is seeking to have the decree of adoption set aside.
It is suggested by Aetna that the circuit court of Washington county lacked jurisdiction to set aside the adoption decree of Multnomah county. Inasmuch as the decree was a nullity so far as the petitioner is concerned, it was entitled to no respect, and, as the authorities already cited show, any court had jurisdiction to disregard it.
*454 Whetmore v. Fratello, supra, cited by Aetna, is not in point. That case was a suit brought in the circuit court for Multnomah county to set aside an adoption decree rendered in the county court for Coos county. The ground of the suit was lack of notice to the father of the child who had been divorced from the mother. We held, affirming the circuit court, that, as the father had consented to the adoption, notice to him was not required and the decree was valid. The opinion went further to state that the suit was brought under what was then ORS 109.380, which provided that a parent who had not, before the hearing upon a petition for the adoption of his child, had personal notice thereof, might at any time within one year after actual notice apply to the circuit court to reverse the decree and that the circuit court after due notice might in its discretion reverse the same if it appeared that any of the material allegations in the petition were not true. This statute was said to be a limited remedy applicable only when it is made to appear that any of the material allegations of the petition were not true and that, manifestly, the circuit court referred to in the statute was the circuit court of the county in which the decree of adoption was entered and that no other court would have jurisdiction of the subject matter. What was said in that regard, therefore, was based entirely on a construction of the statute and has no relevance to the instant case.
20. We conclude that the petitioner was never legally adopted and, as the sole heir at law of Mona LaWanda Nelson, deceased, is entitled to inherit her estate.
The decree is reversed and the cause remanded for further proceedings in conformity with this opinion. No costs or disbursements will be allowed.
[1] ORS 18.160 The court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, decree, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.
[2] This court was abolished in 1929 and its jurisdiction was vested in the circuit court for Multnomah county to be exercised by the circuit judge sitting in the department of domestic relations. Oregon Laws 1929, ch 183.
[3] A foundling is defined to be a newborn child, abandoned by parents, who are unknown. Munger v. Munger, 134 Ill App 512.
[4] The court cited in support of this principle the following cases: Martin v. Fisher, 25 Ohio App 372, 158 NE 287; In re Connolly, 154 Misc 672, 278 NYS 32; Mitchell v. Auto. etc. Underwriters, 19 Cal 2d 1, 118 P2d 815, 137 ALR 923; In re Johnson, 98 Cal 531, 543, 33 P 460, 21 LRA 380, 539. | 2c53c2f86d0a13c49b45426b7c62e43ee674563fe33220c1bac9d7ded8125478 | 1963-06-12T00:00:00Z |
37a0a07e-8dba-4958-96c7-8d6e66942103 | Adair v. McAtee | 236 Or. 391, 388 P.2d 748 | null | oregon | Oregon Supreme Court | Affirmed October 9, 1963.
Petition for rehearing denied November 5, 1963.
Petition for attorney's fees denied January 29, 1964.
Glenn D. Ramirez, Klamath Falls, argued the cause for appellant. With him on the brief was Quentin D. Steele, Klamath Falls.
*392 O.W. Goakey, Klamath Falls, argued the cause for respondents. With him on the brief was Philip J. Engelgau, Klamath Falls.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
SLOAN, J.
Defendant McAtee bought furniture from plaintiffs, Adair. McAtee signed conditional sales contracts to secure his obligation to pay the purchase price. The contracts were not signed by either plaintiff. However, the furniture was delivered to McAtee and was used by him for the purposes intended. He made some payments as required by his contract and thereafter failed to make further payment.
This was an action by Adairs to recover the purchase price. McAtee, in defense, claimed that there were no contracts because of the failure of either Adair to sign the contracts in question. The trial court awarded judgment for plaintiffs and McAtee appeals.
1. The rule is clear that a contract can be binding and enforceable even though not signed by one of the parties, if the party not signing adopts the contract by performance. Title & Trust Co. v. Nelson, 1937, 157 Or 585, 592, 71 P2d 1081, 114 ALR 1196; Sammons v. Paterson et al, 1928, 127 Or 11, 270 P 499; Estrich, Instalment Sales, 1926, page 212; 2 Corbin, Contracts, 1950, § 524, page 774.
2. Plaintiffs Adair adopted the contracts by full performance upon their part immediately after the contracts were signed by McAtee. In this instance it was meaningless whether the Adairs did or did not sign *393 the contracts. The assignments of error addressed to this issue lack merit.
3. In this appeal McAtee attempts, for the first time, to claim that Adairs were not the real parties in interest. The matter was not presented to the trial court and will not be considered here. Arney, Gohn v. City of North Bend, 1959, 218 Or 471, 475, 476, 344 P2d 924, 926, 927.
Affirmed.
O.W. Goakey, Klamath Falls, for the petition.
PETITION DENIED.
*394 O'CONNELL, J.
Plaintiffs, who prevailed petition this court for an order allowing attorney's fees on appeal.
Plaintiffs' action was upon a contract which contained a provision that "in case suit or action is instituted to collect said sum or any part thereof, purchaser promises to pay such additional sum as the Court may adjudge reasonable as Attorney's fees in such suit or action."
The Oregon cases involving the right to attorney's fees on appeal are in hopeless confusion. It is likely that one source of the confusion is the ambiguity in the early pronouncement of this court to the effect that a party has no right to an attorney's fee on appeal in the absence of a statute authorizing it. This pronouncement has been taken to mean that unless there is a statute expressly making provision for an attorney's fee on appeal none can be allowed either by this court or by the trial court. Thus where a statute simply provides that the prevailing party is entitled to attorney's fees it is construed to permit recovery only for the attorney's services in the proceedings prior to appeal.[1] And even where the parties have contracted that the prevailing party shall be entitled to attorney's fees, we have held that they will not be allowed for services on appeal.[2]
*395 On the other hand, we have construed a statute providing for the allowance of attorney's fees as including attorney's fees on appeal.[3] In some cases we have allowed a fixed attorney's fee in this court.[4] In other cases we have left the door open for an application to the trial court for attorney's fees for services rendered on appeal, though we have refused to make an award ourselves on the ground that in the absence of a statute we have no power to make such an award.[5]
It is fair to assume that contracts for the payment of attorney's fees to the prevailing party entered into after the decision in Keller v. Lonsdale, 216 Or 339, 339 P2d 112 (1959), and certainly after Gorman v. Jones, 232 Or 416, 375 P2d 821 (1962), were drawn with the understanding that in the absence of an express provision for attorney's fees on appeal they would not be allowed. And even before these latter cases were handed down, apparently it was generally understood among the members of the bar that a general contractual stipulation for attorney's fees would not include attorney's fees on appeal, for out of all the appealed cases involving contracts usually containing a provision for attorney's fees there have been relatively few in which the prevailing party has petitioned the court for such fees.
*396 Were it not for the foregoing considerations we would hold that a general contractual provision for attorney's fees would include allowance for services rendered upon appeal. But in view of the circumstances recited above, we are of the opinion that the confusion should be resolved by the prospective action of the legislature, and that until it is so resolved attorney's fees will not be allowed upon appeal in the absence of a statute so providing or in the absence of an express agreement that the prevailing party is entitled to attorney's fees on appeal.
The petition for the allowance of attorney's fees is denied.
SLOAN, J., dissenting.
It is the duty of the court, not the legislature, to construe contracts. Because the decisions in two of our recent cases were admittedly wrong and the earlier cases present a pattern of confusion is no reason to now abdicate our duty. Anyone who has studied the former decisions would be ill-advised to prepare contracts in reliance thereon. The majority opinion cites the cases where the court has held that fees were payable on appeal and fixed the amount thereof. And because the majority now more pointedly cry for help is no reason to believe that the legislature is more likely to relieve us of previous error than has been true in the past. The court's attempt in Landgraver v. Emanuel Lutheran, 1955, 203 Or 489, 494, 280 P2d 301, to shift a similar burden to the legislature was futile and eventually it became necessary for the court to rectify its own errors. Hungerford v. Portland Sanitarium & Benev. Ass'n., 1963, 235 Or 412, 384 P2d 1009.
*397 Although the present case does not involve an issue as significant as that of charitable immunity, it is no less a matter for this court to face and decide. The direct effect of the refusal to allow fees is to deprive the owner of the contract of the full amount of the debt that is due. As in Beardsley v. Hill, 1959, 219 Or 440, 348 P2d 58, the confusing pattern of prior decisions should be erased and attorney's fees should be allowed.
[1] Williams v. Corbett, 205 Or 69, 286 P2d 115 (1955); State ex rel v. Casey, 175 Or 328, 153 P2d 700, 172 ALR 862 (1944); Lewis v. Continental Casualty Co., 135 Or 170, 295 P 450 (1931); State v. Mohler, 115 Or 562, 237 P 690, 239 P 193 (1925).
[2] Gorman v. Jones, 232 Or 416 at 420, 375 P2d 821 at 823 (1962), without qualifying language states that "A party has no right to an attorney's fee upon appeal in the absence of a statute authorizing it." However, in Keller v. Lonsdale, 216 Or 339 at 353, 339 P2d 112, 118 (1959) it is held that attorney's fees for services upon appeal will not be allowed "In the absence of precedent, legislative sanction, or a contractual stipulation contemplating such an allowance on appeal * * *."
[3] Goodspeed v. Duby, 131 Or 275, 283 P 6 (1929).
[4] Purcell v. Washington Fidelity National Insurance Co., 146 Or 475, 30 P2d 742 (1934); Spicer v. Benefit Association of Railway Emp., 142 Or 574, 17 P2d 1107, 21 P2d 187, 90 ALR 517 (1933).
[5] Electrical Products Corp. v. Ziegler Stores, 141 Or 117, 10 P2d 910, 15 P2d 1078 (1932) (dismissed without prejudice to application in lower court). | 223efd0a44c91bf959a5122b706f5d16eca41585f9b3e07e7a9f75d849221ccc | 1963-10-09T00:00:00Z |
63d2cc8b-a100-4896-9777-59d16504fbd1 | Centennial Mills, Inc. v. Benson | 234 Or. 512, 383 P.2d 103 | null | oregon | Oregon Supreme Court | Affirmed June 19, 1963.
*513 James H. Clarke, Portland, argued the cause for appellant. With him on the briefs were Koerner, Young, McColloch & Dezendorf.
Edwin J. Peterson, Portland, argued the cause for respondents. With him on the brief were Tooze, Powers, Kerr, Tooze & Morrell and Earle P. Skow.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
LUSK, J.
Plaintiff was a lessee of a portion of a building in the city of Portland owned by the defendants, its *514 lessor. On January 3, 1961, a water pipe underneath the building burst and portions of the leased premises were flooded and rugs, drapes, and other personal property of the plaintiff were damaged. Plaintiff brought this action to recover its damages from the defendants. The jury returned a verdict for the defendants and plaintiff has appealed, assigning errors in the instructions of the court.
The complaint alleged that the "water pipe was out of repair or was in a defective condition", but that "[t]he exact nature of said defect in said pipe or the manner in which it was out of repair is unknown to plaintiff." But plaintiff made no attempt to prove the cause of the occurrence; its sole reliance was res ipsa loquitur.
There is no dispute about the facts. The eight-inch pipe passed from the street under a room in the leased premises used by the plaintiff as a laboratory. It served an automatic sprinkler system in other parts of the building. It was embedded some three or four feet beneath a concrete floor, which was six inches thick. The pipe could not be seen and could not be inspected without breaking through the concrete floor.
Defendants acquired ownership of the building in 1957 and no change was made in the pipe thereafter nor had there ever been any difficulty with it.
On the morning of January 3, 1961, an employee of plaintiff, on entering the building, discovered that the concrete floor of the laboratory had buckled and the floor of the laboratory and other portions of the leased premises were covered with water, sand, silt and other debris, damaging the rugs and other personal property of the plaintiff. The damage was caused by the breaking of the pipe. It was described as a "clean break."
1. The court submitted the case to the jury with an *515 instruction on res ipsa loquitur in language requested by the plaintiff.[1] Plaintiff, however, assigns as error the court's refusal to give the following instruction requested by it:
The instruction is faulty because it is phrased so as to imply that the inference of negligence from the occurrence is compelled rather than merely permissive, Ritchie v. Thomas et al, 190 Or 95, 112, 224 P2d 543; Guthrie v. Muller, 213 Or 436, 445, 325 P2d 883. But apart from this criticism, the court was not required to give the instruction.
*516 Plaintiff cites as authority for its request Fink v. New York Central Railroad Company (Ohio App) 56 NE2d 931, aff'd 144 Ohio St 1, 56 NE2d 456, and Leone v. Rutt's Hut, Inc., 55 NJ Super 485, 151 A2d 44.
Fink v. New York Central Railroad Company did not involve any question of instructions. A railway mail clerk sued the railway company for personal injuries caused by the derailing of the train in which he was riding. The defendant offered evidence tending to show that the accident was caused by the overturning of an automobile on the track and the engineer was unable in the exercise of reasonable care to see the obstruction in time to stop the train and avoid hitting it. The trial judge in his charge withdrew the issue of res ipsa loquitur on the theory that, as he said: "[A]fter all the evidence was concluded [the case] lost the characteristic * * * of a res ipsa loquitur means * * *." 56 NE2d at 934. The court of appeals held this to be reversible error, saying:
The Supreme Court affirmed the court of appeals. The question decided was, as the Supreme Court stated:
*517 2. In Leone v. Rutt's Hut, Inc., plaintiff sued defendant for wrongful death and other injuries caused by defendant's wooden sign falling on the automobile of plaintiffs' decedent. Defendant sought to show that the sign was caused to fall by an act of God, to wit: Hurricane Hazel. The Superior Court of New Jersey, Appellate Division, reversed a judgment for the defendant because the trial judge refused to give the following requested instruction:
The court cited as authority Galbraith v. Smith, 120 NJL 515, 1 A2d 34, which presented no question of instructions but was a case tried by the judge without a jury. The trial judge in that case had rendered a judgment for the defendant on the theory that when the defendant's explanation of the cause of the accident came in the inference from its happening was dispelled. The Supreme Court reversed, saying that the inference remained and should be considered by the trier of the facts.
Of course this is the law, but the question here is whether the judge must so inform the jury in an instruction such as the defendants requested. Upon that precise question the only authority which the plaintiff has brought to our attention is a decision of an intermediate appellate court of New Jersey.
3. In the instant case it is to be noted that the defendants offered no explanation of the bursting of *518 the pipe to rebut the inference of negligence which the jury could draw from the occurrence. They simply testified that they knew nothing about it. To that extent Leone v. Rutt's Hut, Inc., is distinguishable, because the instruction there held to have been erroneously refused was related to the defendant's explanation of the cause of the occurrence. Putting this to one side, we hold that it was not reversible error for the court to decline to give the instruction in the case at bar because we think it clear that the jury must have understood from the charge that they were to weigh the inference along with the other evidence in this case. Indeed, on the issue of negligence the inference and the defendants' duty to rebut it were substantially all that was submitted to the jury for their consideration. The court was not required to tell the jury in so many words to weigh the inference against the explanation.
4, 5. In Ritchie v. Thomas et al, supra, 190 Or at 112-113, we observed that the trial court is not required to instruct on the inference of negligence arising from the rule of res ipsa loquitur since that rule does no more than deal with a particular type of circumstantial evidence; but in Powell v. Moore, 228 Or 255, 269-270, 364 P2d 1094, we expressed the view that it is preferable to give such an instruction. We adhere to that ruling though it must be conceded that it constitutes an exception to the general rule governing instructions. ORS 17.255. Trial judges in this state do not, in other cases of circumstantial evidence, particularize in the manner required by the requested instruction. It is considered sufficient to inform the jury in general terms, as was done in this case, that they are the judges of the effect and value of the evidence and that their verdict must be the result of *519 careful and impartial investigation of all the evidence under the rules of law stated by the court.
We think that the court did not err in declining to give the requested instruction.
The only other assignment of error is directed to the giving of the following instruction:
As part of this assignment of error the plaintiff states that the court erred in failing to give the following instruction requested by it:
The exception taken to the instruction given was that it "in effect, overturns and revokes, withdraws from the jury the res ipsa inference of negligence *520 which is not only permissible but must be made under other instructions which were requested and part of which were partially given."
It is to be doubted whether this exception called to the judge's attention the precise point of objection which is now made. That point is the use of the word "maintenance" which, it is argued, excluded consideration of faulty construction, operation, or use of the water system. Kaufman v. Fisher, 230 Or 626, 635, 371 P2d 948, is cited for the proposition that the plaintiff is not required to point to any specific conduct as the basis for the inference.
6. The assignment might well be disposed of by holding that if the instruction given was erroneous in the particular stated the error was invited by the plaintiff which requested the court to instruct the jury as follows:
7. In its ordinary sense the word "maintain" means to "keep or hold", Webster's New International Dictionary (2d ed). See DeWolf v. Marshall Field & Co., 201 Ill App 542, 547. We think that the phrase in the instruction complained of, "if you find that the plaintiff has failed to prove that the defendants were negligent in the maintenance of the water pipe in question", is not open to the criticism that it limited the jury in its consideration of defendants' conduct to a finding of fault in any one particular, but rather *521 that it referred to any negligence whatever of the defendants referable to the exclusive control of the instrumentality concerning which the court had previously given the instruction on res ipsa loquitur. This, we believe, is the way the jury would have understood the use of the word "maintenance" and is, apparently, the sense in which counsel for the plaintiff used it when they prepared the instruction above set out defining the issues.
8. We do not think that it is necessary or appropriate for the court in a case of this kind to suggest to the jury various particulars in which a defendant may have been at fault such as are referred to in plaintiff's requested instruction, the refusal to give which is included in the assignment of error now under consideration. While it may be true, as suggested in Kaufman v. Fisher, supra, that the jury in a res ipsa case is, in a sense, permitted to speculate as to the negligence of the defendant, it is not permissible under the system in vogue in this state for the court to aid them in this speculative process. The lawyers are perfectly free to do that themselves. In the present case there was no inhibition on the attorneys for the plaintiff against suggesting to the jury in argument any of the possible causes of the bursting of the pipe or any type of negligence on the part of the defendants, even including their failure to break through a six-inch concrete floor in order to inspect the pipe.
The defendants have contended in their brief and on the oral argument that the doctrine of res ipsa loquitur does not apply to this case at all and that they are entitled to a directed verdict. Inasmuch as we find it unnecessary to reach this question, we indicate no opinion about it.
The judgment is affirmed.
[1] The entire instruction, including the instruction on the burden of proof, is as follows:
"Where, as in this case, the thing or instrumentality causing an accident is under the exclusive management and control of the defendants, and the accident is such as in the ordinary course of things does not happen, if those who have such management and control use proper care, the fact of the accident affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of due care on the part of the defendants, and that calls for evidence on the part of the defendants to rebut the inference which the jury may so draw. However, upon the whole case, it still remains, the burden of proof still remains upon the plaintiff to prove to your satisfaction by a preponderance of the evidence that the defendants were guilty of negligence as alleged, and that such negligence was the proximate cause of injury and damage to plaintiff's property. In this connection, the burden of proof in that regard does not shift but remains with the plaintiff." | 102e6556316495324ac925e91e9661e349476019749cbdcf40320de2e0fc2ada | 1963-06-19T00:00:00Z |
708f768a-2e66-486e-acba-ee8b72670527 | Livingston v. State Ind. Acc. Com. | 200 Or. 468, 266 P.2d 684 | null | oregon | Oregon Supreme Court | Reversed February 10, 1954.
*469 Wesley A. Franklin argued the cause for appellant. On the brief were Anderson, Franklin & Landye, of Portland.
Ray H. Lafky, Assistant Attorney General, of Salem, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Attorney General, of Salem, and Roy K. Terry, Assistant Attorney General, of Portland.
Before LATOURETTE, Chief Justice, and LUSK, TOOZE and PERRY, Justices.
REVERSED.
PER CURIAM.
This is an appeal by the plaintiff, Christine Livingston, from the judgment of the circuit court for Douglas county, denying her claim for compensation under the provisions of Workmen's Compensation Law of this state.
Briefly, the facts are: Plaintiff's husband, Marion Livingston, was employed by the California-Oregon Power Company as an oiler on a shovel used in excavating river rock to be run through a rock crusher for use in the construction of a power dam. This dam was being constructed on the Clearwater river, a tributary of the North Umpqua river, in the Umpqua National Forest. To reach the crusher which was located farther up on the North Umpqua river than the dam, *470 it was necessary to travel over a road constructed by the Power Company under a permit issued by the United States Forestry Department. While the road was constructed and maintained at the expense of the Power Company, and chiefly used by it, yet it was open to use by the general public.
The Power Company also maintained a company housing project at "Clearwater", which was some 10 or 15 minutes drive by automobile from the scene of the dam construction. This camp was operated by the employer and the employes paid so much per day for board and room. As a part of the wages paid the workmen, the employer paid for 15 minutes travel time from the job site to the camp; workmen traveled to the job on their own time. In addition, the Company furnished transportation between the camp and the dam, which facilities the employes could use if they so desired, although they were not required to do so.
On June 30, 1951, Marion Livingston was riding in a motor vehicle owned and driven by a fellow workman. They were en route from the dam to the Clearwater camp when the vehicle ran off the road and into the river, and Marion Livingston was drowned. At the time of the fatal accident the automobile was being driven upon the road constructed and maintained by the Power Company. The accident occurred within the 15 minutes travel time for which decedent was paid by his employer.
The plaintiff, as the widow of Marion Livingston, deceased, filed a claim for widow's benefits with the State Industrial Accident Commission, pursuant to the provisions of § 102-1752, OCLA, as amended by ch 61, Oregon Laws 1947 (ORS 656.152). Her claim was denied upon the ground "that the accident of June 30, 1951, that caused the death of Marion Livingston, *471 did not arise out of and during the course of his employment with the California-Oregon Power Company". Plaintiff appealed to the circuit court for Douglas county. The trial court denied her claim upon the same ground adopted by the State Industrial Accident Commission.
The sole question for determination on this appeal is whether, under the facts as stated, the accident causing the death of Marion Livingston "arose out of and in the course of his employment", within the meaning of our Workmen's Compensation Law.
This question has not been heretofore directly decided in this state. With commendable frankness, the able Assistant Attorney General admitted during the oral argument in this court that the question was a close one.
In a note in ALR appended to the case of Voehl v. Ind. Ins. Co. of North America, 288 US 162, 77 L ed 676, 53 S Ct 380, 87 ALR 245, at page 250, the author states:
The same exception is recognized in 1 Larson, Workmen's Compensation, p 227, § 16.20, where it is said:
*472 Also see Horovitz, Workmen's Compensation, p 162; Horovitz, Current Trends in Workmen's Compensation, p 679; 12 NACCA Law Journal 92.
In a very recent decision the Arizona Supreme Court recognized this exception to the general rule: Serrano v. Industrial Commission, 75 Ariz 326, 256 P2d 709, 710. The factual situation in the Arizona case is very similar to that in the case at bar. The court quoted with approval from the case of Kobe v. Industrial Accident Commission, 35 Cal2d 33, 215 P2d 736, 737, as follows:
1, 2. This court has uniformly held that the provisions of the Workmen's Compensation Law should be interpreted liberally in favor of the workman, and particularly should this be so when we are confronted with a "borderline case". In the interests of justice, and to carry out the humane purposes of the Compensation Law, all reasonable doubts should be resolved in favor of the workman.
Although dealing with somewhat different factual situations, nevertheless, in prior opinions of this court we have at least inferentially approved the rule sought to be established in this case by the plaintiff. Lamm v. Silver Falls Timber Co., 133 Or 468, 277 P 91, 286 *473 P 527, 291 P 375; Varrelman v. Flora Logging Co., 133 Or 541, 277 P 97, 290 P 751, 282 US 813, 75 L ed 728, 51 S Ct 214.
3, 4. We hold that if an employer pays for the employe's time during his travel from the job site to his home, the relationship of employer and employe continues during that period of time, and an injury occuring during the course and, in particular, the time of such travel from accidental causes, arises out of and in the course of the employment, and is compensable.
Judgment reversed. | 1d9163a4194237adaa101cc0648b3c3faf2e0b64b65863eff087efad92fc67ac | 1954-02-10T00:00:00Z |
095df905-da30-403c-8588-554477077d72 | Lonsford v. Burton | 200 Or. 497, 267 P.2d 208 | null | oregon | Oregon Supreme Court | Affirmed February 24, 1954.
*498 Stuart W. Hill, of Portland, argued the cause for appellants. On the brief were James L. Means, and Kerr & Hill, all of Portland.
Thomas H. Tongue, III, of Portland, argued the cause for defendants-respondents and intervenors-respondents. On the brief were Clif. Langsdale of Kansas City, Mo., and Hicks, Davis & Tongue, all of Portland.
Before LATOURETTE, Chief Justice, and ROSSMAN, LUSK, BRAND, TOOZE, and PERRY, Justices.
DECREE AFFIRMED.
BRAND, J.
This is a class suit in equity brought by three members of Local 401 of the International Brotherhood of Boilermakers, Iron Ship Builders and Helpers of America "on behalf of themselves and all other members of Local 401," seeking equitable relief from alleged *499 interference with the affairs of Local 401 by the International Brotherhood, with which Local 401 is affiliated. Plaintiffs prosecute this appeal from a decree entered in the lower court in favor of the defendants dismissing the cause.
The suit was commenced on 4 May 1951, with the filing of the original complaint. An amended and supplemental complaint was filed by the plaintiffs in the Circuit Court for Multnomah County on 10 July 1951. The complaint alleges that Local 401 is a voluntary, unincorporated association of approximately 140 members; that it is impracticable to bring them all before the court; that plaintiffs Lonsford, Coffey and Osburnsen, being members in good standing, therefore sue on behalf of all except the defendant Burton, and that the plaintiffs "have paid initiation fees and dues into the treasury of said LOCAL which fees and dues, together with the surplus accumulated therefrom in the past, amount to the sum of approximately $300,000." The International Brotherhood is described as a voluntary, unincorporated association and the parent organization of Local 401, and the defendants are identified as officials of the International. Concerning the defendant Burton, it is alleged that he "is a member of the LOCAL. He is also an officer and agent of the INTERNATIONAL, trustee of the funds of the LOCAL, and the officer and agent in charge of the affairs of said LOCAL. He has never been elected by the LOCAL [as] one of its officers or agents, but was appointed by the INTERNATIONAL and is now serving as the only governing officer and trustee of said LOCAL." A printed copy of the constitution and by-laws of the International Brotherhood and of the subordinate lodges or locals is physically attached to and made a part of the complaint. The constitution of the subordinate *500 lodge designates the officers thereof and their duties, and provides that they shall be elected by the subordinate lodges and be responsible to the International. It is further alleged:
It is then alleged that the defendants without right or justification transferred the offices of the Local to Roseburg, Oregon, without the knowledge or consent of the Local, and that the Local will not be returned to Vancouver, Washington, unless ordered to do so by this Court. It is further alleged that the International exercised unlawful control over the affairs and funds of the Local
Plaintiffs allege that many members of the Local, including the three named plaintiffs, reside and work in Vancouver, and are unwilling to move to Roseburg. Fear is expressed that unless the Local is retransferred to Vancouver, the plaintiffs will be unable to exercise the rights given them by their membership. The complaint sets forth the following provision of the subordinate lodge constitution:
It is asserted that the defendants, through the defendant Burton, have removed the funds, are improperly administering them, and are depriving the plaintiffs of benefits which would be derived from the *502 maintenance in Vancouver of a labor union. It is further alleged that the defendants have deprived Local 401 of all of its jurisdiction which was given to it under its charter, and that such jurisdiction has been transferred to Local 72 of Portland, Oregon. Lastly, it is alleged that since the filing of the original complaint, the defendants have been and now are attempting to expel from membership certain members of said Local without any hearing, and without just cause. The prayer is for an injunction restraining the defendants from interfering with the Local, and from maintaining the office of the Local at any place other than Vancouver, and from expelling the plaintiffs. They seek an accounting and receiver and a restoration of the funds of the Local.
The three specifically-named defendants filed an answer on behalf of themselves only, and not on behalf of any other members of the International. In addition to formal matters, the defendants admit that the affairs of the Local have been administered by representatives of the International, and that no meetings of the Local have been held and no officers elected, and that Harold E. Burton was appointed by the International as trustee to administer the affairs of the Local. They admit that the charter of the Local has been moved to Roseburg, Oregon, and will not be returned to Vancouver. They admit that the jurisdiction formerly given to Local 401 was taken away and given to Local 72. The defendants admit that the defendant Burton declined to accept monthly dues from the plaintiff Lonsford, and from one John Stucklik because they were residing within the jurisdiction of Local 72, but defendants allege that the said Lonsford and Stucklik were permitted, and did, pay their dues to the International. The defendants further allege that the plaintiffs *503 have failed to exercise the right of appeal to the executive council of the International and that the court has no power to intervene in the dispute. They allege that any order such as that prayed for in the complaint would abridge the constitutional rights of the members of the International peaceably to assemble and would impair the obligation of the contract between the local union and the International and would deny to the defendants due process of law. As a separate defense, it is alleged that at no time since the formation of Local 401 in 1943 has there been any request or demand by the Local, or by any of its members, for the holding of meetings or the election of officers or any objections to the conduct of the affairs of the Local, except as indicated by the filing of the complaint.
As a fifth separate defense, it is alleged that on 12 June 1951 an order was duly entered in the United States District Court for the District of Kansas, in the nature of a restraining order, and appointing a receiver to supervise certain funds of Local 401, and that after hearing in open court, the provisions of the said order were, on 6 July 1951, continued in effect. The orders of the federal court are set forth as exhibits to the answer. The reply was in the nature of a general denial, except that they admit that the orders of the federal court were made as alleged in the answer.
On 5 September 1951 eight separate documents purporting to be petitions in intervention were filed by members of Local 401, in opposition to the complaint of the plaintiffs. Ninety-five persons who are members of Local 401 have signed one or more of the petitions which were allowed as such by an oral order of the court during the progress of the trial. The plaintiffs filed a general denial to the petitions in intervention. *504 The petitions and their effect will be considered at a later point in this opinion.
A brief review of the facts, as we find them to be, is necessary for an understanding of the legal problems involved.
It appears from the testimony brought out in this case that Local 401 was organized during the war when the Vancouver shipyards were in full operation. Local 72, affiliated with the same International Brotherhood, with offices in Portland, Oregon, had territorial jurisdiction over the Vancouver shipyards under its charter, but because of racial difficulties brought on by the great influx of workers to the Portland-Vancouver area during the war, Local 72 insisted that another local be established in the area. It appears also that Local 401 was only to continue in existence for the period of the emergency and that the International Brotherhood and Local 72 had an understanding that that part of the Vancouver jurisdiction taken from Local 72 was to be returned to it upon the cessation of shipbuilding in the Portland-Vancouver area. At the time of trial there was no shipbuilding at Vancouver and there had not been for some time. Although the number of members in Local 401 during the peak of activity in the shipyards numbered many thousands, the present membership is approximately 133, a majority of whom are presently living in Oregon and Washington. The rest are scattered throughout a number of other states.
We quote with approval from the opinion of Judge Crawford in the trial court, in which he set forth his findings and conclusions:
1. In their opening brief plaintiffs state as the theory of their case that they are bringing a class suit by the members of Local 401 against members of the International Brotherhood. Our first duty is to determine whether the plaintiffs have established by pleading and proof that they are entitled to maintain a class suit. The trial court held that they were not entitled to do so, and that ruling is the basis of the first assignment of error. Our statute provides:
The portion of the section authorizing class suits is substantially identical to the statutes of other states, and is commonly recognized as the codification of the rule of equity pleading first adopted by the Courts of Chancery of England which permitted class or representative suits in certain cases. Trustees of M.E. Protestant Church v. Adams, 4 Or 76. As stated in *507 Hansberry v. Lee, 311 US 32, 41, 61 S Ct 115, 118, 85 L ed 22, 27:
2. It is generally held that in a proper case a few members of a class may sue or defend for the whole. The question at issue is whether this is a proper case. Plaintiffs rely upon Restatement, Judgments, Sections 26 and 86 which read as follows:
They do not cite Section 116 of the same treatise which reads as follows:
From the comment on this section we read:
Robinson v. Nick, 235 Mo App 461, 136 SW2d 374, is cited by the plaintiffs and later analyzed herein:
In Kimes v. City of Gary, 224 Ind 294, 66 NE2d 888, referring to a class action, the court said:
The court also held that "class actions should be closely scrutinized and should be permitted only in clear cases. * * *"
*509 The following cases support the general proposition that the interest of the plaintiffs and that of the persons represented by them must be so identical that the motive and inducement to protect and preserve may be assumed to be the same in each. Archer v. Musick, 147 Neb 344, 23 NW2d 323; Pelelas v. Caterpillar Tractor Co., 113 F2d 629 (CCA 7th); Los Angeles County v. Winans, 13 Cal App 234, 109 P 640; Goodloe v. Woods, 115 Va 540, 80 SE 108; Nunnelly v. First Federal Bldg. & Loan Ass'n of Ogden, 107 Utah 347, 154 P2d 620; Hansberry v. Lee, supra; 311 US 32, 85 L ed 22; 39 Am Jur 921-2, Parties, §§ 47, 48; 67 CJS 921, Parties, § 13; Oglesby v. Springfield Marine Bank, 385 Ill 414, 52 NE2d 1000; Pacific Fire Insurance Co. v. Reiner, (La) 45 F Supp 703; Behrman v. Egan, 9 NJSuper 171, 75 A2d 627; State v. Laramie Rivers Co., 59 Wyo 9, 136 P2d 487; Langson v. Goldberg, 373 Ill 297, 26 NE2d 111; South East Nat. Bank v. Board of Education, 298 Ill App 92, 18 NE2d 584.
In Archer v. Musick, supra, the court said:
In City of Lakeland v. Chase Nat. Co., 159 Fla 783, 32 So2d 833, the court said:
See also Matthews v. Landowners Oil Ass'n., Tex Civ App, 204 SW2d 647. And see Annotation, 132 ALR 749.
A case analogous to the one at bar is Maxwell v. Brougher, 99 Cal App2d 824, 222 P2d 910, involving a question of church discipline. The court said:
The authority of the cases cited supra is recognized in Restatement, Judgments, § 86, p 422, comment f. We quote:
The plaintiffs rely upon the following decisions: Trustees of M.E. Church v. Adams, 4 Or 76; Liggett *511 v. Ladd, 17 Or 89; Carpenters Union v. Backman, 160 Or 520, 86 P2d 456; Quinn v. Marvin, 168 Or 52, 120 P2d 227; Mursener v. Forte et al., 186 Or 253, 205 P2d 568; Gieske v. Anderson, 77 Cal 247, 19 P 421; Citizens Banking Co. v. Monticello State Bank, 143 F2d 261 (CCA 8th); Snyder v. Murphy, 333 Pa 305, 5 A2d 226; Stimson v. Lewis, 36 Vt 91; Holthoff v. State Bank & Trust Co., 208 Ark 307, 186 SW2d 162.
We have no criticism of the cases thus cited. They recognize the right in a proper case to bring a representative suit, but they do not discuss the principles set forth in Kimes v. City of Gary, supra, and in the many other decisions which we have cited in support of the rule stated in that case, nor did the pleadings or evidence present issues analogous to those which appear in the pending case.
A further review of the facts is required insofar as they bear upon the defendants' contention that the case was not properly brought as a class or representative suit. The three named defendants answered the complaint "on behalf of themselves only and not on behalf of any or all other members of International Brotherhood * * *." No other answer was filed purporting to present the case of the International. The three named defendants did, however, by cross-examination, adduce evidence in opposition to the plaintiffs' claims and in apparent support of the position of the International.
In view of the authorities which we have cited, the direct assertion that the named defendants did not appear in behalf of the members of the International raises some question as to whether we can assume that the members of the International have been duly represented. This difficulty would not have arisen if the *512 decisions of this court had followed the rule laid down in United Mine Workers v. Coronado Coal Co., 259 US 344, 66 L ed 975, wherein Chief Justice Taft, for a unanimous court, held that under the federal practice, unincorporated labor unions are suable as such. Under such a rule the right and duty to defend for the union would clearly rest in the governing body of the union. This court has not as yet adopted the rule of the Coronado case, and despite doubts, we shall treat the answer of the named defendants as an answer made on behalf of the International.
Thirty-one persons filed a "Petition on Behalf of Defendants" which stated "That we and each of us insofar as we are concerned have no objection to the transfer of Local 401 from Vancouver, Washington, to Roseburg, Oregon." Forty-four persons, members of Local 401, filed a "Petition on Behalf of Plaintiffs." They allege:
Eighty-five persons joined in filing "Petitions for Leave to Intervene and to Dismiss Complaint". They, as members of Local 401 allege in part:
*514 There is much duplication of names in the various petitions. At the trial the court ruled that these various and unique instruments were petitions in intervention and authorized the plaintiffs to answer them. Both parties have treated them as such petitions. The plaintiffs filed a general denial to the allegations in the several petitions. No answer or reply to the petition in intervention was filed by the named defendants. The petitions were also received in evidence as exhibits.
The evidence establishes that during the war period when the Kaiser Vancouver shipyard was operating, Local 401 had a membership of more than 15,000 and had accumulated more than $300,000 as of August 1950. After the closing of the shipyard, there being no work, the membership fell to 133. Of the total of 133, 95 appear on one or more of the petitions. Only 96 members live within approximately 100 miles of Vancouver. The rest are scattered over 10 states of the union and only two of them have been "contacted" in this case. There is convincing evidence in support of the allegations of the 85 intervenors to the effect that the suit was filed at the instigation of members of Local 72 of Portland in support of the efforts of that organization to maintain jurisdiction over 11 counties in Oregon which had been placed under the jurisdiction of Local 401 when the last-named Local was transferred from Vancouver to Roseburg, Oregon. The president of Local 72 testified: "we wanted the local [401] to come back here, along with the money". He testified further that a committee of three was appointed to make contact with members of 401.
We find no evidence of the filing on behalf of the members of Local 401 of any protest against the manner in which the Local had been managed during its entire history and no protest or appeal was ever made *515 on behalf of members of Local 401 on account of the transfer of union headquarters to Roseburg or the change of its territorial jurisdiction, until after the efforts of Local 72 to persuade the named plaintiffs to bring this suit for the alleged and purported benefit of members of Local 401. The plaintiff Lonsford testified that the three named plaintiffs were the only ones who had taken an interest in furthering the lawsuit. He continued:
He further testified concerning a conversation had with one of the members of the committee which was acting for Local 72. We quote: "So I asked them if they knew a good lawyer and they said sure." Plaintiff testified that he had paid $50 toward costs of the suit but had not agreed to pay attorney's fees. At another point he testified as follows:
The vital interest of Local 72 in this controversy is established beyond question. That organization sent a delegation to the International conference asking that the shipyard be returned to Local 72. The president of Local 72 testified that several times they had tried to consolidate Locals 72 and 401. The evidence also shows that members of Local 401 were notified that they might transfer to Local 72 or might remain in 401 after its removal to Roseburg. Sixty-five members elected to transfer to Local 72. We quote from plaintiffs' brief:
The 65 did not become members of Local 72 because that organization refused to accept their transfer cards, and chose rather to attempt to secure their objectives by inducing members of Local 401 to institute this litigation.
We are convinced that Local 72 is the moving spirit in this case which represents one more chapter in the long history of litigation in which they have been involved. No one appears in this case for and on behalf of Local 72, but their activity raises serious questions as to whether the named plaintiffs herein are in reality representing the best interests of Local 401 or those of Local 72.
*517 3. What the plaintiffs are attempting to do is to force the intervenors to litigate questions which the latter have emphatically stated they do not wish to litigate. Plaintiffs then fall back on the proposition that they still represent the 35 union members of Local 401 whose position and whose interests are wholly unknown. The distinction between stockholders suits and suits by a few members for and on behalf of an unincorporated association, is pointed out in Roberts v. Kennedy, 13 Del Chanc 133, 116 A 253. The plaintiffs are not required to allege or prove that they have requested the union to prosecute this proceeding as a condition precedent to the bringing of this representative suit. The rule applied in stockholders suits does not apply to class or representative suits. There is, nevertheless, a significant analogy between the two types of suit. The right of a stockholder to bring suit is not absolute, but is qualified, as indicated by the following authorities:
*518 To the same effect is Goodwin v. Castleton, 19 Wash2d 748, 762, 144 P2d 725, 732:
The effect of the rule is that in the case where the corporation refuses to sue to enforce a right, a stockholder may institute the action, but only where it can be shown that those responsible for the management of the corporation have been guilty of fraud, bad faith, or an abuse of discretion in refusing to institute proceedings. The good sense of the rule with respect to incorporated organizations can be readily seen, for the management of the corporation should not be unduly interfered with by stockholders who differ as to business policies in those matters which are discretionary with the directors of the corporation.
4. In representative suits such as this, and in stockholders suits, the plaintiff is seeking a remedy which benefits the members of the unincorporated association as a whole, on the one hand, and the stockholders as a whole, on the other. The court will not permit stockholders to take unto themselves the enforcement of *519 rights which normally belong to a corporation except where there is bad faith, fraud, abuse of discretion or the like, on the part of the directors. On similar principles in a representative suit the court will examine pleadings and evidence to determine whether it is appropriate that a few should act for and bind all. Our conclusion is that the trial court was well within its powers and that it exercised a sound judgment in holding that the proceedings should not be entertained as a class or representative suit. In basing our decision on this point, we do not mean to express any opinion adverse to the finding of the trial court upon the merits, or adverse to the contention of the defendants that the plaintiffs should have exerted their remedies within the organization before bringing this suit. Way v. Patton, 195 Or 36, 241 P2d 895. Upon the merits, a major issue relates to the legal power of the International to "amend" the charter of Local 401 in respect to jurisdiction. This is a clear question of law under the constitution of the International. That constitution provides:
There is substantial evidence in the record indicating a practical construction of the constitutional provision authorizing such changes in jurisdiction under the power to amend.
*520 5. Plaintiffs allege in the complaint that the defendants are "attempting to expel from membership certain members without just cause." Specifically they refer to the refusal to accept monthly dues from Elmer Lonsford. This suit was brought as a purported representative proceeding. The other members of the Local are not concerned with the alleged "attempt", whatever that means, and the suit having failed as a class or representative one, we deem it unnecessary to inquire concerning the alleged grievance of the plaintiff Lonsford individually. The appellate procedure of the International is available to him if he desires to press his claim.
The decree is affirmed. Neither party shall recover costs. | 50eb5e73d25e708c676afbc9be3e2c4eca2c5ac90e10d4288bdeaf17b4f67481 | 1954-02-24T00:00:00Z |
edea729e-28df-4cdd-a78b-0fc230381072 | Merritt v. SIAC | 235 Or. 121, 384 P.2d 140 | null | oregon | Oregon Supreme Court | Affirmed July 24, 1963.
Earl M. Preston, Assistant Attorney General, Eugene, argued the cause for appellant. With him on the briefs were Robert Y. Thornton, Attorney General, and Ray H. Lafky, Assistant Attorney General, Salem.
*122 Philip A. Levin, Portland, argued the cause for respondent. With him on the brief were Pozzi, Levin & Wilson, Portland, and Yates and Murphy, and Spencer Yates, Roseburg.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, DENECKE and LUSK, Justices.
AFFIRMED.
McALLISTER, C.J.
The plaintiff, Robert E. Merritt, sustained an injury to his heart while working as a logger, and was awarded compensation by the defendant, State Industrial Accident Commission, for permanent partial disability. Plaintiff appealed the commission's award to the circuit court, where a jury found that plaintiff was entitled to an award for permanent total disability. From the judgment based on said verdict the commission has appealed to this court.
1. Defendant made no motion for a directed verdict in the trial court, but attempts in this court to challenge for the first time the sufficiency of the evidence to support the verdict by alleging as error the denial of its motion for a judgment notwithstanding the verdict. Since ORS 18.140[1] makes a motion for a directed verdict a prerequisite to a motion for judgment notwithstanding the verdict based on insufficiency of the evidence, this assignment of error is devoid of merit.
*123 We also point out that if a motion for a directed verdict had been made in the trial court, our rules require that "* * * error should not be assigned to denial of the motion for judgment notwithstanding the verdict, but to denial of the motion for directed verdict, * * *." Rule 19, Appendix B, Illustration 3.
2. Defendant also assigns as error the failure of the court to give the jury a requested instruction defining permanent partial disability. Since by stipulation of the parties the only issue submitted to the jury was whether plaintiff was permanently and totally disabled, the requested instruction was irrelevant and the court did not err in refusing to give it.
Finding no merit in the appeal, the judgment is affirmed.
[1] ORS 18.140. "(1) When it appears from the pleadings that the court has not jurisdiction of the subject of the action or the person of the defendant, or that the facts stated in the pleadings of the plaintiff or defendant, as the case may be, do not constitute a cause of action or defense thereto, or when a motion for a directed verdict which should have been granted has been refused and a verdict is rendered against the applicant, the court may, on motion, render a judgment notwithstanding the verdict, or set aside any judgment which may have been entered and render another judgment, as the case may require." | 4057318834214decb3e3172e37f8045a8ea477000441b9e139c86402df9b3cb3 | 1963-07-24T00:00:00Z |
e204e72b-2c9b-4f59-8fd7-16b6dd4d8229 | State v. Parker | 235 Or. 366, 384 P.2d 986 | null | oregon | Oregon Supreme Court | Affirmed September 5, 1963.
Petition for rehearing denied October 8, 1963.
*367 Douglas J. White, Jr., and William J. Sundstrom, Portland, argued the cause and filed a brief for appellant.
Oscar D. Howlett, Deputy District Attorney for Multnomah County, argued the cause for respondent. On the brief was George Van Hoomissen, District Attorney for Multnomah County.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
O'CONNELL, J.
Defendant appeals from a judgment of conviction for the crime of murder in the second degree. This is defendant's second appeal. In State v. Parker, 225 Or 88, 356 P2d 88 (1960) we reversed a judgment of conviction *368 for second degree murder because of error in admitting hearsay testimony.
Two of defendant's assignments of error require comment. These are (1) that the state failed to establish venue in Multnomah county where defendant was tried,[1] and (2) that the misconduct of state's counsel during his final argument to the jury deprived defendant of a fair trial.
Defendant was charged with killing Robert Holloway. Holloway's body was found in a well in Columbia county. Other facts are set out in detail in our former opinion. Defendant contends that there is no evidence of any acts committed by defendant in Multnomah county requisite to the consummation of the crime with which he was charged.[2]
There is no evidence tending to show in which county the fatal blow was struck or where Holloway died. However, there was evidence that defendant purchased whisky in Portland and that it was used by defendant to lure Holloway into an automobile in Portland for a trip from which he never returned. Violet Bostwick, a witness for the prosecution, testified as follows:
The question presented is whether the described conduct is within the language of ORS 131.340, "acts or effects thereof constituting or requisite to the consummation of the crime."[3]
Similar statutes in other states have been variously interpreted.[4] In some jurisdictions it is held that if the act committed in one county does not constitute an element of the crime charged, that county does not have venue.[5] On the other hand, it has been held that the act in the county in which defendant is tried need not be an essential element of the crime.[6]
*370 1. In the present case defendant's acts in Multnomah county as described by witness Bostwick were not essential elements of the crime of second degree murder. But it is not necessary to determine whether ORS 131.340 is to be construed broadly as in People v. Megladdery, 40 Cal App2d 748, 106 P2d 84 (1940), or narrowly as in State v. Rider, 46 Kan 332, 26 P 745 (1891). There is another basis upon which venue in Multnomah county may be sustained. Defendant was indicted for the crime of first degree murder. An element of that crime is "deliberate and premeditated malice." ORS 163.010. If defendant had been tried upon the crime charged in the indictment, the evidence of defendant's conduct in enticing Holloway into the automobile in Portland would have been sufficient to establish premeditation. Thus, if in the original trial there had been a verdict of guilty of the crime of first degree murder, venue in Multnomah county would have been made out. However, the jury in the first trial returned a verdict of the lesser included crime of second degree murder. To say that venue was lost as a result of this fortuitous circumstance would attach a significance to the requirement of venue far beyond its purpose.
2. The retrial of the cause may be viewed in the same light. The reversal of the judgment and remand for a new trial in the first appeal operated to revest jurisdiction and venue in the Multnomah county circuit court, the original indictment continuing to serve as the basis for the charge, subject to the rule that the *371 defendant cannot be tried for a crime greater than that for which he has been convicted in the first trial. We hold that venue was properly laid in Multnomah county.
We now turn to the second of the assignments of error noted above. Defendant contends that error was committed when the state elicited from William Dana a statement that he had sold quick lime to someone on October 28, 1957, the day after the alleged murder. The evidence established that decedent's body was found in a well which contained lime. Violet Bostwick testified that defendant had "mentioned something about some lime, and he said that they had I asked him what they used the lime for, and he said, `To get rid of identification.' He said that he had, he had bought, he had been thinking about buying the lime at some small place and then he thought better about it and bought it at a large concern where there was more sales or more people coming and going and he figured it wouldn't have been noticed so much."
Later the state called William Dana, an employee of Masons Supply Company, who testified that he had sold a small quantity of quick lime to someone on October 28, 1957. He stated that "It is very irregular to just sell four sacks of hot lime to a cash customer such as this was" because "it has a limited use." He explained that hot lime "has to be slaked or hydrated, which means combining it with water, before it can be used, and very few people use it for buy it before it has been slaked. Slaked lime is sold, as such, and you don't have to go through the process of boiling it out with water. That is why it is called `hot lime'. It boils when you combine it with water." Dana stated that he could not remember having sold anything to defendant but that he had seen defendant in the Masons Supply *372 Company store on some occasion. It was established that Masons Supply Company was one of the largest building supply companies in the city.
On motion of the defense, Dana's testimony was stricken from the record on the ground that the testimony of the witness had not been connected in any way to the defendant. The jury was instructed not to consider the stricken testimony in their deliberations.
Dana's testimony was relevant and it would not have been error to submit it to the jury. The jury was entitled to believe Violet Bostwick's testimony that defendant bought hot lime at a "large concern." The Masons Supply Company was a "large concern." Small quantities of quick lime are not usually sold. A small quantity of quick lime was used upon the decedent's body. Defendant had been seen in the Masons Supply Company store at some time. From this evidence it would not be unreasonable for the jury to infer that defendant had purchased the lime sold by Dana.
It is alleged that counsel for the state was guilty of misconduct during his argument to the jury in making reference to a tape recording which the court had ruled inadmissible. The state had sought to introduce a tape recording of a conversation between Lieutenant Nelder of the San Francisco Police Department and Violet Bostwick. Defense counsel objected to the introduction and playing of the recording on the ground that it was not properly authenticated. The objection was overruled but the court refused to admit the exhibit for the reason which appears in the following colloquy.
*374 After both sides had rested and when counsel and the trial judge were in chambers defendant's counsel asked counsel for the state if he intended "to make an issue out of the tape recording to the extent that it has been placed in our hands, or, are you willing to accept the fact that we have not heard it or have not played it?" At first the reply was, "The only issue that I could make out of this, is to I can't tell the jury defense counsel wouldn't play it. That is improper. The only thing I could do is take what is in the record, and that is that a tape recording was taken of her conversation by Lt. Nelder. I can't refer you I can't even begin to refer to the fact that we didn't put it in." At the time the latter statement was made counsel for the state was not aware of the fact that defense counsel had stated in the presence of the jury that he had not played the recording. After learning that the jury was so informed, state's counsel said: "Well, if you said it in the record, I will probably refer to it in closing arguments." In his argument to the jury he made the following reference to it:
To understand the purpose of this statement it is necessary to recount the events which occurred after defendant's first trial. Violet Bostwick had testified in the first trial. She had also testified in the companion case of State v. Harold Keith. Her testimony was damaging to Keith. Later she stated that she had lied in giving this testimony. She signed an affidavit stating that she had been threatened by the police and by the deputy district attorney. Her affidavit recited that San Francisco police officers told her that if she didn't testify as instructed by the Multnomah county district attorney she would be charged with the crime of accessory after the fact. The affidavit further recited that deputy district attorney Howlett told her that if she changed her testimony he would prosecute her for perjury and put her in the penitentiary for life.
3. The statement in the final argument quoted above that "We played the recording, and that was too bad for Harold Keith because the recording was very telltale," referred to the use of the recording in Keith's trial. The vice in making this latter statement was that it would suggest to the jury that if the recording was bad for Keith it was also bad for defendant who was Keith's alleged accomplice. The comment should not have been made. But the question is whether the statement is so prejudicial as to warrant reversal. It should be noted that the jury was denied the opportunity to hear the recording for the reason that it was cumulative evidence. The court's explanation for excluding it as cumulative was made in the presence of the jury. If the jury understood the term "cumulative", it understood that the recording covered the same evidence as that which Violet Bostwick had given on the stand and *376 the statements in the recording would be no more "telltale" than similar statements made on the stand. This part of the state's argument does not constitute reversible error.
4. The remaining part of the statement set out above is a permissible jury argument. The state's case rested on the credibility of Violet Bostwick. She had testified against defendant in the first trial; she then repudiated that testimony; and finally she repudiated her repudiation. This being known to the jury, her credibility was in grave doubt. If the statement (recorded without her knowledge) was, in essence, the same as her testimony in the present case, it would tend to support her credibility as a witness. The fact that defense counsel did not attempt to show inconsistency between the two statements is ground for the inference that the defense could not find any inconsistency in the two statements. Under these circumstances it seems reasonable to let the state comment on the failure of the defense to attempt impeachment through the use of the recording.
Finally, objection is made to the conduct of the deputy district attorney in interjecting his own personal views with respect to the credibility of the state's witnesses. At one point in his argument to the jury that state's counsel said, "In this particular case this Bostwick girl was telling the truth. We wouldn't have her if she wasn't. It is impossible for her to have been lying. It is impossible for her to have told that story." Defendant contends that the foregoing statements were "an attempt by the deputy district attorney to bolster this key witness by his own unsworn testimony as to her credibility for truth and veracity." Later, counsel for the state said:
Similar comments were made by the prosecutor to the effect that the state's witnesses were telling the truth, that the state vouched for the credibility of its witnesses, and that the jury should believe the state's witnesses.[7]
5, 6. It is improper for counsel to interject his personal appraisal of the witnesses' credibility in a way which would suggest to the jury that the appraisal is based upon counsel's own knowledge of facts not introduced into evidence.[8] It is not contended that the statement in the present case was objectionable upon this ground. The rule is sometimes stated more broadly, making improper any comment by counsel upon the *378 credibility of his witnesses.[9] It is unnecessary for us to decide how narrowly or broadly the rule should be stated because we are of the opinion that under either rule the remarks of the prosecution in the present case are not ground for reversal. Moreover, no objection was made at the time the comment was made and no request was made that the jury be instructed to disregard it.[10]
There is no reversible error. The judgment of conviction is affirmed.
GOODWIN, J., specially concurring.
While I agree with the majority that the judgment should be affirmed, I do not concur in the dictum to the effect that the testimony of the witness Dana properly could have gone to the jury. The jury was told to disregard the questioned testimony. It is not necessary to a disposition of the pending matter to explore the question of its admissibility vel non.
DENECKE, J., joins in this opinion.
PERRY, J., dissenting.
I concur in the conclusion of the majority that venue having been properly laid in Multnomah County in the *379 first trial of defendant, that court continues to have jurisdiction of the cause on remand until a final judgment is entered. I disagree, however, with the court's dictum to the effect that it is not necessary to determine "whether ORS 131.340 is to be construed broadly as in People v. Megladdery, 40 Cal App2d 748, 106 P2d 84 (1940), or narrowly as in State v. Rider, 46 Kan 332, 26 P 745 (1891)." Such a statement is misleading, for the rule in People v. Megladdery, 40 Cal App2d 748, 106 P2d 84, can have no application in this state by reason of the requirements of the Oregon Constitution.
Article I, Section 11 of the Oregon Constitution provides:
The legislature in enacting ORS 131.340 could not ignore this requirement of the Constitution, therefore the language "acts or effects thereof constituting or requisite to the consummation of the crime" refers to facts which disclose some element of the crime charged. People v. Thorn et al, 21 Misc 130, 47 NYS 46; People v. Lee, 334 Mich 217, 54 NW2d 305; 22 CJS 479, Criminal Law, § 185 (17).
As is demonstrated by the opinions of their courts, California has no constitutional requirement that the defendant shall have the right to be tried in the county where the crime was committed.
State v. Megladdery, supra, cites and relies upon People v. Richardson, 138 Cal App 404, 32 P2d 433. In People v. Richardson Justice Spence carefully pointed out that the constitution of that state provides, "The right of trial by jury shall be secured to all, and remain *380 inviolate," (32 P2d 433, 434) and reasoned that since venue was not fixed by the constitution, that power in all cases rested with the legislature. In that particular case a felon had escaped from prison. The legislature had provided "The jurisdiction of a criminal action for escaping from prison is in any county of the state." Section 787, Cal Penal Code; 32 P2d 433, 434. The court held the defendant was not denied any of his rights by not being tried in the county where he escaped.
I must however, dissent from the conclusion of the majority that the defendant was accorded a fair trial. It seems clear to me that the majority are in error when they state "Dana's testimony was relevant and it would not have been error to submit it to the jury."
The majority, in my opinion, in making this statement, fail to understand the issue presented. The question is not that the jury could not infer from the fact that lime was found in the well and that Violet Bostwick had testified the defendant procured lime, that the defendant purchased or obtained lime somewhere, if they first found he committed the crime. The question is whether or not, from the evidence of Dana, the jury could infer that the defendant made this particular purchase at or about the time of deceased's disappearance, and was thus connected with the commission of the crime. In other words, there is no identification of this defendant as the purchaser of this particular lime to establish his guilt by showing a guilty mind. To show his guilt by establishing this act after the crime had been committed would be the only proper purpose of such evidence.
It is the rule of law that before evidence of a particular fact is relevant there must be evidence identifying the party sought to be charged with the doing of *381 the particular act from which an inference may be drawn. There is not the slightest evidence in this case that this defendant ever purchased four sacks of lime at any time from the Masons Supply Company. All of the evidence merely raises a suspicion that perhaps this particular sale was made to the defendant.
In this posture we have the same situation as that of a witness testifying to finding a defective motor in defendant's shop after plaintiff was injured and there is no evidence that this was the same motor that injured the plaintiff, (Owen v. Alabama Great Southern R. Co., 181 Ala 552, 61 So 924); or, the testimony of a witness as to the distance of skidmarks at the scene of an accident, without evidence that the skidmarks were made by defendant's vehicle, (Schwam v. Reece et al., 213 Ark 431, 210 SW2d 903); or, the testimony of a witness that he smelled liquor on a bus, for the purpose of showing that defendant driver of the bus had been drinking liquor, when there was no evidence that the odor emanated from the bus driver, (Conley v. Jennings, 296 Ky 652, 178 SW2d 185); or, testimony that a mark on an automobile looking like a hand impression, without evidence that it appeared to be the impression of one of the hands of the injured pedestrian, (Hyman v. Bierman, 130 NJL 170, 31 A2d 762); or, where a party suing for the price paid for corporation stock testified that he was advised to purchase the stock by a fortune teller, and there was no showing of any connection between the fortune teller and the defendant, (Johnson v. Domer, 76 Wash 677, 136 P 1169).
In each of the above cases the evidence would have been relevant if there had been substantial evidence which identified the fact sought to be established with the actions of the defendant, but since it could not, it *382 would at most only cast suspicion, and lead to a verdict based upon speculation and conjecture, not fact. This is the established rule in Oregon applicable to criminal cases, and when such evidence is admitted over objection, error is committed which may require a reversal of the judgment. State v. Fong, 211 Or 1, 314 P2d 243; State v. Sing, 114 Or 267, 229 P 921; State v. Bailey, 90 Or 627, 178 P 201.
In this case, for a jury to reach a conclusion as to the guilt of the defendant, they had to rely almost entirely upon the testimony of Violet Bostwick, who had been convicted of the crime of false swearing. She had testified, among other things, that defendant told her he had purchased quicklime at a big store (whether in Portland, or where, is not stated) for the purpose of destroying identification of the body.
When Mr. Dana was called as a witness for the state, he testified as follows:
On cross-examination, the witness testified as follows:
The above testimony discloses only that a sale of lime was made to some person by one of the large concerns in a city of more than 350,000 population, and though the defendant was known to the salesman, there is no identification of the defendant as the purchaser, or even of the defendant's presence in the place of business at or about the date of the sale. Also, the state was apprised of these facts long before the case was called for trial. The state also knew this evidence was irrelevant, for Dana's evidence was not offered in the first trial, and, as will be noticed, the state on direct examination did not attempt to connect the defendant with this purchase. The only purpose, therefore, of its introduction, was to cast suspicion by innuendo upon the defendant, and in the same manner, seek to bolster the testimony of Violet Bostwick.
The question of whether or not an offer of improper evidence should or should not require a reversal is not one that lends itself to strict rules, but depends to a large extent on the importance of the evidence offered, and the good or bad faith of counsel. Paul v. Drown, 108 Vt 458, 189 A 144; 109 ALR 1085, and annotation, page 1089.
Certainly it is not every case where some slight prejudice may result that justice requires a reversal, but where substantial prejudice is the result of deliberate action to create that prejudice, the offending *386 party ought not to be permitted to prosper through his own wrong. This has been the consistent holding of this court where, as in a personal injury case a party has deliberately and intentionally injected insurance coverage into a trial of the cause. Rosmuny v. Marks, 118 Or 248, 246 P 723; Jones v. Sinsheimer, 107 Or 491, 214 P 375; Vasquez v. Pettit, 74 Or 496, 145 P 1066.
It would seem to me that this rule should be more strictly enforced to safeguard the liberty and life of the individual than where only personal possessions are involved. Also, the admonition of the court to disregard this testimony would not cure this error. Kraft v. Montgomery Ward & Co., Inc., 220 Or 230, 234, 315 P2d 559, 348 P2d 239; Bratt v. Smith et al., 180 Or 50, 175 P2d 444; Guedon v. Rooney, 160 Or 621, 644, 87 P2d 209.
In Mooney v. Holohan, 294 US 103, 79 L Ed 791, the Supreme Court of the United States, in considering a petition for an original writ of habeas corpus wherein the petitioner urged that the state knowingly used perjured testimony, and knowingly suppressed evidence to impeach that testimony, held that such action was a denial of due process. In commenting thereon the court said:
In Wilde v. Wyoming, 362 US 607, 4 L Ed2d 985, the Supreme Court of the United States held that where the prosecutor wilfully suppressed testimony favorable to the defendant, there was a denial of due process.
And again, in Alcorta v. Texas, 355 US 28, 2 L Ed2d 9, Alcorta was charged with the murder of his wife. He did not deny the homicide, but relied upon the defense under a Texas statute that the killing was done in "sudden passion arising from adequate cause. * * *" The court said:
In the present case, neither in oral argument nor in the briefs does the state contend that it did not know, but honestly believed, that evidence would be offered to connect the sale of the lime to the defendant. I am able to discover no difference in principle between deliberately using incompetent damaging evidence in the hope of obtaining a conviction, and deliberately withholding evidence favorable to a defendant. Each type of action denies a defendant a fair trial.
While it is the duty of all prosecuting attorneys to prosecute those accused of violating the laws of this state with vigor, their duties do not transcend the requirement of the law that the guilt of a party shall be established after a fair and impartial trial conducted according to the rules prescribed for that purpose.
Honesty and fairness will not permit the courts to sanction improper conduct by sustaining verdicts obtained in deliberate violation of rules of law promulgated and established for the purpose of providing that convictions shall be had upon competent evidence and not "innuendo and pettifoggery." State v. Rollo, 221 Or 428, 438, 351 P2d 422.
There is also in this case such conduct of the prosecution *391 that this judgment should not be permitted to stand.
The state called Violet Bostwick to testify that in the course of a trip with the defendant from Portland to San Francisco the defendant told her the rope he was carrying in the car had been used by him to lower one Harold Keith into the well to retrieve the body of Holloway for better concealment. She also testified that defendant told her he had purchased two fifths of liquor in Portland and that the deceased had gotten into a car because deceased would go anyplace for liquor, and further, he had purchased quicklime to destroy identification of the body. This witness had also testified to these facts in the prior trial, and subsequent thereto made affidavit to the effect that her testimony given in the trial was false. Later this witness was indicted for false swearing. This indictment was based on the affidavit that she had sworn falsely in the first trial of the defendant. She pleaded guilty to this charge. These facts were all brought to the attention of the jury in this case. The question of the veracity of this witness was clearly a pivotal issue in this case. The Deputy District Attorney, in his closing arguments, stated:
And moments later continued:
Again, the state prosecutor said:
Also, after the trial court had ruled that a certain tape recording taken by a San Francisco officer of his conversation with Violet Bostwick was inadmissible in evidence, the Deputy District Attorney, after stating to the court and defense counsel in chambers:
in argument, for the purpose of bolstering the testimony of Violet Bostwick, made the following statement:
The defendant contends that the above statements of the prosecuting attorney, though not objected to, *393 were so erroneous and prejudicial that the defendant was denied a fair trial.
Rule 15 of the Canons of Professional Ethics of the American Bar Association states, "It is improper for a lawyer to assert in argument his personal belief in his client's innocence or in the justice of his cause." It is also highly improper to attempt to bolster the testimony of a witness by personally vouching for the witness' veracity. East v. Commonwealth, 249 Ky 46, 60 SW2d 137; Fitzgerald v. State, 91 Okla Cr 437, 219 P2d 1024; Hall v. State, 115 Tex Cr 548, 27 SW2d 187; People v. Nichols, 159 Mich 355, 124 NW 25.
With reference to the statement of the prosecuting attorney last set out, it is quite clear that the prosecuting attorney went beyond the evidence in the record. The record in this case discloses that a tape recording was made of an interview between San Francisco police officers and Violet Bostwick this unknown to Violet Bostwick. The recording itself, though offered by the state, was not received in evidence, therefore its contents were not for the consideration of the jury. In spite of this, however, the tenor of the prosecutor's argument is that he has heard the recording; that it was the fault of defendant that they were not permitted to hear it; and if they were permitted to hear this recording, they would know that Bostwick's testimony concerning the defendant was true.
Early this court laid down the rule that it was reversible error for counsel to state facts pertinent to the issues not in evidence. Tenny v. Mulvaney, 8 Or 513.
In Huber v. Miller, 41 Or 103, 68 P 400, 54 Cent L Jour 429, Mr. Justice WOLVERTON stated the rule thusly:
As admitted by the defendant, no objections were made to these statements of the prosecuting attorney. It is a rule of law that only error legally excepted to will be reviewed and considered by this court on appeal. This court does, however, reserve the right in proper cases to take notice of errors of law apparent on the face of the record, though no objection was made in the trial court. State of Oregon v. Nodine, 198 Or 679, 259 P2d 1056.
A proper case exists whenever it appears that the errors committed have prevented a defendant from having a fair trial as contemplated by law. State v. Bouse, 199 Or 676, 264 P2d 800; State of Oregon v. Moore, 194 Or 232, 241 P2d 455; State v. Pace, 187 Or 498, 212 P2d 755.
The remarks of the prosecuting attorney were clearly erroneous and prejudicial, and this together *395 with the deliberate introduction of irrelevant evidence, leaves no doubt in my mind that the defendant was not accorded a fair trial. I therefore dissent.
Mr. Justice ROSSMAN joins in this dissent.
SLOAN, J., specially concurring.
The real problem to be resolved in this case is to decide if defendant was prejudiced by the conduct of the prosecutor. The trial judge who observed the conduct did not think so when he ruled on a motion for new trial. The ruling of the trial judge provides additional persuasion to me to affirm the judgment.
[1] Art. I, § 11, Oregon Constitution provides as follows:
"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed * * *."
[2] ORS 131.340 provides:
"When a crime is committed partly in one county and partly in another or when the acts or effects thereof constituting or requisite to the consummation of the crime occur in two or more counties, an action therefor may be commenced and tried in any of such counties."
[3] See note 2 supra.
[4] See cases collected in Annotation: Construction and effect of statutes providing for venue of criminal case in either county, where crime is committed partly in one county and partly in another, 30 ALR2d 1265 (1953).
[5] See for example, State v. Rider, 46 Kan 332, 26 P 745 (1891).
[6] Thus in People v. Megladdery, 40 Cal App2d 748, 106 P2d 84, 98 (1940) the court explained:
"The interpretation contended for by respondent would completely disregard the phrase `or the acts or effects thereof constituting or requisite to the consummation of the offense' contained in the section. Obviously, the phrase, `or requisite to the consummation of the offense,' means requisite to the completion of the offense to the achievement of the unlawful purpose to the ends of the unlawful enterprise. By the use of the word `consummation' the legislature drew a distinction between an act or an effect thereof which is essential to the commission of an offense, and an act or effect thereof which, although unessential to the commission of the offense, is requisite to the completion of the offense that is, to the achievement of the unlawful purpose of the person committing the offense."
[7] The following excerpts from the state's argument to the jury are pointed to by defendant as objectionable:
"Now, three people testified to that including our police officer, and I am willing to stand on all righteousness and say that Officer Ragsdale didn't come up here and repeat that statement if he didn't hear it from Mr. Parker himself, and he made a police report at the time. Police reports are not admissible."
"The State is not permitted to and has no right to permit or to call any witness to that witness stand that it cannot vouch for that witness' credibility to you one hundred per cent."
"* * * to determine who is telling the truth I think, and I ask you, and I have no hesitation in asking you to believe that witness Nora Keith absolutely, implicitly. She is so afraid of hell and fire and damnation that she is afraid to spit for fear she will say the wrong thing. She was an honest, completely honest witness."
[8] See cases collected in Annotation: Propriety, and prejudicial effect of, comments by counsel vouching for credibility of witness, 81 ALR2d 1240 (1962).
[9] For example, see Code of Trial Conduct, § 20 (h), American College of Trial Lawyers (1963):
"A lawyer should not assert in argument his personal belief in the integrity of his client or of his witnesses or in the justice of his cause which is unrelated to a fair analysis of the evidence touching these matters."
Cf., Canons of Professional Ethics, American Bar Association Canon 15, which reads in part as follows:
"It is improper for a lawyer to assert in argument his personal belief in his client's innocence or in the justice of his cause."
[10] United States v. Klein, 187 F2d 873, cert. denied, 341 US 952, 71 S Ct 1021, 95 L Ed 1374 (1951); People v. Warren, 175 Cal App2d 233, 346 P2d 64 (1959); State v. Palmer, 206 Minn 185, 288 NW 160 (1939); State v. Braathen, 77 ND 309, 43 NW2d 202 (1950). | b8252170bc316fc01cc3ec3c32261534172b6b120e6e3bb3d28006f1ed380f79 | 1963-09-05T00:00:00Z |
9776da89-aff1-48c6-bdbb-227ff86d9a99 | State v. Marshall | 234 Or. 183, 380 P.2d 799 | null | oregon | Oregon Supreme Court | 234 Or. 183 (1963)
380 P.2d 799
STATE OF OREGON
v.
MARSHALL
Supreme Court of Oregon.
Submitted March 18, 1963.
Affirmed April 17, 1963.
Beesley and Murray, Klamath Falls, for appellant.
Dale T. Crabtree, District Attorney, Klamath Falls, and J.R. Thomas and Sam A. McKeen, Klamath Falls, for respondent.
AFFIRMED.
O'CONNELL, J.
Defendant appeals from a judgment of conviction *184 after having been found guilty of the crime defined in ORS 166.270 which makes unlawful the possession of a firearm by a convicted felon.
Defendant contends that the trial court erred in admitting into evidence over his objection the gun which was revealed to be in his possession through a search made by officer John Kennard of the Klamath Falls Police Department. The ground for this objection, and a previous motion to suppress the evidence, is that the search was in violation of Article I, § 9, Oregon Constitution, which proscribes unreasonable search and seizure.
There is a conflict of testimony as to the circumstances under which the search was made. Defendant and two companions were in a tavern in Klamath Falls when he was approached by the police officer. According to the officer's version of the search he asked the group if any of them was carrying a gun and defendant replied, "No. If you don't believe me, search me," or similar language. Defendant testified that the police officer said, "I heard you have a gun," to which defendant replied, "No, I haven't." Defendant denies that he invited the officer to search him. He is supported in this by Miss Marjorie Lopez, who was one of his companions. The police officer had no warrant of arrest and did not purport to arrest defendant.
1. The state has the burden of establishing that defendant waived his constitutional protection from unreasonable search. It is defendant's position that the state did not produce sufficient evidence to meet this burden. He argues that consent to the search must be proved beyond a reasonable doubt. The state's burden is not that great. Proof of waiver of the constitutional protection from unreasonable search and *185 seizure need only be by clear and convincing evidence.[1] If officer Kennard's testimony is accepted as true, the evidence of consent would be clear and convincing.
The cases relied upon by defendant are distinguishable. In some the defendant's language, relied upon as evidence of consent, is equivocal. In others there is evidence that the consent was given as a result of force, intimidation, deception, or some other factor negativing real assent to the search.[2]
2. The trial court in passing upon the motion to suppress, and the jury in passing upon defendant's guilt, were entitled to believe officer Kennard and disbelieve defendant. If they did, the evidence would establish the giving of consent in unequivocal language and without coercion or other conduct negativing real assent to the search.
The judgment is affirmed.
[1] E.g., Judd v. United States, 190 F2d 649 (D.C. Cir 1951); Nueslein v. District of Columbia, 115 F2d 690 (D.C. Cir 1940); Ray v. United States, 84 F2d 654 (5th Cir 1936); United States v. De Vivo, 190 F Supp 483 (E.D.N.Y. 1961); United States v. Reckis, 119 F Supp 687 (Mass 1954); State v. McPeak, 243 N C 243, 90 SE2d 501 (1955), cert. denied 351 US 919, 76 S Ct 712, 100 L Ed 1451 (1956); Burns v. State, 282 P2d 258 (Okla Crim 1955); Hogan v. State, 94 Okla Crim 375, 236 P2d 276 (1951); Dawson v. State, 83 Okla Crim 263, 175 P2d 368 (1946). But see, Compton v. State, 148 Tex Cr App 204, 186 SW2d 74, 76 (1945) (dicta) and cases cited therein.
[2] See e.g., Higgins v. United States, 209 F2d 819 (D.C. Cir 1954) (assent given during questioning in home); Catalanotte v. United States, 208 F2d 264 (6th Cir 1953) (defendant questioned at home); Judd v. United States, 190 F2d 649 (D.C. Cir 1951) (defendant under arrest); Karwicki v. United States, 55 F2d 225 (4th Cir 1932) (consent was not specific and unequivocal enough); Helfer v. State, 84 Okla Crim 304, 181 P2d 862 (1947) (officers questioned defendant in home); Dawson v. State, 83 Okla Crim 263, 175 P2d 368 (1946) (officer's language indicated search would be made whether or not defendant assented); Mullins v. State, 75 Okla Crim 417, 133 P2d 239 (1943) (officer told defendant search would be made); Date v. State, 188 Okla 677, 112 P2d 1102 (1941) (defendant under arrest); Marple v. State, 51 Okla Crim 240, 1 P2d 836 (1931) (officers blocked road, gun in hand, and asked permission to search car). | 1e137d39db4005a684991f1bf659547eea38f926309fcd72c59d24b3826b453c | 1963-04-17T00:00:00Z |
ce7a419d-5152-4ff8-abff-02f68280d2aa | Alvarez v. Retail Credit Ass'n | 234 Or. 255, 381 P.2d 499 | null | oregon | Oregon Supreme Court | Reargued April 5, 1963.
Reversed May 15, 1963.
*257 Richard D. Nelson, Portland, argued the cause and filed a brief for appellant.
Mercedes F. Deiz, Portland, argued the cause and filed a brief for respondent.
*258 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED.
GOODWIN, J.
This is an action for damages for the wrongful institution of a civil action and the attachment of the plaintiff's wages by the defendant collection agency. From a judgment for the plaintiff, the defendant appeals.
The assignments of error all challenge the sufficiency of the evidence to support the verdict.
The facts may be outlined briefly as follows: The plaintiff, Alvarez, was notified by the defendant Retail Credit that a bill for services furnished by Portland General Electric Company had been assigned to Retail Credit for collection. Alvarez, in person, as well as by telephone, advised Retail Credit that he did not owe the bill. His version of the affair was that he was merely an employe of the small restaurant to which the electrical services were furnished. He swore he had nothing to with ordering the electrical service. Retail Credit did not accept Alvarez' explanation. There was evidence from which a jury could have found either way upon the liability of Alvarez for the electric bill, if that question had been the matter in issue. We will assume, however, for the purposes of this case, that Alvarez did not in fact owe the bill.
In the usual course of the defendant's business, Alvarez was served with a summons and complaint in the district court. Alvarez took the papers to an attorney (not his present counsel). He said he thereafter assumed that the attorney had "taken care" of the matter. According to the uncontradicted testimony, however, *259 the attorney telephoned Retail Credit and advised one of its representatives that Alvarez could not pay the entire account at one time, but would pay $5.00 every two weeks. Alvarez denied in the case at bar that the attorney was authorized to make such a statement on his behalf.
1. After the foregoing events had occurred, and when no payment on the account was forthcoming, Retail Credit proceeded to take a default judgment. In due course, execution was levied upon Alvarez' wages. The case at bar is thus taken out of the rule in Oregon that no action will lie for bringing civil litigation that is merely vexatious, in the absence of a showing of actual damage, e.g., attachment or the like. Carnation Lbr. Co. v. McKenney et al, 224 Or 541, 356 P2d 932 (1960).
Still later, upon motion by Alvarez, the default judgment was set aside, and, for reasons that do not appear of record, Retail Credit dismissed its action. All money collected from Alvarez was returned to him.
The foregoing statement, while abbreviated, sets out the material facts that had to be considered by the trial court when the evidence was tested by a motion for a directed verdict.
2. A plaintiff who seeks damages against one who wrongfully prosecutes a civil action against him must prove the following elements:
See 34 Am Jur 706, Malicious Prosecution § 6; Restatement, 3 Torts 440, § 674; Green, Judge and Jury 337 (1930); Prosser, Torts 662, § 99 (2d ed, 1955); 1 Harper and James, Torts 328, § 4.8.
When tested by the motion for a directed verdict, the plaintiff's case contained ample evidence of the first two mentioned elements of the cause of action.
On the third element, the alleged want of probable cause, Retail Credit insists that it had probable cause, as a matter of law, to believe Alvarez owed the debt when he was sued. Retail Credit relies, in support of this proposition, upon the evidence in the record which tended to show (a) that Alvarez did owe the bill, and (b) that even if he did not owe it, the circumstances reasonably justified the employes of Retail Credit in their belief that he did.
3. We need not decide whether a collection agency, before instituting an action, may rely upon a telephone call from an attorney who purports to represent a debtor, and admits liability. In the case at bar the telephone call relied upon by Retail Credit came after Alvarez had been sued and after his wages had been attached. The telephone call cannot, therefore, relate back to the filing of the action so as to conclude the issue of probable cause at the time Retail Credit set in motion the proceedings against Alvarez. Such evidence is, of course, consistent with other evidence in the case tending to prove that Retail Credit had good reason to proceed against Alvarez in the first place.
4-9. At the beginning of the case at bar, Alvarez *261 had the burden of proof upon all the essential elements of his cause of action. In putting on his evidence, he put on no direct proof that Retail Credit had acted without probable cause. But he did prove the voluntary dismissal of the original action by Retail Credit. This was not denied. With the evidence in this condition, Retail Credit's failure to make any explanation of its dismissal prompted the trial judge to submit the case to the jury. If Retail Credit had explained its voluntary dismissal of the collection action in a manner consistent with its other evidence in this case, the trial court would have been required to hold, as a matter of law, that Retail Credit had probable cause to believe that Alvarez owed the debt for which he was sued. As stated in Kuhnhausen v. Stadelman, 174 Or 290, 148 P2d 239, 149 P2d 168 (1944):
(For a discussion of the respective functions of judge and jury in actions for malicious prosecution arising out of criminal prosecutions, see Shoemaker v. Selnes *262 et al, 220 Or 573, 349 P2d 473, 87 ALR2d 170, and the Annotation beginning at 183.)
Since Retail Credit failed to explain why it dismissed its action against Alvarez, we believe no reversible error was committed in submitting the issue of probable cause to the jury. See Restatement, 3 Torts 447, § 675, Comment b. We need not decide whether the instructions upon which such issue was submitted properly informed the jury of the law to be applied. There is no assignment of error concerning the instructions, and they are not before us.
There is, however, another reason why the case must be reversed. Equal in importance to a plaintiff's proof of a want of probable cause in a case of this character is the necessity that he prove malice on the part of the defendant. At the close of the evidence, the defendant moved for a directed verdict on the ground that the plaintiff had failed to prove malice as a separate element of his case. The trial court denied the motion, but did withdraw from the consideration of the jury the plaintiff's demand for punitive damages. If punitive damages were properly withdrawn, we then have the question whether, in this state, one who litigates wrongfully can be so free of malice that punitive damages properly may be withdrawn without at the same time being so free of malice that the entire cause of action must be withdrawn.
In withdrawing punitive damages, the trial court recognized that the evidence was wholly barren of proof tending to show that the defendant in suing Alvarez had been actuated by ill will or other improper motive. See Restatement, 3 Torts 451, § 676, and 4 Torts 554, § 908. (The Restatement does not use the word malice to describe the kind of motives that make the aggravated wrong one for which punitive *263 damages may be allowed, but these differences in nomenclature need not detain us in the case at bar.) We agree with the trial court that this was not a case for punitive damages.
10-12. Punitive damages are allowable in this state when there is proof of actual ill will or improper motive in the prosecution of a criminal case. See, e.g., Gumm v. Heider, 220 Or 5, 348 P2d 455 (1960). Punitive damages may equally be allowed when civil proceedings are employed against another for improper motives. They were allowed in Brown v. Liquidators, 152 Or 215, 52 P2d 187 (1936). However, with reference to malice, there are significant differences between the prosecution of civil cases and the prosecution of criminal cases. All that should be necessary to justify a person in bringing civil litigation is a reasonable belief in facts upon which his claim is based and a reasonable belief that those facts support a claim. See Restatement, 3 Torts 446, § 675. Before setting the criminal law in motion against another, one must correctly believe that the acts complained of constitute a crime, or rely on legal advice to that effect. Restatement, 3 Torts 403, § 662.
There are a number of cases in which courts have said that one who institutes criminal proceedings against another without probable cause may be found by the jury to have done so maliciously, with all the resultant implications thereof in the assessment of damages in the various jurisdictions. See, e.g., cases collected in 34 Am Jur 760, 774, Malicious Prosecution §§ 93 and 121; and 54 CJS 1070, 1105, Malicious Prosecution §§ 90 and 114. Where there has been a criminal prosecution, without probable cause, it is indeed difficult to conceive of a state of mind in the prosecutor that would not be, in the very nature of things, malicious. *264 See 1 Harper and James, Torts 321-322, § 4.6; Prosser, Torts 665, § 99 (2d ed, 1955).
13. Brown v. Liquidators recites, more or less automatically, in a case arising out of a civil prosecution, "[t]hat the defendant was actuated by malice is an inference that can be drawn from the proof of want of probable cause." 152 Or 215, supra at 218. It is clear that the law does not presume malice from want of probable cause. If it did, there would be no need for a plaintiff to plead malice as a separate element of his cause of action. See 34 Am Jur 774, Malicious Prosecution § 121. What the courts have said, however, is that the law will permit the jury to draw an inference of malice in most cases where a want of probable cause is found.
14. The case at bar is now in this posture: We have held that the unexplained dismissal of the original action was a fact from which a jury might have inferred that the action had been commenced without probable cause. Thus, we have said there was no error in submitting the issue of probable cause to the jury. Now the plaintiff is saying that since it was permissible to infer that there was a want of probable cause, the inference of malice is also an inference the jury may draw. While, as we have noted elsewhere, a fact proved by inference can in turn be the foundation of another inference, Eitel v. Times, Inc., 221 Or 585, 599, 352 P2d 485 (1960), and the jury can, therefore, draw an inference from an inference, there is a difference between a permissible inference and mere speculation.
15. The real question, when a party seeks to employ one inference as a basis for another inference, is whether the connection between the two inferences is strong enough to support the proposed intellectual *265 exercise. If, in human experience, it is reasonable to say that when one inference is justified the second may also be justified, as it frequently may be, then there is no reason why the matter may not be submitted to the jury for that body to declare its view of the probabilities. Where, however, the evidence against pyramiding particular inferences is so strong that reasonable minds cannot draw the second inference from the first, then the court may not turn the jury loose to engage in sheer guesswork.
16. In this case, to make out a case of malicious prosecution, it was not enough for the plaintiff to establish merely a basis for an inference of want of probable cause. There must also be some independent evidence of conduct other than the voluntary dismissal, from which conduct improper motives can be inferred. In other words, where the only evidence of a want of probable cause is the inference that may be drawn from the voluntary dismissal of the original action, such an inference will not support the second inference, that the defendant acted with improper motives. There must be some other direct or circumstantial evidence to support the inference of malice.
Had there been in the case before us some evidence of wanton or reckless failure to exercise any care in learning the facts, or evidence of some oppressive and flagrant disregard for the rights of Alvarez, there might have been some justification for submitting the issue of malice to the jury. In the record before us, however, we find not only a total failure of proof of any such conduct, but uncontradicted affirmative evidence that the defendant's servants honestly, and with good reason, believed Alvarez owed the bill.
17. We noted earlier that Alvarez had denied that he owed the bill. We are not, however, aware of any *266 rule of law that a jury question on the issues of probable cause or malice is presented any time a plaintiff proves that he had contested the original claim. Litigants in civil actions to recover money would no doubt proceed with extreme caution if this court were to hold, as a matter of law, that any time a creditor proceeded with a contested claim he would do so at the peril of having some later jury say he must respond in damages for being wrong.
A plaintiff must prove not only that he was wrongfully sued by the defendant, but that the defendant in bringing the action had a motive other than that of securing an adjudication of the claim on which the action was based. While the unexplained dismissal of the action may create a jury question on the issue of probable cause, it is asking too much of the unexplained dismissal to expect it to carry the whole case. To the extent that Brown v. Liquidators may have been understood as permitting the inference of malice to rest on the inference of want of probable cause, and nothing more, it must be overruled.
18. In this state, if there is enough evidence of want of probable cause and of malice to go to the jury at all, then the element of punitive damages must remain in the case. If there is not enough independent evidence of malice to warrant punitive damages, then the trial court should withdraw the entire case, rather than the prayer for punitive damages only.
Reversed with instructions to enter judgment for the defendant.
SLOAN, J., dissenting.
The majority overlook some positive evidence which, if believed, would establish lack of probable cause. It must be remembered that this account was *267 three years old when the action against Alvarez was started. During all of that time the power company employees knew, and the company records revealed, that the power service had not been ordered by Alvarez personally, but by some one purporting to speak for him and bind him. The power company had ample opportunity to investigate the actual facts.
When this account was assigned to defendant credit association these facts were made known to the employees of defendant. Defendant made no investigation to determine if Alvarez was actually or even probably, responsible even though it had been specifically informed that Alvarez was not. On the very day that Mrs. Alvarez first received the letter from defendant which demanded that the bill be paid, Mrs. Alvarez called both the power company and defendant and denied any responsibility for or knowledge of the account. Notwithstanding this knowledge that there was definite doubt that Alvarez was liable, defendant filed its action without further inquiry.
Mrs. Alvarez testified that in her telephone conversation with the defendant's employee, above mentioned, harsh words were spoken and the employee told her that they knew where Mr. Alvarez worked and, therefore, intended to make him pay. That undisputed testimony is, itself, some evidence of malice. Particularly when the records defendant had to rely on told defendant that there was doubt that Alvarez was liable. And, the employee had just been told in an immediate response to a first demand, that Alvarez did not owe the account.
It is not at all necessary to rely on an inference to find want of probable cause. The court properly submitted this case to the jury. | 6f65a1d7eafc517da9c01fd21d0ae520f0fc5f7f6616160435e371aec4228d0b | 1963-05-15T00:00:00Z |
a5475a96-2a1d-4a3c-9666-9a062765bab4 | Parker v. Reter | 234 Or. 544, 383 P.2d 93 | null | oregon | Oregon Supreme Court | Reversed and remanded June 19, 1963.
Hugh B. Collins, Medford, argued the cause for appellant. *545 On the briefs were Collins, Redden & Mullen, Medford.
Robert H. Grant, Medford, argued the cause for respondent. On the brief were Kelly & Grant, Medford.
Before ROSSMAN, J., Presiding, and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
O'CONNELL, J.
This is an action to recover damages for injuries to plaintiff's person and property when his automobile collided with two heifers owned by defendant. Defendant appeals from a judgment for plaintiff.
Defendant was the owner of a ranch upon which he raised cattle. The ranch was in a closed range district where cattle are prohibited from running at large.[1] The cattle escaped from defendant's barn, passed through an open gate and went upon the adjoining highway. Plaintiff's automobile collided with two of the animals. At the time of the accident it was dark, the pavement was damp and there were patches of dense fog.
The trial court instructed the jury "that it is not necessary for you to consider the alleged acts of negligence charged in plaintiff's first amended complaint, as the statutory duty not to permit an animal to run at large imposes a duty on the owner of such an animal and the fact that an animal was permitted to run at large is negligence as a matter of law." Defendant took timely exception to the instruction and upon appeal assigns as error the giving of the instruction.
*546 In a written opinion which accompanied the trial court's order, the court indicated that the instruction was based upon statements made in Kendall v. Curl, 222 Or 329, 353 P2d 227 (1960) to the effect that in a livestock district where it is unlawful to permit livestock to run at large the violation of the statute constitutes negligence as a matter of law. Thus, at one point in the Kendall case it was said, "In numerous parts of the state which have been designated as livestock districts, the act or omission which permits an animal to run at large is a violation of a legal (statutory) duty and hence, if it results in harm, is negligence as a matter of law." (222 Or at p. 333). This statement was a dictum because the issue before the court was the liability of a landowner in an open range district where the owner has the right to let his livestock run at large.
The holding in the Kendall case, that an owner is not negligent in allowing livestock to be on the highway in an open range district does not, of course, force the conclusion that under the same circumstances in a closed district the owner is negligent as a matter of law.
1. The scope of the landowner's duty under ORS 607.045 must be determined by a construction of the statute. Plaintiff contends that a violation of the statute imposes absolute liability where an injury results to those using the highway. Defendant contends that the statute was intended to impose liability only for damage done as a result of livestock going upon other land and that, therefore, plaintiff was not within the class of persons intended to be protected by the legislation. It is then argued that since there is no legislation making the livestock owner liable for injury to persons using the highway the Kendall case is applicable *547 and as said in that case, "The motorist must put up with the farmer's cattle: the farmer must endure the motorist." (222 Or at p. 336)
Statutes similar to ORS 607.045 have been construed in other states to constitute a proscription against permitting livestock to run upon highways.[2] It will be noted that ORS 607.045 makes it unlawful to permit the animal "to run at large or to be herded, pastured or to go upon the land of another." Plaintiff points to the use of the disjunctive "or," contrasting the running of cattle "at large" and the running of cattle upon the land of another as evidence of a legislative intent not to confine the proscription to the latter situation.
That argument loses much of its force, however, if the term "running at large" is given the meaning ascribed to it in our previous cases. In Keeney v. O.R. & N. Co., 19 Or 291, 292, 24 P 233 (1890) it is explained that the term "stock running at large" refers to animals which "roam and feed at will, and are not under the immediate direction and control of any one." The term is not used to describe unenclosed animals *548 as distinguished from enclosed animals, for, as observed in the Keeney case, "They may be in an enclosure which may restrain the limits in which they shall wander and feed, or they may be on an unfenced range, relatively without limit, where they may roam and feed at will; but in either case they are not subject to the direction and control of any one."[3] (19 Or at pp. 292-293). But even if we construe the term "run at large" in ORS 607.045 to mean simply "unattended," the statute is still subject to the construction that the owner of livestock is subject to prosecution not only for permitting unattended animals to go upon the land of another but also for permitting them to go upon a public highway. We so construe the statute.
2. It does not follow, however, that the statute imposes absolute liability for injuries resulting from permitting animals to get upon the highway. Although there are some cases which hold that absolute liability for injury to motorists is imposed upon the owner for the violation of a statute similar to ORS 607.045, most courts construe such statutes as imposing liability only where the owner is at fault.[4] Generally this latter construction *549 is derived from the use of the word "permit" in the applicable statute. It is held that the word "permit" implies knowledge, consent or willingness on the part of the owner that the animals be at large.[5] We have adopted this mode of construction. In Lemery v. Leonard, 99 Or 670, 678, 196 P 376 (1921) the court, in construing a statute similar to ORS 607.045, said:
We hold that ORS 607.045 is not violated unless the owner is at fault in permitting livestock embraced by the proscription to run at large. We further hold that the statute is violated not only where the livestock is permitted to go upon privately owned land but *550 also where such livestock is permitted to go upon a highway.
3, 4. The instruction given by the trial judge treating the violation of ORS 607.045 as negligence per se was erroneous and therefore the judgment must be reversed and the cause remanded for a new trial. Defendant's contention that plaintiff was contributorily negligent as a matter of law is without merit.
Reversed and remanded.
[1] ORS 607.045 (1) provides as follows: "(1) No person owning or having the custody, possession or control of an animal of a class of livestock shall permit the animal to run at large or to be herded, pastured or to go upon the land of another in a livestock district in which it is unlawful for such class of livestock to be permitted to run at large."
[2] In some states the statute expressly provides that the owner shall not permit his animals to run at large upon a highway. It is possible to argue that since ORS 607.044 deals with civil liability for damage done by livestock running at large and mentions only the liability to the "owner or lawful possessor of land" the legislature intended to exclude civil liability to others including motorists. However, ORS 607.045, as we construe it, includes a proscription against negligently permitting livestock to run upon a highway and in this respect constitutes a legislative declaration of a standard of conduct which, if violated, would give rise to liability. Griffin v. Benton, 92 Ga App 167, 88 SE2d 287 (1955); Stewart v. Wild, 196 Iowa 678, 195 NW 266 (1923). See also Clark v. Carson, 188 Kan 261, 362 P2d 71 (1961); Abbott v. Howard, 169 Kan 305, 219 P2d 696 (1950); Wilson v. Rule, 169 Kan 296, 219 P2d 690 (1950); Wiggington & Sweeney v. Bruce, 174 Ky 691, 192 SW 850 (1917); Moss v. Bonne Terre Farming & Cattle Co., 222 Mo App 808, 10 SW2d 338 (1928); Kelly v. Willis, 238 NC 637, 78 SE2d 711 (1953).
[3] See also Lemery v. Leonard, 99 Or 670, 196 P 376 (1921).
[4] In a few jurisdictions statutes similar to ours have been interpreted to give a highway user a right to recover for injuries caused by a farm animal which escapes without the negligence of the owner. Farrell v. Crawford, 222 Ill App 499 (1921); Corey v. Smith, 233 Ind 452, 120 NE2d 410 (1954) and Direct Transport Co. Ltd. v Cornell, [1938] Ont Rep 365 so hold. See also, Patterson v. Fanning, 2 Ont L Rep 462 (1901). The Illinois case, Farrell v. Crawford, was based solely upon Bulpit v. Matthews, 145 Ill 345, 34 NE 525, 22 LRA 55 (1893) which involved the liability of the owner of animals to a landowner.
It should also be noted that a proviso was subsequently added to the Illinois statute "to relieve the owner of the harshness of the law as declared in the Farrell case." Fugett v. Murray, 311 Ill App 323, 327, 35 NE2d 946 (1941). The vast majority of the cases require that the owner be at least negligent in allowing the animal to escape before he will be liable to a user of the highway. Cases are collected in Annot., 34 ALR2d 1285 et seq (1954).
[5] Typical is the statement in Gardner v. Black, 217 NC 573, 577, 9 SE2d 10 (1940):
"* * * Such a statute as this relating to allowing or permitting livestock to run at large, `implies knowledge, consent, or willingness on the part of the owner that the animals be at large, or such negligent conduct as is equivalent thereto, but does not comprehend a case where, through some untoward circumstance, the owner is unable to watch and care for the animals in a particular instance, or where, notwithstanding the owner has taken precautions to restrain them, and is without fault or negligence, the animals escape from him * * *.' 3 C.J.S., 1231. 3 C.J., 180" | 1d6cc10e19823bf0bd590bed04873feab1b76e4ed4eb7ec3b4069e401d80cc03 | 1963-06-19T00:00:00Z |
df9f9cca-587b-4933-8dca-e042b9d6f478 | Blair v. United Finance Co. | 235 Or. 89, 383 P.2d 72 | null | oregon | Oregon Supreme Court | Reversed and remanded June 19, 1963.
Petition for rehearing denied July 23, 1963.
*90 Denton G. Burdick, Jr., Portland, argued the cause for appellant. On the briefs were Hutchinson, Schwab & Burdick, Portland.
Warde H. Erwin, Portland, argued the cause and filed a brief for respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN, and LUSK, Justices.
REVERSED AND REMANDED.
GOODWIN, J.
This is the third in a series of appeals generated by the repossession of a truck in 1952. Unfortunately, it may not be the last.
The background facts may be found in Berry v. Blair, 209 Or 15, 303 P2d 944 (1956). In that case, judgment against Blair for the conversion of Berry's truck was affirmed. Blair paid that judgment and sued United Finance Co. for indemnity. Blair claimed that he was acting as an agent of United when he incurred the liability to Berry. Blair appealed from a judgment for United on a nonsuit. We reversed, holding that there was enough evidence to make out a jury question on the issue of agency. Blair v. United Finance Co., 228 Or 632, 365 P2d 1077 (1961).
On the remand, the case was tried to a jury. United offered to prove that even if Blair was its agent, which was denied, he had ample opportunity to avoid creating the liability to Berry.
United also claims Blair was acting upon his own account or for third parties when he refused to let *91 Berry redeem the truck. There was a jury question whether Berry ever made an effective offer to redeem. It was United's theory that, within the scope of any agency that existed, Blair should have collected the money due United and released the truck to Berry. Instead, United says, Blair turned the truck over to other creditors of Berry. This contention also presented a jury question.
The defendants now appeal from a judgment for Blair, assigning error, inter alia, to a refusal to give a requested instruction on the law of avoidable damages. The trial court did instruct, in a general way, upon the somewhat related but separate rule that a principal need not indemnify an agent who incurred the loss while acting outside or contrary to his authority. See Restatement, Agency 2d, § 440.
1-3. The general rule that a plaintiff cannot recover damages for losses that he could have avoided by reasonable conduct on his part is usually referred to as the doctrine of avoidable consequences. The defense is somewhat akin to the tort doctrine of contributory negligence, but need not be affirmatively alleged. See Dippold et al v. Cathlamet Timber Co., 111 Or 199, 208, 225 P 202 (1924). Evidence that a plaintiff reasonably could have avoided all or part of the damages is admissible under the general issue. McCormick, Damages 127, § 33 (Hornbook series).
4, 5. It was error to refuse to submit to the jury the defendant's theory of the case. In addition to the jury questions on the existence of agency and the scope thereof, there was equally a jury question on the defendant's theory of avoidable consequences. If, at the time the liability-creating events occurred, Blair reasonably could have avoided all or a part of the damages, then he cannot look to United for indemnity *92 for such damages as were reasonably avoidable. A principal is entitled to prove, if he can, that the agent seeking indemnity could have avoided the loss, either by following such instructions as may have been given by the principal, or by acting reasonably in all the circumstances in the absence of special instructions. The jury was entitled to pass upon all the facts. The requested instruction should have been given.
Reversed and remanded. | 5673b5ca8813fba6e9b0861bb745fef54edd03108a53e537985371aa90c42032 | 1963-06-19T00:00:00Z |
454ed74f-eb08-4fab-aac5-c3ba6d280ad6 | Starker v. Heckart | 200 Or. 573, 267 P.2d 219 | null | oregon | Oregon Supreme Court | Affirmed February 24, 1954.
Walter T. Durgan, of Corvallis, argued the cause and filed a brief for appellant.
Orval N. Thompson, of Albany, argued the cause for respondent. On the brief were Weatherford & Thompson, of Albany.
*574 Before LATOURETTE, Chief Justice, and WARNER, LUSK, BRAND and PERRY, Justices.
AFFIRMED.
LUSK, J.
Plaintiff Starker sued the defendant Heckart upon an account stated. Afterwards, by stipulation, the case was converted into one for an accounting. The court entered a judgment and decree for plaintiff for $2,251.59, with interest at six per cent per annum, and the defendant has appealed.
Heckart was engaged in the business of selling household appliances upon conditional sales contracts, and, in order to secure financing, entered into an arrangement with Starker by which the latter took assignments of such contracts for the amounts owing thereon, less interest, insurance and finance charges, under an agreement that Heckart should collect the installments coming due on the contracts and turn the proceeds over to Starker. Heckart executed a written guaranty of payment of all contracts so assigned.
The dealings commenced in 1934. As of January, 1939, an account was stated and agreed on by the parties showing a balance owing to Starker of $1,338.00. When a dispute arose between the parties as to the amount of Heckart's indebtedness, Starker, at Heckart's suggestion, employed a competent accountant to examine and analyze and make a statement of the account. The accountant was one Richard Wicks. He found a balance in Starker's favor in the sum of $2,308.00 as of April 15, 1940.
One contention of Heckart is that the court erred in not requiring an accounting as to the dealings previous to the 1939 settlement. There is no satisfactory *575 evidence impeaching that settlement and no basis for opening it up.
1. Heckart's principal claim is that Starker charged usurious interest. The point is ruled by Coast Finance Corp. v. Powers Furniture Co., 105 Or 339, 209 P 614, which decides that an assignment of a conditional sales contract under circumstances similar to those here present is a sale of a chose in action and that the transaction does not involve a loan of money. The usury statutes, therefore, have no application.
2. It is immaterial that the complaint speaks of loans made by the plaintiff to the defendant, as this is only an inaccurate characterization by the pleader a conclusion which will not be given effect in the face of the evidence disclosing the real nature of the transaction.
Wicks prepared a complete, detailed statement of the multifarious transactions involved and neither his honesty nor his accuracy has been called in question. It was conceded by Heckart on the witness stand that payments made to him on assigned contracts by his customers had not been turned over to Starker in accordance with their agreement. He practically admitted that he owed Starker some $1,200.00 but he objected to paying interest on the indebtedness. The judgment of the circuit court was for a substantially lesser sum than the balance found by Wicks to be owing to Starker and we have been given no adequate reason either in the testimony or on argument for disturbing the circuit court's decision.
The decree and judgment is therefore affirmed. | 05e42564923632270495df9f7a5b701dbc6ba6f8f4b7fa72ae7b5c0b136eb94d | 1954-02-24T00:00:00Z |
a7be9f9f-6c73-49c2-8e42-3534d73e7edf | Lawrence v. Lawrence | 200 Or. 628, 266 P.2d 691 | null | oregon | Oregon Supreme Court | Reversed February 17, 1954.
Petition for rehearing denied March 17, 1954.
Francis F. Yunker, of Portland, argued the cause for appellant. With him on the brief was P.K. Hammond, of Oregon City.
William Miller, of Portland, argued the cause for respondent. With him on the brief were McCarty, Dickson & Swindells, of Portland.
*629 Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN and PERRY, Justices.
REVERSED.
LATOURETTE, C.J.
Plaintiff and defendant, pending a divorce proceeding, entered into a property settlement wherein the following stipulation was inserted:
Shortly after the divorce was obtained, and in July, 1950, defendant secured employment with the Beall Pipe & Tank Company at a salary of $240.00 per month. Plaintiff continued the alimony payments until June, 1951, at which time the Beall Pipe & Tank Company offered defendant a ten per cent increase in salary, which she declined.
In a declaratory judgment proceeding in which both asked for relief, the trial court held that plaintiff was still obligated to pay alimony. Plaintiff appeals.
As to the offer and declination of the ten per cent *630 increase in salary, we quote from the testimony of defendant:
*631 It is our opinion that the court erred in holding plaintiff to the further payment of alimony. Unquestionably it was the intention of the parties, when the property settlement arrangement was made, that when defendant was in a position to sustain herself or remarry the alimony should cease. The sum of $250.00 was the amount determined which would afford defendant ample sustenance. To all intents and purposes, when she was offered the additional ten per cent increase in salary, she, in contemplation of law, earned the same.
Reversed. | 6c6e020c7eb5a3cea1656b582aee12fc9e5909396648135d56cf15607b931bdd | 1954-02-17T00:00:00Z |
3c8fbd13-b950-48f7-b222-ec8721db94eb | Childers v. Schaecher Lbr. Co. | 234 Or. 230, 380 P.2d 993 | null | oregon | Oregon Supreme Court | Affirmed May 1, 1963.
*231 Joe B. Richards, Eugene, argued the cause for appellant. On the brief were Luvaas, Cobb & Richards.
Duane Vergeer, Portland, argued the cause for respondent. On the brief were Vergeer & Samuels and Frederic P. Roehr.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
LUSK, J.
Plaintiff brought this third-party action, based on negligence, to recover damages for personal injuries sustained while he was engaged with an employee of the defendants in dumping logs on premises owned by the defendants. Plaintiff and his employer and defendants and their employee were subject to the Workmen's Compensation Act. The defendants filed a supplemental answer pursuant to ORS 656.324(3) by which they challenged the right of the plaintiff to maintain the action in view of the provisions of ORS 656.154.[1]
*232 The case was put at issue and after a trial the court entered findings of fact and conclusions of law and a judgment of dismissal. Plaintiff appeals.
The court found that the defendants employed Ivan Warthen as a scaler and as an operator of machinery for unloading logs at its log dump; that the plaintiff was a truck driver employed by A.L. Irvine, who was a log trucker engaged in the hauling of logs to the defendants' mill; and that the defendants and the plaintiff's employer were employers subject to the Workmen's Compensation Act. The findings continued as follows:
It is not contended that the findings of fact are not supported by the evidence.
The conclusions of law were to the effect that the plaintiff and his employer and the defendants and their employee were engaged in the furtherance of a common enterprise and exercising joint supervision and control over the premises where the injury occurred and that, since all persons concerned were under the Workmen's Compensation Act, plaintiff's action was barred.
Substantially, the question is the same as that decided adversely to the plaintiff in Boling v. Nork, 232 Or 461, 375 P2d 548, in which we construed subdivision (3) of ORS 656.154 providing that "[n]o person engaged in pickup or delivery of any goods, wares or merchandise to or from the premises of any employer other than his own shall be deemed to have joint supervision or control over the premises of a third party employer." The plaintiff in that case was a truck *234 driver, who was engaged in loading logs when he was injured. We held that the "pickup or delivery" provision of the statute was not applicable and that the action was barred because of the provisions of ORS 656.324 (1) and (2). Plaintiff here does not ask us to reconsider this decision, but argues that it does not apply to the other end of the total operation of log hauling. Evidence in the transcript is pointed to which shows that in the logging industry in Lane county contracts normally call for "delivery" of logs into the pond. This, plaintiff says, is the activity in which he was engaged at the time he was injured.
The argument misconceives the scope of the decision in the Boling case. "Delivery" in a contract may mean one thing; in a statute concerning workmen's remedies for injury, something quite different. The Boling case, construing the words of the statute in context, held that they did not cover logging operations, whether loading or unloading. We quote from the opinion:
We adhere to the views thus expressed. The judgment is affirmed.
*235 SLOAN, J., dissenting.
Boling v. Nork, 1962, 232 Or 461, 375 P2d 548, was incorrectly decided and should not be 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."
[1] ORS 656.154 (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, or if death results from the injury, his widow, children or other dependents, as the case may be, 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 ORS 656.002 to 656.590.
(2) As used in this section, "premises" means the place where the employer, or his workman causing the injury, and the employer of the injured workman, are engaged in the furtherance of a common enterprise or the accomplishment of the same or related purposes in operation.
(3) No person engaged in pickup or delivery of any goods, wares or merchandise to or from the premises of any employer other than his own shall be deemed to have joint supervision or control over the premises of a third party employer. | d32e3fa44473a0d9d2b03feb4b2b6b85646955b79b637282870b14f6deec7988 | 1963-05-01T00:00:00Z |
fd24706f-286f-4b24-9931-e4779a170c9b | Soumie v. McLean | 234 Or. 485, 382 P.2d 1 | null | oregon | Oregon Supreme Court | Affirmed May 22, 1963.
Petition for rehearing denied June 18, 1963.
*487 C.X. Bollenback, Portland, argued the cause for appellants. With him on the brief was Ruth Rose Richardson, Portland.
Richard E. Paul, Portland, argued the cause for respondents. With him on the brief were Keith A. Caldwell, Dan J. Kenney, and Roscoe Watts, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the plaintiffs-contentants from a decree of the circuit court which dismissed their complaint contesting the will of their cousin Emilie Poole Darr, who died in Portland on April 10, 1961. The contestants, Mrs. Dee Soumie and Mr. Earl Dunn, are Emilie's closest known blood relatives.
The defendants-proponents are Lois McLean, executrix of the estate and also a beneficiary thereof; The Oregon Bank, administrator cta of the estate; Mrs. Melvin Abbott, a beneficiary; Moyna Mitchell, executrix of the estate of Maude Moser Mitchell, deceased, a beneficiary; Hazel Elliott, a beneficiary; Lillian *488 Kurman, a beneficiary; and the Theosophical Society of Portland (hereinafter "the Society"), residuary legatee.
Emilie Poole Darr was born around the turn of the century in San Francisco. She became married but was later divorced and never remarried. She had no children. In the early 1940's, after the death of her father, she moved with her mother to Portland where in 1945 they purchased from one Stacsa Plinkiewisch a residence located at 3705 North Longview. Stacsa subsequently became a close friend of both Emilie and her mother. Emilie's mother died of cancer in 1953. Shortly thereafter Emilie herself became afflicted with cancer of the breasts. During the years between her discovery of the cancerous condition and her eventual demise she sought aid from practitioners of divers persuasions, at least two of whom were qualified medical doctors. In the year 1960 Lillian Kurman, who we have indicated is a beneficiary under the will being contested, came to Portland from San Francisco to act as a companion and a housekeeper to Emilie. Lillian and Emilie had been friends for many years. They lived together in Emilie's home until her death in 1961. The aforementioned Lois McLean, an active member of the Society, then became executrix of the estate.
Emilie was the author of many wills, five of which are in evidence. Three of the five were written prior to 1956 and named as executrix her friend Stacsa Plinkiewisch. There is some indication that she wrote other wills between 1956 and 1961, but none of them are in evidence.
In November of 1960 Emilie became a member of the Society. The testimony reveals that she had a high regard for it and its members. Although her *489 poor health precluded her attendance at the meetings, she was anxious that Lillian too should become affiliated with the group. In January of 1961 Emilie executed a will which named Lois McLean executrix and made the Society her chief beneficiary. Subsequently an attorney suggested some changes. The will was revised in accordance with his suggestions, and a new will was executed in March of 1961, also naming Mrs. McLean as executrix and leaving the residue of the estate to the Society. In substance, the January and March wills differ little. Both were signed by the same subscribing witnesses. The foregoing suffices as a brief introduction to the rather complicated circumstances which form the fact situation of this case.
The two assignments of error submitted by the contestants are the following:
In support of their first assignment of error contestants contend that Emilie was subject to monomania and that this fact renders her will invalid although she may otherwise have been of sound mind.
"Monomania" is described in Webster's New International Dictionary as:
Contestants claim that Emilie was subject to monomania in the following respects: (1) with regard to *490 medical doctors, surgery and treatments for her illness; (2) "she was easy prey for persons glibly promising a cure, such as the active proponents (Mrs. McLean and Mrs. Clehm) and their cohorts. * * *" and (3) she suffered from delusions concerning some of her close friends and relatives.
As factors indicative of monomania we are referred to Emilie's preference for a vegetarian diet, to her refusal to submit to surgery, to her apparent distrust of medical doctors and to her consultations with practitioners using unorthodox healing methods. People who are converted to branches of the healing arts other than that branch which is generally known as "medicine," are not uncommon. Nor is there a dearth of persons who hold aloof from medical doctors and who are reluctant to undergo surgery. Even if it be conceded that Emilie labored under the mistaken belief that the various practitioners she visited were improving her condition, it cannot be concluded that she was insane in this respect. The most that could be said of such a situation is that she was misinformed. In the words of the able trial judge, "There are lots of gullible people in the world." And gullibility is not to be confused with insanity. In passing, we note that among the persons whom Emilie consulted regarding her health were two medical doctors, and that her mother had been under the care of a qualified medical doctor immediately prior to the mother's death.
It is implied that members of the Society urged upon Emilie some of these practitioners, guaranteeing favorable results and subsequently causing her to believe that her health was improving. The record is devoid of evidence supporting these allegations. While it is true that Mrs. Clehm recommended to Emilie a *491 practitioner in British Columbia, it would be a novelty to assume that by this recommendation she was guaranteeing complete satisfaction. Nothing in the record indicates that any member of the Society gave Emilie the impression that she was getting well.
1, 2. Contestants also contend that Emilie was subject to monomania as regards her relationship to her relatives and close friends. Mrs. McLean, an active member of the Society and executrix of the will, testified concerning a conversation she had with Emilie about Mrs. Soumie, Emilie's cousin, as follows:
Mrs. Augusta Clehm, who at the time of the trial was President of the Society, testified that Mrs. Darr had complained to her that Dee Soumie was greedy despite the fact that she had a substantial amount of money, that she was a heavy drinker, was often untruthful, took advantage of elderly people through her sharp business practices and that she was jealous of Emilie. Similar testimony was given by Hazel Elliott, an intimate friend of Emilie and also a proponent of the will.
It will be recalled that Lillian Kurman, a longtime friend of Emilie, came from San Francisco to act as a housekeeper and companion to Emilie during her illness. Some of proponents' witnesses testified that Emilie had complained to them that Lillian was a poor housekeeper and that she had not fulfilled Emilie's expectations in that regard. Emilie also was critical of Lillian's rather pessimistic outlook on life. In *492 addition, she was quoted as having said that Lillian had at one time been committed to a mental hospital and that it was chiefly through her (Emilie's) efforts that Lillian had been released. Lillian testified that she had never been a patient in a mental hospital.
Contestants, on the other hand, produced testimony of an intimate and amiable relationship between Emilie and her cousin (Mrs. Soumie) and between Emilie and Lillian Kurman, which relationships remained intact until the time of Emilie's death. They (contestants) contend that this seemingly inconsistent behaviour is evidence of monomania. They appear to assume that Emilie's criticism of what in her opinion were undersirable characteristics in her close acquaintances cannot readily be reconciled with her intimate relationships with them. In support of their contention they rely on some Oregon cases. Typical of these is Hofen v. United States National Bank, 215 Or 603, 335 P2d 86 (1959) from which we quote:
In the Hofen case exhibits were introduced which consisted of pictures of the contestant daughter taken in her childhood. The pictures were torn into small pieces and in each instance the face and eyes had been scratched by a sharp object. In commenting on this evidence, the court said:
The Hofen case, in common with other Oregon cases in this area, regards as an essential element of testamentary incapacity, where a change in the testator's attitude towards his friends and relatives has occurred, that the change be a noticeable one, that is, that it be sufficiently "abrupt" so that a marked difference appears. No evidence of such a change in Emilie appears from the record in the case at bar. Lillian Kurman, whose testimony, despite the fact that she was named in the complaint as a proponent, decidedly sympathized with contestants' view of the case, testified as follows:
On cross-examination Hazel Elliott, a proponent, testified thus:
The foregoing uncontradicted testimony clearly reveals that there was no radical change in the attitude of Emilie toward either Lillian Kurman or Dee Soumie, if there was any change at all. To the contrary, her disapproval of Mrs. Soumie's habits had persisted through the years despite their close friendship. It would indeed be a novelty to conclude that because Emilie criticized certain of her cousin's practices and because of those practices preferred not to entrust her estate to that cousin, that she fostered within herself a hatred for her cousin which bordered on insanity. Only in the most unusual of circumstances do even the best of friends approve all of each other's actions and attitudes.
That Emilie said little that was good about Mrs. Soumie to Mrs. Clehm and Mrs. McLean is of little consequence. The worst that could be inferred from this factor is that Emilie was a gossip. Although the compulsion to gossip is not a trait to be admired, it can hardly be deemed evidence of insanity. Here again, *495 it is significant that Emilie's dissemination of Mrs. Soumie's faults began long before her close acquaintance with members of the Society and before she herself became a member.
Nor do Emilie's criticisms of Lillian indicate that she (Emilie) was insane. There is nothing to show that this criticism represented any change in Emilie's general attitude toward Lillian. We have observed that Lillian herself testified that she could detect no change. It is conceivable that Emilie could frankly disapprove of Lillian's housekeeping and of her general outlook on life and still regard her as a good friend and companion. That Emilie claimed that Lillian had at some time been a patient at a mental hospital and was released primarily through Emilie's efforts, even if it were true, would certainly cast no reflection on Lillian's character or her ability. Nor does the fact that the statement was untrue indicate that Emilie intended this revelation to embarrass Lillian. The testimony would rather support the conclusion that this was an attempt by Emilie to justify in her own mind her acceptance of Lillian's gratuitous services.
3. It should be noted that the contestants introduced no evidence which tends to refute Emilie's statements that Mrs. Soumie was a heavy drinker, that she was often untruthful, that she engaged in sharp business practices at the expense of elderly people, and that she was greedy. The existence of such testimony may have aided her cause. Its absence justifies an inference that the charges were not without foundation in fact. ORS 41.360 (5).
In view of the considerations which have gone before, we must conclude that contestants have not brought evidence sufficient to establish that Emilie *496 Darr was subject to monomania at the time she executed the will under consideration.
4. Proponents, on the other hand, produced many witnesses, several of whom were disinterested parties and each of whom testified that Emilie was of sound and disposing mind, that she was capable of recognizing and disposing of her property and that they at no time observed any change in her mental capacity. Both persons whose signatures appear as witnesses to the will emphatically supported these observations. We conclude that the proponents have sustained their burden and that Emilie Darr had testamentary capacity at the time she executed the will. Contestants' first assigment of error is without merit.
In their second assignment of error the contestants claim that the trial judge erred in failing to find that the will of March 9 was the product of undue or improper influence. They contend that members of the Society "and their cohorts" were guilty of improper conduct which influenced Emilie to make the Society her residuary beneficiary. They point to circumstances surrounding the preparation and execution of the will which they claim raise a presumption of improper influence, which presumption it is the proponents' burden to rebut. We proceed to a consideration of those circumstances.
Emilie's contacts with members of the Society prior to 1960 can best be described as sporadic. During the summer of that year, however, the aforementioned Mrs. Clehm began to take a special interest in her. Mrs. Clehm testified that she had been led to believe that Emilie was lonely and that she needed companionship. She swore that it was to fill this void in Emilie's life that she began making weekly visits and conversing with Emilie frequently over the telephone. *497 These contacts continued more or less regularly until Emilie died.
Although she had at infrequent intervals attended lectures sponsored by the Society over the years, Emilie did not join the group until November of 1960. During the month of December of that year her certificate of membership was presented to her at her home by a Dr. Smith, a retired dermatologist who at that time presided over the American Section of the Theosophical Society, and who happened to be visiting Portland. Also in December of 1960 Emilie donated to the Society a Chinese jardiniere. Engraved upon a brass plaque attached to the gift were the words, "Donated by Emilie Poole Darr, 1960."
Mrs. Lois McLean testified that on November 18, 1960, she received a telephone call from Emilie, asking her to visit her at her home. Mrs. McLean complied with the request. This was the first time during their rather lengthy acquaintance that Mrs. McLean had been in Emilie's home. During the visit Emilie disclosed to Mrs. McLean her plans to make some changes in her will. Emilie told her that she proposed to write the will in longhand and asked her whether she (Mrs. McLean) would consent to type it for her. This Mrs. McLean agreed to do. After an interval of approximately six weeks Emilie informed Mrs. McLean that the will was ready to be typed. The typed will was delivered by Mrs. McLean to Emilie on January 8, 1961.
According to Mrs. Clehm, Emilie told her sometime during November of 1960 that she intended to revise her will and that she contemplated leaving something to the Society. At that time she asked Mrs. Clehm to arrange for two witnesses to be present whenever the will was to be executed. Mrs. Clehm suggested, so *498 she swore, that Emilie ask one of her neighbors to act as a witness and that Emilie voiced a preference for strangers. She testified, in part, as follows:
The name of Mrs. Clehm's cousin is Mrs. Hunt. Mrs. Black is a good friend. She escorted those two ladies to Emilie's home where they observed Emilie as she signed the will which had been typed by Mrs. McLean. They then signed their names as subscribing witnesses, and, after a brief visit, returned to their homes. Two days later, at Emilie's request, Mrs. McLean picked up the will and took it into her possession for safekeeping.
On March 3, 1961, Mrs. McLean again received a telephone call from Emilie concerning which she testified as follows:
On March 7 following, pursuant to this request, Mrs. McLean, in the company of Mrs. Clehm, visited Mr. Keith Caldwell and presented Emilie's problem to him. Mr. Caldwell testified that he prepared a power of attorney in Mrs. McLean's favor and advised Mrs. McLean to have Emilie sign it. While the two women were in Mr. Caldwell's office, Mrs. McLean spoke to Emilie on the telephone and Mr. Caldwell did so also. Immediately following this consultation with Mr. Caldwell, which was at some length, the power of attorney was delivered to Emilie by Mrs. Clehm. When Mrs. McLean returned home from work that evening Emilie thanked her by telephone for allowing her to speak with Mr. Caldwell and suggested additional changes to be made in the will. The next day, March 8, 1961, Mrs. McLean retyped the January will, incorporating the suggestions of both Mr. Caldwell and Emilie. On the same day she took the will to Emilie's home. Concurrently she picked up the signed power of attorney which was in fact never exercised but which gave Mrs. McLean the authority to provide for Emilie's care. We have stated that the purpose of the power of attorney was to eliminate the possibility of interference from Mrs. Soumie. Mrs. McLean also picked up a list which was incorporated into the new will by reference and which stated to whom the executrix of Emilie's estate should give various items of personal property. Regarding that list Mrs. McLean testified as follows:
As was the case in the execution of the January will, Mrs. Clehm, at Emilie's request, brought Mrs. Hunt and Mrs. Black as attesting witnesses for the March will. The foregoing are substantially the facts upon which contestants rely to support their claim that members of the Society improperly influenced Emilie in the disposition of her property.
5-7. The burden of proving that the will was the product of improper influence is upon the contestants. In re Reddaway's Estate, 214 Or 410, 420, 329 P2d 886 (1958). It is true that such influence is seldom capable of direct proof and that circumstantial evidence may be admitted to show that it existed. In re Estate of Porter, 192 Or 483, 489, 235 P2d 894 (1951). But *501 "* * * the effect thereof, if the will is to be set aside, must be to prove that undue influence actually was exercised, and a court cannot `accept in lieu of substantial evidence mere suspicion, innuendo, insinuation, and speculation.'" 1 Jaureguy and Love, Oregon Probate Law and Practice 319, citing Trombly v. McKenney, 191 Or 90, 112, 228 P2d 417 (1951). It has, however, been held that the existence of a confidential relationship, when taken in connection with "suspicious circumstances," may justify an inference of improper influence which, in turn, will demand an explanation by the beneficiary who sustains the confidential relationship. In re Southman's Estate, 178 Or 462, 482, 168 P2d 572 (1946). Contestants assert that the requisite confidential relationship and suspicious circumstances were present in the case at bar and that the proponents have not sustained their burden of explaining those circumstances.
8. In assessing the weight to be given a confidential relationship in determining whether improper influence has been exerted, it is well to keep in mind that an individual who is writing a will generally does not devise his property to those in whom he has no confidence. It is to be expected that a testator will leave his estate to those in whom he trusts and who he infers will dispose of it wisely. It is also natural that when he requires assistance in the preparation of his will he may consult those very persons, that is, those in whom he has confidence. To impose upon beneficiaries who occupy such a position of trust the burden of proving an absence of improper influence would in many instances defeat the will rather than probate it. In re Knutson's Will, 149 Or 467, 489, 41 P2d 793 (1935). The mere fact that a beneficiary has occupied a confidential relationship to the testator does not, therefore, *502 of itself allow an inference of improper influence. It serves rather to alert the court to the possibility of such influence and warns it to examine the record carefully for additional circumstances which, in combination with the fiduciary relationship may support an inference of improper influence. For purposes of our consideration of the case before us we will assume that some members of the Society stood in a confidential relationship toward the testatrix, although it is not at all clear from the record that such a relationship existed.
As circumstances supporting an inference of improper influence, contestants assert that:
If supported by the evidence, these charges may, in the absence of a satisfactory explanation, justify an inference of improper influence. We will consider them in the order in which they appear.
9. It is well settled that where a beneficiary sustained to a testator a confidential relationship and actively participated in the preparation of the will a presumption of improper influence arises. Such presumption may, however, be rebutted by a reasonable explanation for the beneficiary's active role. But active participation contemplates more than that the beneficiary *503 merely types the will or that he is present during its execution. In re Estate of Meier, 190 Or 140, 150, 224 P2d 572 (1950); In re Llewellyn, 296 Pa 78, 81, 145 A 810, 66 ALR 222 (1929). The latter case, which was discussed with approval in In re Knutson's Will, 149 Or 467, 491, 41 P2d 793 (1935), said:
In the Llewellyn case the testator and his sole beneficiary had been close friends for many years. The beneficiary summoned the attorney who drafted the will at the testator's request. The draft of the will was delivered by the attorney to the beneficiary who, in turn, delivered it to the testator. The subscribing witnesses were called by the beneficiary, also at the testator's request. And the beneficiary was present at the execution of the will. At the time the will was executed a power of attorney was also executed in the beneficiary's favor. The bequest was for an amount approximating a million dollars. Yet the court found that the circumstances of that case did not warrant an inference of improper influence.
10. Mrs. McLean's participation in the will's preparation *504 consisted first, of typing the will after it had been drafted and written in longhand by Emilie, and second, of retyping the will incorporating the changes which had been suggested by Mr. Caldwell and Emilie herself. Mrs. Clehm's participation was limited to procuring the subscribing witnesses at Emilie's request and of being present at the execution of the will. No other member of the Society assisted in the preparation of the will. In light of our analysis which has gone before, we must conclude that these favors to Emilie are not the kind of participation which, in combination with a confidential relationship, gives rise to a presumption of improper influence.
Out of a total of five wills bearing Emilie's signature which are in evidence, three were executed prior to 1956 under the supervision of Mr. Edwin G. Amme, a Portland attorney. The other two wills in evidence are the January and March wills which are the subject matter of our investigation. We have noted that the latter incorporated some suggestions made by Mr. Keith Caldwell. Contestants contend that the fact that Mr. Caldwell rather than Mr. Amme inspected the 1961 wills casts suspicion upon those wills and is a circumstance, in combination with others, supporting an inference of improper influence.
11. We have described the circumstances under which Emilie directed Mrs. McLean to consult with Mr. Caldwell regarding her will. Mr. Amme testified that he did business for Emilie for the first time around 1950 and that his last item of business for her was transacted in 1956. Contestants presented no evidence that Mr. Amme was the only attorney who had ever served Emilie or that he was the only one who served her between 1950 and 1956. In addition, it is conceivable that she may have had some legal advice *505 from an undisclosed attorney after 1956 and prior to 1961, when Mr. Caldwell was consulted. Nothing in the record suggests an inference of collusion between Mrs. McLean and Mr. Caldwell. There is no evidence that Mrs. McLean knew Mr. Caldwell prior to her visit at Emilie's request. Indeed, the only available testimony supports a contrary conclusion. It must be remembered that the burden of establishing improper influence is upon the contestants. On this phase of their case they have shown no more than that prior to 1956 Mr. Amme attended to at least a part of Emilie's legal business and that in 1961 Mr. Caldwell made some suggestions which she incorporated into her will. It is not uncommon for people to change lawyers for no apparent reason. That Emilie should through her friends seek the advice of an attorney other than Mr. Amme five years after the latter last served her cannot be deemed a circumstance indicative of improper influence.
Contestants claim that an aura of secrecy surrounded the execution of the will. We have described the circumstances under which Emilie requested that Mrs. Clehm furnish witnesses, and have seen that Mrs. Clehm suggested that Emilie ask one of her neighbors to render the requested service. Emilie, however, did not wish to involve her neighbors in the will's execution. Under those circumstances it was to be expected that Mrs. Clehm would procure the services of persons whom she considered trustworthy. That she had to drive a short distance out of her way to get them is of little consequence. Contestants attach great significance to the fact that only Mrs. Clehm and the two witnesses she had supplied were present in the room when Emilie signed the will. The law does not demand that a testator have present at the signing of his will *506 a gallery of spectators. It requires two witnesses. Two persons testified that they saw Emilie sign her will and that they signed as subscribing witnesses. There is no evidence that Lillian, the housekeeper, was excluded from the room at the request of members of the Society or those sympathetic toward it. Nor does it appear that Emilie herself asked Lillian to leave. Lillian herself, as a witness for the contestants, testified as follows:
At another point in the trial Lillian testified:
It is clear from her testimony that Lillian left the room voluntarily. It is also clear that before she left the room Emilie had informed her that she was about to sign the will. She did not keep this fact secret from Lillian. Even if Lillian had been asked to leave the room while the will was being executed, our view would be unchanged. See In re Knutson's Will, 149 Or 467, 495, 41 P2d 793 (1935).
*507 When asked upon cross-examination what knowledge she had of the wills, Mrs. Soumie a contestant, testified:
Two significant facts appear from the foregoing testimony. First, Mrs. Soumie was informed by Emilie *508 herself that she had executed a will in the early part of March. She did not keep this fact from Mrs. Soumie. Second, Mrs. Soumie conceded that she herself repelled each attempt Emilie made to discuss with her her wills. In light of that concession it is difficult to understand how Mrs. Soumie can now in good faith complain of the alleged secrecy surrounding the execution of the wills. That Emilie preferred not to divulge to all the world the terms of her will is natural. But that she kept the fact that the will had been executed from her closest friends is not supported by the record. Nothing in the law requires a testator to publish the contents of his will from the housetops. Only where he wishes to do so and is restrained therefrom by the beneficiary can any inference of improper influence be drawn. The record reveals no trace of such a desire or support for such an inference. The allegation of secrecy is unfounded.
12. It is also contended that it was incumbent upon the proponents to come forward with evidence that Emilie received independent advice about her will. We repeat that the burden of proving improper influence is upon the contestants. Theirs is the burden of bringing evidence showing that no independent advice was received, or, in the alternative, that the circumstances precluded the receiving of such advice. No such showing has been made. To the contrary, the record clearly shows that members of the Society visited Emilie infrequently. She had ample opportunity to obtain independent advice either from Lillian Kurman or from the substantial number of visitors she received.
When questioned whether she had ever advised Emilie to obtain independent advice Mrs. Clehm swore that at one time she suggested to Emilie that she consult an attorney and that Emilie had declined to do *509 so. We are not prepared to thrust upon a beneficiary the burden of coercing the testator into obtaining advice from independent sources. It is sufficient that the suggestion be made that such advice be sought and that the beneficiary refrain from conduct which would hinder obtaining such advice. We note that Emilie did in fact receive advice regarding her will from Mr. Caldwell. Although his advice was not given under ideal conditions, nothing indicates that it was prejudiced.
13. We have shown that it was suggested that Emilie obtain advice from an attorney, that she in fact did receive advice from an attorney and that she had ample opportunity to receive independent advice from a variety of sources. In view of these circumstances we find no support for the contestants' contention that Emilie had no independent advice.
Contestants complain that the will is "drastically" different from previous wills. It has been shown that three of the wills executed by Emilie prior to 1961 were offered in evidence. It is significant that in none of these did Emilie leave a bequest to either of the individuals contesting the present will. Each of those wills contains this provision: "The failure to mention any relatives herein has been intentional." The wills which were prepared in 1961, however, and which contestants claim were the products of improper influence each leave something to each of the contestants. This change favored the contestants.
The most significant change between the wills executed prior to 1956 and those executed in 1961 is that in the former Stacsa Plinkiewisch was named as residuary legatee whereas in the latter the Society inherited the residue. It will be recalled that Mrs. Plinkiewisch is the individual from whom Emilie and *510 her mother purchased a home soon after their arrival in Portland. Mrs. Plinkiewisch testified that prior to 1955 there had been a rather close relationship between Emilie and herself but that they gradually saw less and less of each other. The last time she saw Emilie was in 1958. It is not unnatural under such circumstances that Emilie should wish to leave the residue of her estate to someone or some organization with which she had been more closely associated in the recent years of her life. We do not deem a change of this nature sufficiently drastic to arouse suspicions.
14. Some testimony was introduced which indicates that between 1956 and 1961 Emilie made several wills in addition to those which are in evidence. Contestants claim that the existence of those wills makes comparison of the March 1961 will with the older wills invalid. They speculate that the intervening wills may have contained terms substantially different and more favorable to their cause. In such speculations we are unable to indulge. Contestants have charged that the March will is drastically different from previous wills. No previous will in evidence remotely supports that contention. Theirs was the burden to submit evidence supporting their charge. They have not done so. We therefore have no choice but to conclude that the contention is without merit.
Also submitted as evidence of improper influence is the alleged change in Emilie's attitude toward her close friends and relatives. In our discussion under the first assignment of error we showed that neither the testimony of the witnesses nor the wills in evidence support a conclusion that any significant change occurred. This charge must be dismissed as unfounded.
In addition to the contentions we have discussed, contestants present an argument which apparently was *511 not presented to the trial court and with which the witnesses were not confronted. They claim that the fact that a jade ring which in the January will had been left to Mrs. Soumie was omitted from the March will entirely and subsequently appeared in the bequest of personal property to Mrs. Clehm is a circumstance supporting an inference of improper influence. We derive from contestants' briefs and from counsel's oral argument the impression that they have erroneously assumed that the words "jade ring" were typed into the list of bequests to Mrs. Clehm by interlineation after the rest of the personal property list had been completed. A careful inspection of that list has convinced us that this is not the case and that the words "jade ring" were on the list which Mrs. McLean copied from the handwritten list which Emilie had prepared. Its deletion from the body of the will is understandable in light of Mr. Caldwell's advice that all items of personal property should be included in a separate list rather than in the will itself.
15. In disposing of the specific contentions which contestants have raised, we have assumed that there existed between Emilie and members of the Society a confidential relationship. We are aware that there existed for the members of the Society opportunities to exercise improper influence. But this Court has consistently held that the bare opportunity will not support an inference of improper behaviour. We have read the record and the exhibits with care and are satisfied that the evidence does not warrant a finding of improper influence. The contestants' second assignment of error is without merit.
The decree of the circuit court is affirmed. | ec86db30a2ef7f20044b770ff36530a7bda39a9f1f51de8cbd629007cc1f745a | 1963-05-22T00:00:00Z |
fa0934f6-7dba-460d-9d62-dc58275faf10 | Martin v. Good | 234 Or. 291, 381 P.2d 713 | null | oregon | Oregon Supreme Court | Affirmed May 15, 1963.
*292 Norman K. Winslow, Salem, argued the cause for appellant. With him on the briefs was Howard Kaffun, Salem.
Allan G. Carson, Salem, argued the cause for respondent. On the brief were George R. Duncan, Jr., Stayton, and Carson, Carson & Carson, Salem.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
DENECKE, J.
The plaintiff seeks to rescind an exchange of motels between himself and the defendant principally upon the ground that the defendant had misrepresented the income of the property. The trial court held for the defendant.
The plaintiff owned the Last Frontier Motel and Cafe. This was located in the Cascades on one of the highways through the mountains. He listed it for sale with a Salem realtor. Through him plaintiff learned *293 of the defendant's property in Porterville, California. This was called Sequoia Motel and was solely a motel operation. It was operated personally by defendant. Sunnyvale Realty, by R.W. Phillips, was trying to sell the motel for the defendant.
Plaintiff went to Porterville in April, 1959, for the purpose of investigating the property and stayed several days at the Sequoia Motel. The defendant, Mrs. Good, and the realtor, Mr. Phillips, were there at the same time and conversations were had about the properties and a possible exchange. At the time of this visit, the plaintiff, Mr. Martin, on April 2, 1959, signed an agreement whereby he agreed to exchange the properties, with no other consideration to be paid by either party. Mrs. Good did not so agree at this time.
About June 1, 1959, Mrs. Good and Mr. Phillips came to Oregon and looked over the Last Frontier. They too stayed several days. Before defendant left the parties agreed on an exchange in which Mrs. Good was to receive $7,500, as well as the Last Frontier. Mr. Martin took possession of the Sequoia on July 1, 1959, and installed his sister as manager. Mrs. Good took over management of the Last Frontier.
By letter, dated August 30, 1960, the plaintiff wrote the defendant that she had misrepresented the gross income of Sequoia and for this reason plaintiff was rescinding the exchange. A suit for rescission was filed in November, 1960. In ruling for the defendant, the trial court made no findings of fact or conclusions of law. It merely stated in the decree, "that the equities of this suit are with defendant and against plaintiff."
1. The plaintiff alleged in his complaint and he personally testified that Mrs. Good and Mr. Phillips told him the gross revenue of Sequoia was $3,000 to $5,000 per month. He further testified that from what *294 he observed at the motel he believed at the time that the $3,000 figure was very possible but he discounted the $5,000. According to the income tax returns filed by Mrs. Good, her gross revenue for the 12 months she operated Sequoia averaged about $1,600 per month. Under Mr. Martin's ownership the average monthly gross income was lower. Under Mr. Martin's ownership the gross revenue was not sufficient to pay operating expenses and payments on obligations which plaintiff assumed in the exchange.
Records were available before the exchange was consummated which, upon quick examination, would have shown Sequoia produced a gross income substantially less than $3,000 per month. Mr. Martin did not ask to examine the records. Defendant did not offer to produce them.
Before passing upon this contention of misrepresentation of income, another contention of plaintiff should be stated and considered with the income misrepresentation allegation.
Plaintiff alleges that the consideration passing to him in the exchange was so inadequate as to afford an independent ground for rescission; or, if the inadequacy of consideration is not, standing alone, a sufficient ground for rescission, that it, coupled with some evidence of misrepresentation, is a combination affording ample ground for rescission.
Plaintiff contends that the Sequoia has no value over and above the amount of the encumbrances on it, $77,000. An appraiser so testified. He based his opinion solely on the capitalization method; he has never seen the property. Mrs. Good testified the Sequoia was worth approximately $75,000 over and above encumbrances. The Last Frontier, plaintiff contends, has *295 a market value of approximately $70,000. It is unencumbered.
The testimony here was that plaintiff was a man of wide business experience. He worked as an accountant for almost 10 years. He had accumulated a substantial amount of wealth. He was capable of making an informed, independent judgment on the terms of an exchange of properties, and he did.
The trial court and this court have heard and read testimony of so many competent and reputable appraisers and owners on the question of value which was at complete variance with the testimony of other competent and reputable appraisers that we hesitate to come to a decisive finding of value based upon opinion evidence. This is particularly so here where the plaintiff, a successful businessman, experienced in accounting, made a determination that it was advantageous to him to exchange his property and $7,500 for defendant's property. Admittedly, any successful and experienced businessman can make a foolish and unwise transaction, but it is our belief that very few of such transactions are made in which the discrepancy in what was received for what was given is so great as *296 to raise a strong inference that the businessman was swindled.
2, 3. As to the alleged misrepresentation of income, the testimony is conflicting. Mr. Martin says defendant made the misrepresentation or Mr. Phillips did in defendant's presence. Defendant specifically denies this. Mr. Phillips did not testify because he was in a California penal institution upon a felony conviction. This would cast doubt on Mr. Phillips' credibility, but not on Mrs. Good's. This was in equity and, therefore, the facts are tried de novo. However, "[i]n a case involving contradictory testimony the opinion of the trial judge who saw the witnesses and had an opportunity to appraise the value of their testimony at first hand, is entitled to great weight." Larsen v. Lootens, 102 Or 579, 597, 194 P 699, 203 P 621 (1922). We do not know specifically what the trial court found, but we are not going to reverse a decree by deciding one witness is to be believed and another witness is not to be believed unless because of peculiar circumstances we are convinced that the trial court's decision in this regard is clearly erroneous.
It is concluded that the charged inadequacy of consideration and the charged misrepresentation of income, singly, or in combination, have not been proved by clear and convincing evidence.
4. Plaintiff's other grounds for rescission concern Mr. Phillips' position and conduct. Plaintiff contends that Phillips owned a one-half interest in the Sequoia Motel and that if he had known Phillips had an interest in the property he would not have acquired it. Mrs. Good had the record title. Whatever interest Phillips had was equitable. Mrs. Good said it was a security interest because Phillips had financially assisted her in acquiring Sequoia. Mrs. Good testified she told plaintiff *297 the whole story of Phillips' interest. Plaintiff flatly denied this. Again, we are asked to believe one witness and disbelieve another. Again, we conclude plaintiff has not proved this issue by the necessary quality of evidence.
5. Plaintiff asserts he is entitled to rescission because Phillips concealed the financial condition of Sequoia which violated the fiduciary duty of full disclosure Phillips owed as plaintiff's agent. The parties agreed that Phillips could act as agent for both. When there is a double agency one principal cannot charge the other principal by reason of the agent's breach of his agency obligation unless such breach was at the instigation of the other principal. Swengel v. Bruun, 136 Or 370, 374, 298 P 242, 299 P 332 (1931), involved slightly different facts than those here. However, it quoted with approval a statement from 2 Mechem, Agency (2d ed), 1717, § 2140, which is in point here:
6. The plaintiff does not challenge this principle of law. However, he asserts that defendant approved and ratified Phillips' conduct which was in breach of his agency for plaintiff. Plaintiff relies on defendant's general statements that as far as she knew Phillips did not do anything that did not have her approval, *298 was loyal to her in acting as her broker, and did nothing improper. This is not found to be any approval or ratification. Defendant is held not to be bound by any breach of the agency relationship that might have been committed by Phillips.
The decree is affirmed. | 2a518dc5dbdd504dd9384f8865c5a33dfd87c2beda41561a9275308e6bb987a7 | 1963-05-15T00:00:00Z |
354b8816-7019-4c24-acb5-961850603f60 | Wimer v. Miller | 235 Or. 25, 383 P.2d 1005 | null | oregon | Oregon Supreme Court | Reversed and remanded July 15, 1963.
*26 E.R. Bashaw, Medford, argued the cause for appellant. On the brief were Jones, Reeder & Bashaw, Medford, and Yates & Murphy, Roseburg.
Cleveland Cory, Portland, argued the cause for respondent. With him on the brief were Rockwood, Davies, Biggs, Strayer and Stoel, George H. Fraser and Richard A. Franzke, Portland.
Before ROSSMAN, J., presiding, and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
ROSSMAN, J.
This is an appeal by the plaintiff Donald W. Wimer from a judgment of the circuit court which dismissed this action. The latter sought recovery of damages from the defendant, a physician, upon charges that while the plaintiff was under the defendant's professional care for an injury to his right wrist the defendant, through negligent treatment, inflicted new injuries upon the plaintiff. The defendant's answer denied all allegations of negligence and averred that after the plaintiff was injured in an industrial accident while in the employ of an employer subject to the *27 Workmen's Compensation Act the Industrial Accident Commission engaged the defendant's services in behalf of the plaintiff. The answer alleged that August 17, 1960, the Commission "granted plaintiff a permanent partial disability award" and that he accepted it. Continuing, the answer alleged:
The answer prayed that plaintiff take nothing by his complaint and "that plaintiff's action be dismissed." The reply admitted that the plaintiff was injured while in the employ of the Johns-Manville Corporation and that he received an award under the Workmen's Compensation Act on August 17, 1960. Virtually all other averments of the answer are denied.
Stipulated facts which the parties submitted to the trial court reveal the following. February 17, 1959, the plaintiff, while in the employ of the Johns-Manville Corporation, sustained an accidental injury to his right wrist. The plaintiff's employer was subject to the Workmen's Compensation Act (hereafter termed "the Act") and was a contributor to the State Industrial Accident Fund. Following the injury plaintiff filed with the State Industrial Accident Commission (hereafter "the Commission") an application for benefits under the Act and consulted the defendant for the purpose of receiving treatment for his injury. It was during the course of this treatment that the alleged negligence which, it is claimed, resulted in a permanent disability occurred. Plaintiff received benefits *28 under the Act until August 12, 1960, at which time the Commission made an award for permanent partial disability which was based upon an evaluation of plaintiff's condition as of that date. The Commission also reimbursed the defendant physician for his services to the plaintiff.
February 8, 1961, the plaintiff filed this action for damages. As an affirmative defense the defendant contended that since the plaintiff filed for and accepted a final award for the injury under the Act, he is barred from maintaining the action. The plaintiff denies that the award he accepted was for the injuries alleged to have arisen from the defendant's negligent treatment. He contends that the award was solely for the consequences of the original injury. The issue which the parties submitted to the trial court and which must be decided upon this appeal is: after the Commission has made and the injured workman has accepted a final award for injury incurred in the course of his employment, may he recover from a negligent physician damages for the aggravation of the original injury.
ORS 656.154 (1) provides:
*29 From ORS 656.312 we quote as follows:
It will be noticed that those two sections of our laws offer no interference to the maintenance of an action of this character if (1) the defendant is "a third person" and (2) he was not "at the time of the injury, on premises over which he had joint supervision and control" with the Johns-Manville Corporation and was not "an employer subject to ORS 656.002 to 656.590." No one contends that the defendant had "joint supervision and control" with the Johns-Manville Corporation over the premises where the plaintiff was injured if we deem the premises as either the place where the original injury occurred (the Johns-Manville plant) or the place where the aggravation occurred (the defendant's medical office). Nor does any one contend that the defendant was "an employer subject" to the Workmen's Compensation Act.
ORS 656.316 states:
It is not claimed that the Commission made any effort to require the plaintiff to make an election. It is apparent, of course, that the plaintiff instituted this action and that the latter is an effort "to recover damages" as that term is employed in ORS 656.312, supra.
The defendant contends that a physician whose negligence results in aggravation of the original injury is not a "third person" within the purview of the statute and that in any event the plaintiff's acceptance from the Commission of the final award for his injury constituted an election to take the award in lieu of any damages he may have been entitled to. He concludes that the "election" bars plaintiff from maintaining this action.
1, 2. In the absence of a clear legislative intent to the contrary, this court is bound to give to the words of a statute their natural and ordinary meaning. Blalock v. City of Portland, 206 Or 74, 291 P2d 218 (1955). It is a maxim so well established as to require no citation of authority that a statute is to be construed as a whole and that effect must be given to the overall policy which it is intended to promote.
ORS 656.004, which is the preamble to our workmen's compensation law, reveals in unmistakable language that the purpose of the Act is to define the rights and liabilities of employers and their employees who have sustained injuries in the course of their employment. That section also makes it clear that the degree of certainty brought by the Act into this phase of industrial relations was intended to benefit the *31 public as a whole by reducing the volume of litigation and thus diminish the cost to the taxpayer. It is only in this role as taxpayers that third persons, that is, persons other than the employer and his injured employee, are designated as beneficiaries under the Act.
We quote the following from Schumacher v. Leslie, 360 Mo 1238, 232 SW2d 913 (1950):
We consider this conclusion sound and applicable to our Act. Nothing in the Act persuades us that we would be justified in placing upon the term "third person" a meaning other than the usual one. The Act is intended to govern those who stand to each other in the relationship of employer and employee. All others are third persons to this relationship and, unless specifically referred to in the Act, have neither benefits nor liabilities thereunder. See, generally, Note, Malpractice Actions and Workmen's Compensation, 36 Virginia Law Review 781; Seaton v. United States Rubber Co., 223 Ind. 404, 61 NE2d 177 (1945); Baker v. Wycoff, 95 Utah 199, 79 P2d 77 (1938); Suter, Malpractice and the Workmen's Compensation Acts, 17 Insurance Counsel Journal 259; Leidy, Malpractice Actions and Compensation Acts, 29 Michigan Law Review 568. As was said in Fauver v. Bell, 192 Va 518, 65 SE2d 575:
At common law an injured employee whose injury had been aggravated through the negligence of a physician could tack onto his claim for damages against his employer his claim against the physician. It was reasoned that the physician's negligence was a proximate result of the original injury. But the law also recognized the workman's right to keep the two claims separate and to sue the employer for his negligence and the physician for the consequences of his malpractice. Pollock on Torts (13th ed.) pp 485-487; Suter, Malpractice and the Workmen's Compensation Acts, supra; Leidy, Malpractice Actions and Compensation Acts, supra; Virginia Law Review, Malpractice Actions and Workmen's Compensation, supra.
The following is taken from Industrial Commission v. Standard Insurance Co., 370 P2d 156 (1962):
We have noted that at common law an injured workman in a situation such as the one before us had two causes of action: one against his employer and the other against the negligent physician. The Act confers upon the employer immunity from an action for *33 damages. Nowhere does it confer upon the negligent physician a similar immunity. It must be concluded, then, that the injured workman's cause of action against the physician remains.
A further basis for this conclusion appears from the provisions of ORS 656.154 (1) which have been set forth above. That section specifically confers upon two classes of third parties immunity from suit (1) third persons in the same employ as the injured employee and (2) "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 the Act. The fact that the legislature specifically conferred immunity upon two classes of third persons warrants an inference that it intended all other third persons to be subject to the general terms of the section which provide for actions by injured workmen against third parties. 2 Sutherland, Statutory Construction, § 4915, p 412.
3. We conclude that a physician in the position of the defendant in the case before us is a third person within the purview of the Act and as such is amenable to an action for damages by an injured workman.
We have noted that the defendant also contends that regardless of whether a person in his position be deemed a third person, the plaintiff is barred from proceeding with this action as a consequence of his acceptance of a final award for his injury from the Commission. In support of this contention defendant relies principally upon the cases of McDonough v. National Hospital Association, 134 Or 451, 294 P 351 (1930) and Williams v. Dale, 139 Or 105, 8 P2d 578 (1932). The McDonough decision met with partial *34 concurrence; the Williams case had a dissent. The Williams case, which is almost indistinguishable on its facts from the case at bar, held that when an injured workman accepted compensation for the whole injury, the aggravation by a negligent physician was a part of the original injury and the workman could not recover damages from the physician. In arriving at its result in the Williams case, the court proceeded under the assumption that the acceptance by the workman of a final award under the Act constituted an election and that the workman thereby waived his cause of action against the negligent physician. We proceed to consider whether such an assumption may reasonably be made under existing statutes.
ORS 656.314 says:
ORS 656.318 says:
*35 ORS 656.320 provides that an election by the injured workman not to proceed against the third party operates as an assignment of his cause of action against that person to the Commission.
ORS 656.324 (2) states:
Permeating the above-quoted sections of the Act is the assumption that the injured workman would be receiving or have received benefits under the Act prior to the institution of an action for damages against a third person. In commenting upon these and related sections, Justice McALLISTER (now Chief Justice McALLISTER) in the case of Manke v. Nehalem Logging Co., 211 Or 211, 301 P2d 192, 315 P2d 539, said on behalf of this court:
We adhere to this cogent statement of the law under the Act. The right to elect between remedies was granted the injured workman as a benefit rather than a burden. To thrust upon the average worker the dilemma of choosing between damages which might take several months or years to realize and the certain payments to be received under the Act would convert the benefit into a burden. In some cases the evidence of the physician's negligence might not manifest itself until some time after a final award had been accepted.
4. We do not deem the acceptance by an injured workman of benefits under the Act to be an election not to proceed against a third party in this instance a physician. A review of the McDonough decision in 13 Oregon Law Review 72 stated:
We have noted that the McDonough and Williams cases proceeded under an assumption that an acceptance by the workman of a final award under the act constituted an election and that the workman thereby waived his cause of action against the negligent physician. Whatever merits that assumption may have had under the Oregon Code of 1930, under which those cases were decided, have vanished in light of subsequent alterations to the Act. See, generally, Moore, *37 Third Party Recovery from Malpracticing Physicians, 2 Willamette Law Journal 48. Such assumption is clearly indefensible under the present statute. The material change in the subsequent legislation renders the McDonough and Williams cases inapplicable to the one now at bar.
5. Although we have mentioned several sections of our Workmen's Compensation Act, we wish to make it clear that plaintiff did not derive the cause of action mentioned in his complaint from any provision of that act. His cause of action came to him from the common law, and our purpose in mentioning the Workmen's Compensation Act has been to show that through amendments of it since the announcements of the holdings in McDonough v. National Hospital Association, supra, and Williams v. Dale, supra, those decisions no longer prevent an injured workman who is the victim of malpractice from enforcing his cause of action against the physician whose negligence injured him.
We are aware of no reason why a negligent physician should not be held liable for his failure to have acted with reasonable care. The defendant would place the burden for a physician's negligence upon the Commission and through the Commission upon the employer. We do not believe that the Act contemplates this result.
The plaintiff is entitled to proceed with this action.
The judgment of the circuit court is reversed and the cause is remanded for proceedings not inconsistent with this opinion. | ea40428714d69d6d526e9a8009f3e1492ee16abda889c20c10cba88d9b69219f | 1963-07-15T00:00:00Z |
6f6a5d77-08a8-4730-9437-046cfc9e6680 | In Re Bernard Jolles | 235 Or. 262, 383 P.2d 388 | null | oregon | Oregon Supreme Court | Petition allowed June 19, 1963.
Petition for rehearing denied September 4, 1963.
R.W. Nahstoll, Portland, argued the cause for petitioner. With him on the briefs were Allan Hart and Harlow F. Lenon, Portland.
Hugh L. Biggs and Howard I. Bobbitt, Portland, argued the cause and filed a brief for Oregon State Bar.
*263 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL and GOODWIN, Justices.
PETITION ALLOWED.
O'CONNELL, J.
Bernard Jolles, having passed the bar examination has made application for admission to the Oregon State Bar. The Board of Bar Examiners has recommended that his application be denied on the ground that Jolles failed to establish that he is a person of good moral character which is a requisite for admission. ORS 9.220 (2). The Board's recommendation is based upon the following grounds:
The facts are as follows:[1]
"Jolles is [34] years old. He was born and raised in New York City, educated in the public schools of New York and graduated from high school in 1946. His parents had immigrated from the Poland-Austria area of Eastern Europe. Through his parents and special schooling he was exposed at an early age to *264 certain socialistic and so-called left-wing principles and beliefs. Neither his parents nor any other members of his immediate family were Communist Party members, and his parents opposed his joining the Communist Party (hereinafter also referred to as the `Party'). * * * [His] father was unemployed during part of the early depression years. In the latter part of the 1930's * * * [his] father opened a lunch-counter business which he operated successfully for many years.
"Jolles was honorably discharged from the Navy after serving 22 months in 1946 and 1947. He attended New York University from 1948-51 from which he received a bachelor's degree in 1951.
"While in school, Jolles worked at a variety of part-time and summer-time jobs and from time-to-time assisted his father in operating the lunch stand. Following graduation from New York University in 1951 he was employed as an assistant buyer in the New York garment industry until 1953 when, for reasons hereinafter explained, he went to work on the waterfront as a longshoreman.
"He was a longshoreman until 1957 when he came to Oregon. * * * [He worked] first at Meier & Frank's [department store] for a short period before entering the employ of the Portland law firm of Anderson, Franklin, Jones & Olsen.
"Jolles joined the Communist Party in 1949. * * * [At that time he was 21 years of age and a] student at New York University. He was a member of two different neighborhood clubs * * * [referred to in the Party as] `cells' * * *. [The first cell was an adult club. The second was a youth group of which *265 Jolles became chairman. He was also a member of a Communist-front organization designed to lure other young people into the Communist Party.]
"In 1953, he voluntarily left employment in the garment industry to become a longshoreman on the New York waterfront in order further to assist the Party. He gives as his reason for the change of employment his belief that if any change toward socialism was to be made in our society, it would be brought about by the industrial worker in the basic industries. He wanted to further the cause of the workers and the Party by being directly identified with them.
"Financial betterment, either immediately or in the future, was not one of Jolles' purposes in going on the waterfront.
"In 1953 he became affiliated with a Party waterfront club of about four members which was part of a larger group of * * * [less than 20] members known as the Waterfront Section Committee. He became Chairman of his club in 1954, and ultimately became Organizational Secretary * * * of the Section, which had Party responsibility for [propagandizing] approximately 10,000 longshoremen who worked on the Brooklyn waterfront. He also worked and met with regional organizers and officials, although he held no regional position or office (the region involved included the entire New York waterfront [and was not in a policy-making position]).
"Jolles' activities while a Party member included * * * [attending Party] meetings, generally weekly; participating in support of candidates for public office endorsed by the Party; participating in demonstrations * * * [in accordance with] Party orders or directions including picketing of the White House in connection with the Rosenberg convictions; dissemination *266 of Party-prepared and sponsored literature and leaflets; * * * [the writing of] articles in, and otherwise assisting in preparation and circulation of, The Dockers' News, a Party waterfront publication; attending the Party-supported Thomas Jefferson School of Social Studies for about a year, taking courses in [Marxist] economic theory; and attempting to persuade others to join the Party or to support its causes. His social life was also centered around his Party associates.
"Jolles admitted an understanding and awareness of Party philosophy, principles and aims. He testified that the Party's position in the United States with regard to force and violence, as he understood it and the position to which he subscribed, was that resort to force would be justified and used if a capitalistic minority resisted the efforts and frustrated the will of the majority to establish socialism.
"* * * Jolles * * * conceal[ed] his membership as a Party member from those who were not Party members. For example, he used the name `Eddie' at Party [meetings] to minimize the risk of identification. Party meetings were secret and held in private homes. When he went on the waterfront in 1953, he ceased subscribing to Communist literature to further reduce the possibility of being exposed as a Communist or identified with the movement. During his eight active years of Party affiliation, the Party was not an open political party in New York. Also, during this period the United States was involved in the Berlin blockade[*] and Korean War, and the Russian intervention in Hungary took place.
*267 "Jolles testified that he openly disassociated himself with and resigned from the Party in May of 1957 at a meeting of the Section of which he was Organizational Secretary. He testified that in the preceding year he had become disillusioned about the Party and its objectives, and had re-examined the Party position and his own beliefs. He cited Premier Khrushchev's speech denouncing Stalin along with the Russian intervention in Hungary, as the incidents which motivated his personal re-examination of the Party and ultimate disassociation. His wife testified that his motivating purposes for disassociation were [largely] economic, domestic and personal. His Party affiliation, and especially his waterfront employment, had caused family difficulties because of the economic sacrifice imposed and the time required away from home.
"* * * [Jolles was] requested * * * by counsel for the Bar and by the Board members * * * to disclose the names of any person familiar from personal knowledge with Jolles' activities while in the Party or who could confirm from personal knowledge that he did in fact openly resign from the Party in May of 1957. Jolles refused.
"He recognized that the Board had no other direct way of corroborating his testimony as to some of his Party activities or as to his disassociation.
"Jolles admitted at the hearing in answer to a direct question that he knowingly and deliberately gave false or incomplete information under oath to the Waterfront Commission of New York Harbor and the United States Coast Guard regarding his membership *268 in the Communist Party [in order] to obtain access to the New York waterfront area to further the Party's cause.
"A dock pass from the Waterfront Commission and a Coast Guard permit were required by law in order to obtain such employment. The Coast Guard requirement was a part of the internal security program during the Korean War to keep Communists out of critical waterfront areas. False answers were necessary for Jolles to gain access to the waterfront.
"In his application to the Waterfront Commission, Jolles answered `No' to the following question.
"The Coast Guard refused as a matter of policy to disclose any information to the Board, although authorized to do so by Jolles.[**] That Jolles' Coast Guard application was false in part was admitted and accepted by Jolles and his counsel throughout the February-March hearings.
"The application form for admission to Northwestern College of Law [(]either before or immediately after his asserted disassociation from the Party and *269 while still living in New York City[)], includes the following:
"* * * [He admitted] that a full, complete and candid response to the application would have required disclosure of his Communist Party affiliation and activities * * *. He gave as his reasons * * * [for failing to make the disclosure his] desire to first establish himself and make a new life without disclosing the past * * * [and his] desire not to make a public record of his Party membership until or unless necessary to do so. He indicated his awareness that disclosure would have to be made at such time as he might seek admission to a state bar, but [he felt] that it was always possible he would not complete the law study * * * [in which case] disclosure [would not be] * * * necessary. He also admitted that his non-disclosure was due in part to fear that he might not be admitted to law school [but that this was not the basic consideration].
"Jolles also filed an application for admission to Brooklyn Law School at approximately the same time *270 that he applied to Northwestern. His application had been destroyed by the school. The form of application used by the school contains the following question:
Jolles testified that in his state of mind at that time, he probably answered the question `no.'
"At the August, 1961 hearing, Jolles testified that, for the reasons summarized above in connection with his Northwestern application, he thought he falsified his application to New York University Law School filed in the spring of 1957 by denying or otherwise failing to disclose his past Party Membership. In fact, the New York University application contained no question or statement requiring disclosure. * * * * *
"The first disclosure made by Jolles to anyone in Oregon of his past Party membership was to Robert E. Jones, one of the partners in the firm by whom he was employed. It was made in the spring of 1959, about a year and a half after he had accepted employment. * * * Jones, * * * testified that as he became better acquainted with Jolles, he became somewhat suspicious of his background and thought there was a good chance it included affiliation with Communism. The record continues:
"Jolles did not disclose his Party affiliation to representatives of Northwestern College of Law until confronted with the question in the spring of 1961 by Northwestern representatives who had learned of it from other sources. The disclosure to Northwestern came just before graduation and after he had been selected as valedictorian by his classmates. Under the circumstances, Jolles withdrew as valedictorian."
Jolles and his brother made efforts to locate former associates in the Communist Party to determine if they were prepared to consent to disclosure of their identity. They contacted four persons in New York and California. One, a cousin, forwarded an affidavit corroborating Jolles' testimony concerning his break with the party. The others refused to allow their names to be used. One sent in a letter explaining why his name should not be used. Jolles called him with his attorney listening to the conversation and the witness agreed to meet anonymously with the Board, but the Board declined to do so.
1. An applicant for admission to the bar of this state has the burden of proving that he is "a person of good moral character."[2] Six members of the Board were of the opinion that Jolles had not met this burden of proof; three members were of the opinion that he had.
The record clearly discloses misconduct which would *272 be sufficient to disqualify a person for membership in the Oregon State Bar. The falsification of the application for a dock pass would, in itself, be sufficient to justify disqualification for such membership. Jolles concedes as much. But he takes the position that his moral delinquency in this respect grew out of his acceptance of communist doctrine (which regards deception as an acceptable device for the attainment of communist ends) and that he is no longer subject to this deluding influence of communism.
It is not clear whether the same influence was at work when Jolles filed an application for admission to Northwestern College of Law in the spring of 1957. If at that time he had disassociated himself from the Communist Party (which seems to be the case), his failure to disclose his previous affiliation with the party would have to be explained upon a ground other than party loyalty. The application form did not make a direct inquiry as to one's conduct while holding membership in a subversive organization. It called for the disclosure of "any circumstance in his life that might be considered a reflection on his character, whether deemed justified or not." Although the question is somewhat ambiguous as to the type of past conduct one should disclose, Jolles candidly admitted that he regarded the question as possibly calling for a disclosure of his previous conduct in connection with the Communist Party. He explained his failure to disclose as follows:
Jolles further testified as follows:
Jolles voluntarily disclosed his past membership in the Communist Party when he made application to *275 take the bar examination, and later he disclosed the facts relating to filling out the application for a dock pass and the application for admission to Northwestern Law School. This lends support to Jolles' assertion that his failure to disclose his Communist Party affiliation in his law school application was a temporary expedient only and that he ultimately intended to reveal that fact if and when he made application for permission to take the Oregon State Bar examination.
Although his initial failure to disclose the information was improper, we feel that in light of his subsequent forthrightness in voluntarily disclosing the information there was no intent to practice deception in gaining admission to the bar.
In petitioning this court for the privilege to practice law in this state Jolles admits his past misconduct and pleads reformation of character. Reformation is a very difficult matter for a petitioner to prove and for us to judge because evidence of morality is not ordinarily adducible in positive form. Generally, proof must be made through the appraisal of those with whom the petitioner has worked and lived and who are in a position to see how he makes choices calling for moral decisions. The petitioner offered this proof through the testimony of the members of the law firm where he was employed and through the testimony of others who were acquainted with him. Each of his employers emphatically asserted that Jolles was a person of good moral character. Others who associated with him concurred in that appraisal.
Upon the basis of the evidence the minority of the Board concluded "that Jolles severed his Communist Party affiliation, is no longer a member of the Party and that he now rejects its principles and practices *276 and regrets his own wrongful actions. Based on this belief and since his detrimental conduct [and wrongful actions] were related to his Communist Party affiliation, they do not believe that such conduct or actions will be repeated. In the light of his conduct during the past five years and from the testimony of those who have associated with him during that period of time, the minority members of the Board feel that Jolles does now possess the requisite moral character for admission."
The majority of the Board found the evidence of Jolles' rehabilitation unconvincing. Further, they were of the opinion that Jolles' refusal to disclose the names of the persons with whom he was associated in the Communist Party so as to enable the Board to determine whether Jolles openly resigned from the party as he contended he did, was ground for adverse recommendation.
2. After a thorough examination of the record in this case we are of the opinion that there is sufficient evidence of Jolles' present good moral character to qualify him for membership in the Oregon State Bar. Our conclusion rests principally upon the testimony of his employers, who are three highly respected members of the bar. It would serve no good purpose to set out in detail their declarations of confidence in the integrity of Jolles and the grounds upon which it is based. We are further impressed by the forthrightness with which Jolles presented his case to the Board and to this court. Jolles' refusal to disclose the names of his former colleagues in the Communist Party may have obstructed the Board's efforts to verify Jolles' assertion that he openly resigned from the party. The likelihood of establishing the truth or falsity of his assertion by interviewing his former associates is not *277 very great. But assuming that something of value might have been disclosed through such interviews, we believe that Jolles' refusal to disclose the names of his former colleagues for fear that it would harm them was sincere and that it should not be used as a basis for denying him the privilege of practicing law in Oregon. This sincerity is pointed up by his efforts to obtain permission to use their names and in lieu thereof to arrange anonymous interviews with the Board.
We are convinced that Jolles is free from the Communist influences which distorted his moral judgment and that he is now a person of good moral character. Having passed the bar examination he is eligible for admission to the Oregon State Bar upon filing the prescribed oath.
PERRY, J., dissenting.
After serious consideration of the personal loss, and perhaps personal injustice, which could result to the petitioner from a denial of his application, and my duties as a member of this court intrusted in such matters with the welfare of the public and the profession, I am compelled to disagree with the conclusion reached by the majority.
The fact that petitioner was at one time a card-carrying member of the Communist party carries no weight in my thinking, except insofar as his membership therein at the time of joining and his actions in connection therewith reflect upon his present moral character.
The majority point out that the petitioner is equipped with excellent mental faculties, therefore no reason seems to exist for any belief that he did not know the moral import of his actions. In fact, with *278 relation to a falsification to the Coast Guard, to which I will refer later, he stated, "Yes, I felt I had a code of morals even while I was in the Party. However, I don't mean to suggest that it was consistent with that personal code of morals to falsify Coast Guard affidavit."
As stated by the majority, petitioner entered the United States Navy in 1946. It is common knowledge that one who enters the armed forces of this country takes an oath to support the Constitution of the United States, yet within two years after his discharge from the Navy he joined an organization whose reputed purpose was the overthrow of that Constitution. He must have known, with the publicity existing at that time, that his membership in the organization was inimicable to respect for the laws of this country and the rights of the people of this country as guaranteed by that Constitution. His efforts to conceal his connection with the organization at that time clearly disclose his actions would not stand the light of truth.
That petitioner once believed in the doctrine of rule by might instead of rule by law is found in his statement that he believed force was justified if necessary to achieve a political goal.
The petitioner's greatest lack of moral character is disclosed in the revelation of a deliberate falsehood perpetrated against this country when at a time this country, as it still is, was engaged in what has been termed a cold war with Russia and Communist China.
For security purposes applicants for longshoreman work in New York harbor were required to make application to the Waterfront Commission of that harbor. In this application was this question, as set out in the majority opinion: "Do you knowingly or wilfully advocate the desirability of overthrowing or destroying *279 the Government of the United States by force or violence, or are you a member of a group which advocates such desirability, knowing the purposes of such group include such advocacy?", the petitioner answered in the negative.
The majority opinion does not comment upon this falsehood. In my opinion this is an act which clearly shows a lack of moral stamina.
The petitioner admitted he knew his action was wrong, yet knowing this he did the act, and salved his own conscience with the thought that others have before acted falsely. He states he did no act of sabotage, but this very act was an attempt to sabotage his government's lawful purpose.
The practice of law is a privilege not a right. In re Weinstein, 150 Or 1, 6, 42 P2d 744; Re Application of Jesse Crum, 103 Or 296, 204 P 948. A lawyer is a trusted officer of the courts, and into his hands are intrusted the client's innermost confidences, his valued possessions, and on occasion, even his life itself.
Good moral character is difficult of exact definition, but for the lawyer its elements must include simple honesty, fairness, respect for the rights of others, and the laws of the state and nation. In my opinion moral character is disclosed in past deeds, not in protestations of reform when a desired purpose is to be gained.
The entire burden of the majority's opinion is that the petitioner has reformed. In what manner, the opinion is unclear. If they mean he has changed his views as to the values of communism as opposed to democracy, that is well and good, but the real question is whether his moral fiber has changed. He stated he had moral values above those taught by the Communists, but his own conscious values did not prevail. *280 His own moral values did not stand the test in the past, and since then, have not been tested. Can it then be said, since he has abandoned his communistic views his moral fiber is stronger than before? Evidence which supplies merely a belief of reformation of moral views deserves consideration, but it does not, in my opinion, meet the burden of establishing proof of good moral character.
The fact that one guilty of misconduct which would clearly disqualify him for admission to the Bar may establish that he has subsequently had a clean record for several years would not necessarily justify this court in concluding that his moral fiber would not again break under sufficient temptation. So, in the matter before us, can we say without doubt in our minds that the petitioner will not, if endowed with fervor for a cause, violate his trust as a lawyer to uphold the laws of this state and nation, or give false testimony, though knowing it morally wrong?
When petitioner applied for admission to law school he continued to conceal his unlawful communist activities. In fact, petitioner did not at any time voluntarily make a clean breast of his hidden activities. It was not until a member of the law firm by which petitioner was employed confronted him with a direct question which could not be evaded that petitioner finally disclosed that he had been a communist. This continued deception deepens the doubt as to petitioner's reformation, even in his beliefs.
I realize the efforts which the petitioner has put forth to prepare for the practice of law, and I have the greatest respect and admiration for the judgment of those who in anywise sponsored his cause, but to me it is clear the petitioner has failed to meet the *281 burden of showing good moral character for the practice of law, and this court ought not to permit the people of this state to be used as a proving ground for the purpose of determining whether or not there has been reformation.
For the reasons given, I dissent.
Mr. Chief Justice McALLISTER joins in this dissent.
[1] The Board's summary of the facts is adopted with minor changes.
[*] "His membership covered a part of the period of the blockade. The Berlin blockade and resulting airlift commenced November 6, 1948 and terminated October 4, 1949. Jolles stated that he joined the party in the fall of 1949."
[**] "Attempts by the Board in the summer of 1961 to obtain information regarding Jolles' Communist activities from records, if any, of the Federal Bureau of Investigation had also been unsuccessful."
[2] ORS 9.220 provides that:
"An applicant for admission as attorney must apply to the Supreme Court and show that he or she:
"* * * * *
"(2) Is a person of good moral character, which may be proved by any evidence satisfactory to the court." | 8924bcdf6941436f3a9ef24b0ca3908e19231f426f91497f586265721658dd7a | 1963-06-19T00:00:00Z |
c9300f78-0ec5-4a35-81e6-4dcbf0b7f3a0 | State v. Elliott | 234 Or. 522, 383 P.2d 382 | null | oregon | Oregon Supreme Court | Reversed with instructions for new trial June 19, 1963.
*523 Leo Levenson, Portland, argued the cause and filed a brief for appellant.
George Van Hoomissen, District Attorney for Multnomah County, argued the cause and filed a brief for respondent.
*524 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED WITH INSTRUCTIONS FOR NEW TRIAL.
PERRY, J.
The defendant was convicted of the crime of manslaughter by abortion, and appeals.
The evidence discloses that a teen-age girl became pregnant. There is evidence from which the jury could have found that she became mentally overwrought by her condition and on two occasions attempted self-destruction. There is further evidence that the defendant performed the abortion.
1. The defendant contends that the indictment fails to state a crime and therefore the court erred in admitting any evidence, and, in failing to sustain his motion for a directed verdict of acquittal. The defendant's contention is based upon the proposition that it is necessary to allege in the indictment that the defendant was not a licensed medical or osteopathic physician.
Manslaughter by abortion is defined by ORS 163.060 as follows:
In State of Oregon v. Buck, 200 Or 87, 262 P2d 495, this court held that where the indictment charged a duly licensed physician with manslaughter by abortion it was necessary to negative the fact that the abortion *525 was performed in accordance with the provisions of ORS 677.190 (2), i.e., to preserve the health of the expectant mother. Though two separate acts, they each dealt with the same subject matter and were to be considered in pari materia.
The defendant herein does not contend that the indictment alleges he is a doctor or that the evidence will disclose that he is a member of the medical profession or an osteopathic physician, but only that since this court has construed the Medical and Osteopathic Acts as engrafting an exception into the Manslaughter by Abortion Act, the exception must be negatived in any indictment charging this crime.
The rule in this state as to the necessity of negativing exceptions or provisos in criminal indictments was early set out by Mr. Justice ROBERT S. BEAN in the case of State v. Tamler & Polly, 19 Or 528, 530, 25 P 71, 9 LRA, as follows:
And Mr. Justice LUSK, after setting forth the above rule in State v. Schriber, 185 Or 615, 205 P2d 149, noted (185 Or 630), "There has been no departure in the decisions of this court from the principles thus enunciated."
It is clear that the Medical Practice Act is not a material part of the description of the offense, but is simply a limitation upon the application of the provisions of the Criminal Act as to Medical and Osteopathic phyiscians, and therefore, unless a person is *526 charged as a medical or osteopathic physician in the indictment, the exception, as to him, is a matter of defense and need not be alleged.
In the case of State of Oregon v. Buck, supra, where the defendant was indicted as a medical doctor, we therefore held without discussion that it was necessary in that indictment to allege that the abortion was not performed to preserve the health of the woman. The state, having alleged defendant was a doctor, the defendant could have entered a plea of guilty and still not have been guilty of the crime as charged, since the abortion could have been performed to preserve health as distinguished from saving life. In an indictment "the conclusions to which accused is entitled under the presumption of innocence should be excluded. * * *" 42 CJS 996, Indictments and Informations, § 116.
The trial court correctly denied defendant's motion.
2. The defendant also contends that since the Medical and Osteopathic Acts as to abortion have been construed in pari materia by this court the Act now violates the 14th Amendment to the Federal Constitution, and Article I, Section 20, and Article IV, Section 23(2) of the Oregon Constitution. The defendant's arguments are so lacking in merit that we decline to consider them, except to state that, construing the acts together, they do not violate any requirements or provisions of either the state or federal constitutions.
3, 4. The trial court instructed the jury, "The law conclusively presumes a malicious and guilty intent from the deliberate commission of any unlawful act." The defendant properly excepted to the instruction on the basis that the presumption of criminal intent is not conclusive, but rebuttable. A conclusive presumption *527 is not an evidentiary rule, but a rule of substantive law. It requires a certain result from established facts. Farnsworth v. Hazelett, 197 Iowa 1367, 199 NW 410, 38 ALR 814; United Life & Accident v. Prostic, 169 Md 535, 182 A 421.
5. No citation of authority is necessary for the statement that in a criminal case in this jurisdiction a defendant is presumed to be innocent of the offense charged and every necessary element thereof until his guilt is established beyond a reasonable doubt. Doubt is only removed when a jury returns a verdict of guilty, for the presumption of innocence is a disputable question which goes with the jury into the jury room for consideration. State v. Rosasco, 103 Or 343, 205 P 290.
6. In State of Oregon v. Nodine, 198 Or 679, 259 P2d 1056, this court pointed out that the statutory conclusive presumption of "`an intent to murder is conclusively presumed from the deliberate use of a deadly weapon, causing death within a year, * * *'". ORS 41.350 (1) should not be given as an instruction of law if there is any evidence from which the jury could find the intent to kill did not exist. We said, "It is certainly illogical and apt to produce confusion to tell a jury in one breath that there is a conclusive presumption of an intent to kill and in the next to submit that question to the jury as one of fact for their determination." (198 Or 695). We would now add, that since the presumption of innocence is a species of evidence, instructions on conclusive presumptions as to intent should never be given in a criminal case. We also point out that the instruction as given is not the conclusive presumption provided by statute.
The only rule of law which resembles the instruction given is the rebuttable presumption that "An unlawful act was done with an unlawful intent." ORS 41.360 (2). Since the instruction given was erroneous, the question presented is whether or not it was prejudicial.
7. The statute under which the defendant was prosecuted and read to the jury is as follows:
From the statute it is clear that there is to be established for conviction a specific intent to destroy the unborn child, and no intent to preserve the life of the mother. The gist, or main thrust of the offense is, then, the acts done intentionally to cause the death of the unborn child. The acts done intentionally are excused by the law if they are done to preserve the life of the mother. The jury is therefore called upon to reach a conclusion as to two specific intents; first, the intent to kill the unborn child, and second, the intent of that act with respect to the life of the mother.
8. Intent is an operation of the mind, and this subjective fact is seldom susceptible of direct proof. This subjective fact is usually established by a consideration of objective facts, and from these objective facts an *529 ultimate conclusion is drawn. See Words and Phrases, Vol. 22, Perm. Ed., Intent.
In this case there is direct evidence of the act of the defendant in inserting instruments into the uterus of the girl and destroying the fetus. There could be no doubt but the use of instruments was a deliberate act to destroy the fetus. The objective facts relating to the defendant's intentions as they relate to the purpose insofar as the life of the girl is concerned are not so conclusive.
9. A doctor, as a witness for the state, examined the girl after she was pregnant for the purpose of caring for her injuries after she had jumped from a moving automobile. He testified that her physical condition was good, and while evidence of good health offered by the state is sufficient to raise the inference and will sustain the fact that the abortion was not necessary to save the life of the mother (1 Am Jur 150, Abortion, § 52), this does not overcome the presumption of innocence until the inference is acted upon by the jury.
It would be presumptuous on our part to assume that a jury of laymen would understand that the instruction as given had no application to the facts in this case. It seems more probable that jurors would believe that it was applicable or it would not have been given. And further, that having been given, it should be applied to the facts of the case as instructed by the court. Since the instruction relates to the state of mind or intent with which an act is done, and since the only overt act of the defendant was the insertion of the instruments into the body of the girl, the jury could well believe that this act was unlawful, and conclusively ended further inquiry into the motive or intent of the defendant in performing this wrongful act. We *530 cannot therefore say that the giving of this abstract statement of erroneous law was not prejudicial.
The defendant also contends there were errors committed by the trial court with reference to the argument of the Assistant District Attorney to the jury. We have examined these contentions and find no merit in them.
The judgment is reversed for a new trial.
O'CONNELL, J., dissenting.
The trial court instructed the jury that, "The law conclusively presumes a malicious and guilty intent from the deliberate commission of an unlawful act."[1] The majority opinion holds that the giving of this instruction was reversible error. I disagree.
I shall assume that after State of Oregon v. Nodine, 198 Or 679, 259 P2d 1056 (1953) an instruction in terms of ORS 41.350 (2) would not be proper in a case in which the defendant is charged with manslaughter.[2] But I do not believe that defendant in the present case was harmed by the instruction. The instruction, in effect, tells the jury that if one deliberately *531 commits an unlawful act he is conclusively presumed to have a malicious and guilty intent. Applied to the facts of the present case the instruction would be translated by the members of the jury to mean that if they found that defendant deliberately committed the act made unlawful under ORS 163.060, they would be required to assume that he had the requisite criminal intent. It must be conceded that malice is not an essential element of the crime defined in ORS 163.060 and to this extent the instruction is abstract. But that fact does not prejudice defendant under the circumstances of this case.
The trial court clearly stated the elements of the crime which were necessary to make defendant's conduct "unlawful."[3] These instructions made it clear that the jury could not find defendant guilty unless he acted with the intent to destroy the child and unless the operation was not necessary to preserve the mother's life. Once the jury found these elements of the crime to exist defendant's guilt would be established. The necessary criminal intent would flow from the proof of the elements listed in the statute. It is *532 immaterial whether that intent is described to the jury as "malicious and guilty intent" or simply as a "guilty intent."
The other instructions informed the jury that "the law presumes the defendant is innocent" and that "it is necessary for the State to prove beyond a reasonable doubt each and every material allegation in the indictment, and the material elements constituting this crime" (setting them out as indicated in the margin at note 2).
The instruction which is the basis for reversal was a part of an extended explanation of presumptions and inferences.[4] The instruction, taken as a whole, was not unfavorable to defendant.
There was no reversible error. The judgment should be affirmed.
[1] The instruction was a partial adoption of ORS 41.350 (2), which reads:
"The following presumptions, and no others, are conclusive:
"* * * * *
"(2) A malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another."
[2] Although State of Oregon v. Nodine, supra, involved an instruction based upon ORS 41.350 (1), the reasoning would seem to render improper the giving of an instruction in terms of ORS 41.350 (2) where manslaughter is charged. The instruction in the present case would, of course, be objectionable upon the further ground that it failed to fully state the presumption called for in ORS 41.350 (2) since it omitted the language "for the purpose of injuring another."
[3] The instruction on this point was as follows:
"The material allegations and elements in this case are these:
"First, that the defendant, ROSS HILLS ELLIOTT, did unlawfully and feloniously use and employ certain instruments in and upon the body and womb of the said Sharon Lee Schaub.
"Second, that Sharon Lee Schaub was at that time pregnant with child.
"Third, that the defendant, ROSS HILLS ELLIOTT, did at that time intend to destroy the said child.
"Fourth, that such operation was not necessary to preserve the life of the said Sharon Lee Schaub.
"Fifth, that the defendant, ROSS HILLS ELLIOTT, did by such actions, cause and produce the death of the said child.
"Sixth, that the crime, if any, was committed on the 14th day of September, 1961, and occurred or was triable within Multnomah County, Oregon."
[4] This aspect of the instructions was as follows:
"In establishing the degree of proof required, the State may rely upon either direct evidence, or indirect or circumstantial evidence. Direct evidence is that which proves a fact in dispute directly, without any inferences or presumptions, and which in itself, if true, conclusively establishes the fact. Indirect or circumstantial evidence is that which tends to establish a fact in dispute by proving another, and which though true, does not of itself conclusively establish the fact, but which affords an inference or presumption of its existence. An inference is a deduction which you, as members of the jury, make from the facts proved, without an express direction of law to that effect. A presumption is a deduction which the law expressly directs to be made from the particular facts. You are instructed that if, from a consideration of all the evidence in this case, the same is susceptible of two conclusions or two constructions, the one consistent with the guilt of the defendant, and the other consistent with his innocence, then you are to adopt that construction or conclusion which is the most consistent with his innocence. Circumstantial evidence to be successful for a conviction, must be of a conclusive nature, that is to say, those tendencies must be not only to convince the minds of the jury of the defendant's guilt beyond a reasonable doubt, but to exclude the supposition of innocence. The law conclusively presumes a malicious and guilty intent from the deliberate commission of any unlawful act." | b8903903300b62856f7d12d721c06b002bdcf8cdca14f6fae7e814a1948dd5e2 | 1963-06-19T00:00:00Z |
882dd4e8-2487-4052-8fef-a408d809ace5 | Harrell v. Dove Mfg. Co. | 234 Or. 321, 381 P.2d 710 | null | oregon | Oregon Supreme Court | Affirmed May 22, 1963.
Frederick A. Jahnke, Portland, argued the cause and submitted the brief for appellant.
Harvey J. Osborn, Portland, argued the cause for respondent. With him on the brief was Roscoe E. Watts, Portland.
*322 Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by a corporation entitled Dove Manufacturing Company from a judgment of the circuit court entered upon an arbitration award in favor of one Harry E. Harrell. During the proceedings the appellant Dove Manufacturing Company was referred to as "the respondent" and Harrell as "the petitioner." For purposes of our consideration of the issues before us, we adopt those designations of the parties.
By a contract dated January 28, 1961, petitioner (Harrell) agreed to sell and respondent (Dove) agreed to buy more than fifty per cent of the common stock of the Imperial Manufacturing Company which was engaged in the production and sale of electrical heating equipment. The contract incorporated an agreement by the petitioner "not to compete in lines of endeavor related to the activities of Imperial Manufacturing Company in the States of Oregon, or Washington * * *." Also included in the contract was the following:
Under the contract a payment became due the petitioner from the respondent on January 1, 1962. Petitioner's demand for the payment was ignored, whereupon he filed in the circuit court a petition for an *323 order appointing an arbitrator and directing arbitration in accordance with the provision of the contract set forth above. An arbitrator was appointed and the issues were framed, petitioner praying that the contract be declared void and that he be permitted to retain as liquidated damages payments which had been made by the respondent. The respondent denied that it had breached the contract and in support of a prayer for rescission alleged as affirmative defenses fraud in the inducement and a breach of the covenant not to compete.
The arbitrator found that respondent had breached the contract in failing to make the disputed payment and that its affirmative defenses were without merit. As to the allegation of fraud, he ruled that the respondent had by its conduct ratified the contract after it had obtained actual or constructive knowledge of the alleged fraud and that it was therefore unnecessary to determine whether such fraud in the inducement actually existed. The arbitrator also found that the respondent had failed to produce evidence supporting its allegation of breach of the covenant not to compete. He thus made an award in the petitioner's favor.
Pursuant to the provisions of ORS 33.310 and 33.320, the respondent filed with the circuit court the following exceptions to the award:
In denying those exceptions the circuit court entered judgment upon the arbitrator's award. It is from that judgment that respondent (Dove) appeals.
ORS 33.320, which enumerates the permissible exceptions, reads as follows:
Upon this appeal the respondent has apparently abandoned the exceptions with which it confronted the circuit court. In their stead it has submitted the following assignments of error which, it will be noted, seek a decision by this court on the merits of the case:
1. We quote the following from Jacob v. Pacific Export Lumber Company, 136 Or 622, 297 P 848 (1931):
See also, Rueda v. Union Pacific Railroad, 180 Or 133, 175 P2d 778 (1946) at page 168. The quoted statement *326 is in accord with the provisions of ORS 33.210 through ORS 33.340 which regulate arbitration proceedings in Oregon. The latter section provides for appeals from judgments based upon awards of arbitrators. The scope of such appeals, however, is necessarily limited by the provisions of ORS 33.320 which set forth the grounds upon which exceptions to awards may be filed with the circuit court. That section does not provide for judicial review on the merits of arbitrators' awards. This court is limited in its consideration of awards to exceptions which have been submitted to the circuit court in accordance with the provisions of ORS 33.320.
These provisions of our statute are rooted in reasons of policy. One of the primary purposes for which parties agree to arbitrate their disputes is to avoid what they fear may be costly and time-consuming litigation. See generally, Note, 63 Harv L Rev 681 (1950). It would be patently unfair to allow a party to an arbitration proceeding for which both parties have voluntarily contracted to turn the proceedings into a lawsuit in the event the arbitrator's decision is unfavorable to him. Through the provisions of ORS 33.320 our legislature has undertaken to guarantee that the proceedings will be conducted in a fair and honorable manner. It has not undertaken to authorize the courts to substitute their judgment for that of an arbitrator whose actions do not fall within the purview of that section. Were the courts to assume this privilege they would defeat the very purposes for which disputes are submitted to arbitrators. In the absence of an arbitration clause in the contract the parties are free to settle their disputes in court. But where they have contracted not to do so the courts *327 are authorized to interfere only where statutory grounds for such interference appear.
2. We have noted that the exceptions submitted by the respondent to the circuit court raised grounds approved by ORS 33.320. But we have also seen that it abandoned those exceptions upon this appeal in favor of two assignments of error which would necessitate a decision on the merits. Such a decision would be beyond the authority conferred upon this court by the legislature.
The judgment of the circuit court is affirmed. | c7261fa476b8ec73371c9fe6aff54314b32c3f1e0e920d1c4b6fc0060f339c27 | 1963-05-22T00:00:00Z |
d80c799d-aa28-4a7e-bd29-1a7fa316f665 | United States v. Firchau | 234 Or. 241, 380 P.2d 800 | null | oregon | Oregon Supreme Court | Reversed and remanded April 17, 1963.
Petition for rehearing denied May 14, 1963.
*242 Margaret S. Willick, Attorney, Department of Justice, Washington, D.C., argued the cause for appellant. With her on the briefs were Ramsey Clark, Assistant Attorney General of the United States, and Roger P. Marquis, Attorney, Department of Justice, Washington, D.C.; Sidney I. Lezak, Acting United States Attorney, and David Robinson, Jr., Assistant United States Attorney, Portland.
Carl R. Neil, Portland, argued the cause for respondent. With him on the brief were Krause, Lindsay & Nahstoll, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED AND REMANDED.
GOODWIN, J.
This is a timber-trespass action under ORS 105.815. The sole question is whether mitigation of damages (when allowable) must be calculated before or after the damages are doubled pursuant to the statute.
The complaint contains the following:
Defendant filed a demurrer, and argued that when standing timber is felled and left lying upon the land, the trespasser is entitled to the benefit of any mitigation of damages that might be available to him by reason of the victim's ability to sell the timber left on the ground. The defendant contends that credit in mitigation must be given before the "damage" to the land can be "claimed or assessed". In other words, the defendant would have us hold, it is only the net damage or loss suffered by the landowner, after mitigation, that is to be doubled, or trebled, as the case may be.
The parties agree, at least for the purposes of the demurrer, that the damages to the land, in the absence of statute, would equal $1,913.50. This is also the exact value of the stumpage cut in the trespass. The plaintiff has not claimed any additional injury to the land. The parties agree that the plaintiff has realized $2,420.90 from a sale of the felled timber. The logs had gained in value some $5.90 per thousand board feet, the cost of having them felled and bucked. This left a net benefit to the plaintiff of $507.40 (for which the defendant can claim no credit and for which he makes no claim. See O. & C.R.R. Co. v. Jackson, 21 Or 360, 28 P 74 (1891)).
The defendant's computation of damages is as follows: Since the sum realized by the plaintiff in mitigation *245 more than equals the original damages (stumpage value) which the plaintiff alleged, the net damage to the plaintiff is zero. Zero when doubled is still zero. Accordingly, says the defendant, the plaintiff has stated no cause of action.
Plaintiff, on the other hand, construes ORS 105.810 and 105.815 to mean that the landowner is entitled to compute the damage to the freehold caused by the trespass as of the time of the trespass. Plaintiff says it may thereafter apply the appropriate statutory multiple. In that manner plaintiff arrives at the sum of the defendant's basic liability, or $3,827.00. Then the plaintiff concedes that the defendant thereafter should have credit for the stumpage value of the logs left upon the land. The plaintiff is also willing to give the defendant credit for the enhanced salvage that was realized. As noted, the plaintiff's generosity in this respect is voluntary. The plaintiff's demand is thus the difference between the double damages so computed and the mitigation as set forth in the complaint.
The trial court adopted the defendant's formula and deducted enough of the amount realized out of the sale of the timber to equal the value of the stumpage alleged to have been wrongfully severed. The net was then zero. The trial court then entered an order sustaining the demurrer. The court necessarily believed that the net effect of the complaint was a failure to plead any damages.
The wording of the statutes appears to admit of either construction. The trial court, in its memorandum opinion, stated that it was persuaded to adopt the theory urged by the defendants because of two Oregon decisions, Loewenberg v. Rosenthal, 18 Or 178, 22 P 601 (1889), and Kinzua Lbr. Co. v. Daggett et *246 al, 203 Or 585, 281 P2d 221 (1955). While both cases describe results upon facts which lend some support to the trial court's decision, neither case is a square holding on the point in issue.
In the Loewenberg case, the parties and the court apparently treated the trespass as one de bonis asportatis instead of one quare clausam fregit. The record in that case does not reveal that the before-and-after value of the land was ever considered. Cordwood was the subject matter in controversy. The jury in the Loewenberg case made answer to a series of special interrogatories. The jury fixed the number of cords of wood taken as well as the number returned. The court then held that the statutory multiplication of damages ought to be accomplished after making an allowance in mitigation for the stumpage value of certain cordwood the defendants had delivered to the plaintiff's home. The case employs a rule found in cases involving trespass to personal property to the effect that the return of the property by the defendant may work a mitigation of damages. (The case also follows the familiar rule in trover cases that a converter who, by his own industry, enhances the value of personal property converted can not claim the benefit of the enhanced value.) The case concludes, however, by applying a forerunner of ORS 105.810 to the facts, and treble damages are awarded in an amount based on the net value of stumpage taken, after making allowance for the stumpage value of the wood returned. Since the plaintiffs had demanded that the gross value of the wood carried away from their land be trebled, the decision, which trebles only the net value, lends some support to the position of the defendants here. While the Loewenberg case could be distinguished on the ground that it was treated as a case involving *247 personal, rather than real property, we believe that the reasoning of the court with reference to matters relevant in the case at bar can not be distinguished, and that the trial court was justified in treating the case as persuasive, since it had not been overruled or limited by a later decision.
In the Kinzua case, the court was dealing with a stipulation between the parties in which the parties had agreed to a net figure of damages (which made allowance for mitigation) and then litigated only the question whether equity would permit the stipulated figure to be doubled under the statute. We held that the damages, once determined, were compensatory rather than punitive. We then held that such damages could be doubled by a court sitting in equity as well as by a court trying an action at law. We had no occasion to pass upon the correctness of the stipulation which liquidated the damages after allowing credit for logs remaining on the land. The parties in the Kinzua case were free to settle upon any figure they chose. In many cases, as an abstract matter, that method of settlement would be a fair one to follow. Whether the formula agreed upon in the Kinzua case is the one that must be followed in other cases, however, is the question we must now decide.
The defendant contends that in the case at bar the plaintiff might have alleged a cause of action under the statute, but pleaded too much. The defendant says the pleadings justify the order sustaining the demurrer. No matter what the actual damage to the freehold might have been, the plaintiff elected to plead a severance of stumpage and a net recovery of stumpage. The defendant's argument proceeds on the theory that the true measure of damages is the before-and-after value of the land. In this state there is no dispute *248 on this point. See O. & C.R.R. Co. v. Jackson, 21 Or 360, supra. For the rule elsewhere, see cases collected in Annotation, 69 ALR2d 1335, 1340 (1960). The defendant then says that since the complaint went beyond the pleading of the before-and-after value of the land and pleaded in paragraph III a salvage sale which exceeded the before-and-after measurement of damages alleged in paragraph II, the plaintiff had pleaded itself out of court.
If the complaint had stopped at the end of paragraph II, it clearly would have been invulnerable to demurrer. If the parties had gone to trial on such a complaint, the answer presumably would have set up the matters in mitigation. The question now before us would have been presented to the trial court on a motion for a directed verdict, assuming the evidence supported the pleadings. The real issue in the case would thus have to be decided in any event.
Whether we decide that the defendant's objection to the pleading was one that could not be taken by demurrer or that the demurrer was improperly sustained on the merits, we would in effect be deciding the same substantive question. We believe paragraph II of the complaint states a cause of action for damages (under ORS 105.810). The matter which followed, whether wisely or unwisely incorporated into the pleading, did not make the pleading vulnerable to demurrer. Such garrulity merely narrowed the issues for trial and relieved the defendant of the duty to prove mitigation.
1. As we have noted, the ordinary measure of damages in a trespass case is the before-and-after value of the land. It may well be, as a number of authorities indicate, that where the trespasser severs mature, merchantable *249 timber, a practical measure of such damages is the stumpage value of the standing timber. Stumpage ordinarily has a definite market value. A number of cases noted in 69 ALR2d at 1345 use the stumpage value as the exclusive measure of damages, but these are, for the most part, conversion rather than trespass cases. Since the law favors certainty in such matters, however, other authorities say that in the case of mature, marketable timber stumpage is the primary measure of damages whether the action sounds in trespass or in conversion. See, e.g., Falk, Timber and Forest Products Law 107 (Howell-North Press, Berkeley, 1958). In any event, whether stumpage equals damage or is merely some evidence thereof, there is no reason to hold a complaint fatally defective upon demurrer, merely because the pleader has characterized his measure of damages as "stumpage" instead of as "injury to the freehold." The real issue here is not what name to give the damages, but rather how and when to compute them.
2. In the case at bar, the plaintiff no doubt could have demanded additional damages, if any had been sustained, for injury to young growth, for costs of slash-disposal, and the like. Miller v. Wykoff, 346 Mich 24, 77 NW2d 264 (1956); Feather River Lumber Co. v. United States, 30 F2d 642 (9th Cir.1929). The fact that the plaintiff was willing to disregard such damages, however, does not mean that the plaintiff would not be entitled to prove the damages which it was seeking.
3. The principle of mitigation, or, more properly, of the duty of a plaintiff to avoid reasonably avoidable losses following a trespass, is not a part of the statutory scheme expressed in ORS 105.810 and 105.815. It is a principle of common law that has been adopted *250 by the courts because justice requires it. There is no reason why the principle should not apply in statutory trespass cases. Generally, a victim of a trespass may not sit idly by and permit the damages caused by the trespass to be compounded by natural elements or by other causes if, in the exercise of slight care, he could prevent such enhanced injury to his land. See Adams v. Clover Hill Farms, 86 Or 140, 167 P 1015 (1917), where this court went to some length (if not, indeed, too far) in requiring an injured plaintiff to avoid the consequences of the flooding of his land by his neighbor. Cf. Miller v. City of Woodburn, 126 Or 621, 270 P 781 (1928). But the duty upon a plaintiff to suffer some slight inconvenience in protecting himself and his property from enhanced loss after a trespass should not be confused with the primary legal duty of a trespasser to pay for his wrong as of the time it was done. In the liability-creating sense of the word duty, the trespasser's duty is to refrain from doing the wrong. Liability for the wrong may be subject, in some cases, to partial relief, where mitigation can be given effect. The plaintiff, in a situation where mitigation is appropriate, is really under a disability to collect for avoidable losses, rather than under a duty to avoid the losses. See McCormick, Damages 128 (Hornbook Series, 1935).
Even when the foregoing principles are clearly understood, however, the question still remains: Are the plaintiff's damages to be assessed, for the purposes of the timber-trespass statute, before, or after, the mitigation of damage is taken into account. The question presents a choice of law. The choice must be made upon the basis of legislative intent. Since the statutes do not say when the computation is to be made, the courts must supply the answer in a manner that is *251 consistent with the purposes that are expressed or implied within the statutes themselves.
4. We hold that the actual damages suffered as the result of the trespass are to be computed and multiplied by the statutory factor before allowance is made for such salvage as the plaintiff, by its own diligence, realized, or could have realized. To hold otherwise would, in practical effect, repeal most of the statutory scheme. A simple illustration will show why. Suppose, instead of an innocent trespass, the cutting of the plaintiff's timber in the case at bar had been a wilful trespass within the meaning of ORS 105.810. If the defendant's formula correctly interprets the statutes, then a wilful defendant equally could escape liability for cutting the trees of another by leaving some of them on the ground. So long as the defendant leaves enough logs on the ground so that a vigilant owner could sell them for a price equal to the stumpage value of the timber cut, the owner who suffered the involuntary harvest of his timber would have to bear it in silence. Three times zero is the same as two times zero.
5. As we understand the legislative purpose expressed in ORS 105.810 and 105.815, the enhanced damages are to compensate the owner whose land is trespassed upon and to put tree cutters on notice that they cut beyond their boundaries at their peril. See Gordon Creek Tree Farms v. Layne et al, 230 Or 204, 221, 358 P2d 1062, 368 P2d 737 (1962); Kinzua Lbr. Co. v. Daggett et al, 203 Or supra at 595-596, 606. The defendant's interpretation of the statutes would defeat both of these purposes in most cases where mature standing timber is severed by a trespasser. We cannot believe the statutes were enacted to protect only the owners *252 of immature or ornamental vegetation, the result which would follow from the trial court's ruling.
6. Under ORS 105.810 and 105.815, the correct formula to follow in assessing damages is to determine the actual damage to the freehold, then double or treble such damages, as the facts of the case may indicate, then allow such sums in mitigation as may be appropriate in a given case. If mitigation were to be allowed before computing the damages to the land, there is no good reason why a defendant could not send the victim of the trespass a check for the value of the timber removed together with a sum to cover other incidental losses, and thereby wash out his liability altogether.
It therefore appears that the complaint in this case did state a cause of action upon which recovery could have been allowed, and that the trial court erred in sustaining the demurrer. The cause should be remanded for further proceedings consistent with the views expressed herein.
Reversed and remanded. | 1cb954204cb6dc51c236db4ccb71f4227426e0e5dbf5f733053db70add1fd2cf | 1963-04-17T00:00:00Z |
b10fb883-ae2d-454a-bd81-856319c1fb17 | Parrish v. Minturn | 234 Or. 475, 382 P.2d 861 | null | oregon | Oregon Supreme Court | Affirmed June 12, 1963.
Joseph Larkin, Redmond, argued the cause for appellant. With him on the briefs were Cunning, Brewster, Copenhaver & Larkin and George H. Brewster, Redmond.
*476 James B. Minturn, Prineville, argued the cause for respondents. With him on the brief was James F. Bodie, Prineville.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
O'CONNELL, J.
This is a suit to quiet title to a ranch in Crook county. Plaintiff alleges that he acquired title by adverse possession. The trial court concluded that plaintiff's possession was not adverse and entered a decree for defendants. Plaintiff appeals.
Plaintiff purchased the land in question in 1917. In 1931 he deeded the land to his son, Edwin C. Parrish. Edwin died on January 30, 1960. Defendant James Minturn is the administrator of the estate of Edwin C. Parrish. Defendant Vivien Parrish is Edwin's widow.
Approximately two years after the execution of the deed by plaintiff Edwin left the ranch and moved to Redmond, Oregon where he lived for almost eight years. Eventually he moved to California where he died in 1960. Plaintiff described Edwin's intention upon leaving the ranch as follows:
After Edwin left plaintiff continued to live on the ranch until about 1942 when he leased it to a tenant. During this entire period plaintiff paid all taxes and water charges. He collected the rent and never accounted to Edwin for any part of it. Plaintiff constructed a house on the property at a cost of $1,600, doing most of the construction work himself. Plaintiff testified that on several occasions Edwin had agreed to give him a deed to the ranch. We have set out above a part of this testimony. Plaintiff further testified that on one occasion he and Edwin went to Prineville to have the deed executed. He said, "We went to Prineville to have this deed made out at Bechtell's. Bechtell always done my business. And he was out of town. He was out of town and we never went back." Plaintiff also testified that, "We had some papers fixed up, it was, and he was to give it back to me." The testimony continued as follows:
Loren Parrish, plaintiff's son, testified that his brother Edwin told him, "Well, I have got to deed it back to the old man one of these days," and that "He said he should get it done." Loren Parrish also corroborated plaintiff's statement that plaintiff and Edwin had gone to Prineville to have a deed executed.
Rose Gibson (whose husband was the brother of plaintiff's deceased wife), testified that sometime after 1952 she had discussed with Edwin the ownership of the ranch. She reported the conversation as follows:
Defendant Vivien Parrish testified that her husband, Edwin, had told her that he wanted his father to live on the ranch for the remainder of his life. It further appeared from the testimony of Rose Gibson that Edwin had borrowed money from her and her *479 husband in 1942 and that Edwin had given them a deed to the ranch as security for the loan.
1, 2. The sole issue in the case is whether plaintiff has met the burden of proving that his possession was adverse rather than permissive. If a grantor is permitted by the grantee to retain the possession of the land conveyed, his possession is generally treated as being in subordination to the interest of his grantee unless the grantor indicates by words or conduct his intention to hold the land as his own and this indication is brought to the grantee's attention.[1] In some cases a heavier burden of proof has been imposed upon the grantor when the conveyance is made between members of a family. The rule is summarized in 39 ALR2d at 385 (1955), as follows:
The evidence in the present case does not unequivocally indicate that plaintiff's possession was adverse after Edwin had left the ranch. If we accept Rose Gibson's testimony (and she appears to have less interest in the outcome of the case than the other witnesses who testified as to the character of plaintiff's possession), we must conclude that Edwin regarded plaintiff's possession as that of a life tenant. As a life tenant plaintiff could be expected to pay the taxes and other charges incident to the use of the *480 premises and plaintiff's expenditure of $1,600 to construct a building on the land can be explained as a reasonable and expectable expenditure by one who will profit by it in the form of rental income. The fact that Edwin mortgaged the ranch in 1942 is some evidence that he regarded himself as still the title holder at that time.
3. Accepting plaintiff's version of the case, Edwin made an oral gift of the ranch to plaintiff upon leaving in 1933. A parol gift of land is sufficient to inaugurate adverse possession.[2] In the instant case the evidence of an oral gift comes from those who would profit by such proof. And defendants have no way of contradicting the testimony of plaintiff and his son Loren as to Edwin's statements of his intention to make a gift of the ranch as Edwin is dead. The credibility of the witnesses becomes crucial under these circumstances. The trial judge had the opportunity to observe the witnesses and is in a much better position to pass upon their credibility. Even on the cold record, plaintiff's testimony set out above relating to the execution of a "paper" evidencing the alleged gift seems unconvincing. The other testimony offered by plaintiff to establish a gift of the land upon Edwin's departure is not strong. Taking the evidence as a whole, the intention to make an oral gift of a life estate is as strong or stronger than the intention to transfer Edwin's entire ownership. And the evidence showing a gift of any type is not convincing.
Plaintiff has failed to meet the burden of proof requisite to the establishment of adverse possession. The decree of the lower court is affirmed.
[1] Reid et al v. Reid, 219 Or 500, 348 P2d 29 (1959); Gardner v. Wright, 49 Or 609, 91 P 286 (1907); 39 ALR2d 354 (1955); 3 American Law of Property, p. 801 (1952); 4 Tiffany, Real Property § 1182 (3d ed 1939).
[2] Miller v. Conley, 96 Or 413, 190 P 301 (1920); Parker v. Kelsay, 82 Or 334, 161 P 694 (1916). Cases are collected in Annotation 43 ALR2d 16-20 (1955). | c6f00375091100b4e990977de03b7ab959495b5a924950189200ae578ab8dc14 | 1963-06-12T00:00:00Z |
9b42e259-3766-403d-9664-d324ae3c747b | Campagna-Jones v. Jones | 234 Or. 378, 381 P.2d 63 | null | oregon | Oregon Supreme Court | Affirmed May 1, 1963.
Petition for rehearing denied June 11, 1963.
Martin Schedler, Portland, argued the cause and submitted the brief for appellant.
No appearance by respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the plaintiff, Leota E. Campagna, from an order of the circuit court which denied her motion for a change in the custody of a boy of *379 whom she is the mother and the defendant, Jacob T. Jones, her former husband, is the father. The plaintiff-appellant and the defendant-respondent were married June 9, 1946. The boy just mentioned, whose Christian name is Thomas, was the issue of the marriage and is the subject matter of this proceeding. The boy was born November 21, 1947, and therefore is now 15 years and 5 months of age. A decree of divorce, which was entered April 24, 1958, awarded custody of Thomas to the plaintiff, but contemplated that she and Thomas make their home with the plaintiff's parents. In October 1959, after the juvenile department of the Circuit Court for Clackamas County had made an investigation of the plaintiff and the defendant, an order of the court awarded Thomas' custody to the defendant. The latter had remarried.
November 2, 1959, the plaintiff and her present husband became married. February 2, 1962, the plaintiff filed the motion for change of custody which is now under consideration. In response to the requirement that motions for a change of custody must point to a change of circumstances that occurred since the entry of the last custody order or to circumstances that were then unknown (our last statement of the rule is Gonyea v. Gonyea, 232 Or 367, 375 P2d 808), the plaintiff's brief says:
Unfortunately, the plaintiff and her present husband live not far from the house occupied by the *380 defendant, his present wife and Thomas. The defendant and his wife established themselves there before the plaintiff and her husband moved into the neighborhood. The evidence indicates that the nearness of the two homes to each other causes Thomas to make unscheduled visits to his mother and step-father. The defendant's present wife, as a witness, expressed concern over the facts just indicated and stated that although the couple are purchasing their home they would sell it and move elsewhere if that would improve matters. The defendant and his wife testified that when Thomas became fourteen years of age he became satisfied that he could voice a preference when his custody was the subject matter of judicial attention. Both swore that at that juncture, especially after the plaintiff filed her motion for change of custody, the disciplining of the boy became an increasingly difficult problem. The latter produced tension in the home.
The defendant testified:
The defendant's present wife testified:
Thomas was a witness. He gave his testimony in the judge's chambers in the presence of counsel and the court reporter, but in the absence of his parents. At its conclusion the capable trial judge who had displayed a commendable interest in this case spoke to the boy in this vein:
After both parties had rested, the trial judge expressed himself as follows:
If the conditions in the defendant's home have deteriorated, as the plaintiff claims, it seems permissible *383 to infer that the decline has been in large part due to the efforts of the defendant and his wife to cope with the problems centering in the boy. The trial judge very properly reasoned that unless discipline is successfully exercised the boy may himself become the victim. No one claims that the defendant or his present wife are resorting to cruelty, indifference or unreasonable methods. Both have affection for the boy and the defendant's present wife spoke in terms of admiration and hope for him. If the plaintiff and her husband are encouraging the boy to resist the discipline which the defendant and his wife are seeking to maintain, they should discontinue doing so.
We concur in the trial judge's views and disposition of the motion. The challenged order is affirmed. | ba24c4e50f947113a35907765083d21a3bafad6b44e910943dafa8a559b4d6dc | 1963-05-01T00:00:00Z |
277a6cff-d722-4eca-bbc2-6370782a8d51 | State v. Unsworth | 235 Or. 234, 384 P.2d 207 | null | oregon | Oregon Supreme Court | Reversed and remanded July 31, 1963.
O.W. Goakey and Philip J. Engelgau, Klamath Falls, argued the cause and filed a brief for appellant.
Samuel A. McKeen, Klamath Falls, argued the cause for respondent. With him on the brief were Dale T. Crabtree, District Attorney, and J.R. Thomas, Klamath Falls.
*235 Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, GOODWIN and LUSK, Justices.
REVERSED AND REMANDED.
O'CONNELL, J.
Defendant appeals from a judgment of conviction for the crime of second degree murder.
Defendant was indicted on April 26, 1962. He entered pleas of not guilty and not guilty by reason of insanity. Prior to trial plaintiff and defendant had stipulated that Dr. Henry Dixon, Jr. should be retained to examine the defendant to determine if he was insane or mentally defective on April 15, 1962, the day of the alleged murder. Dr. Dixon examined defendant and concluded that his mental impairment was such that he was unable to assist in his own defense, and further, "That according to McNaghten's formula that he could not distinguish right from wrong at the time of the commission of the above described act."
On May 23, 1962 the trial court, acting pursuant to ORS 136.150, ordered a hearing to determine defendant's mental condition. At the hearing defendant was examined by Dr. Dixon, Dr. Wayne Esperson and Dr. Seth Kerron. Defendant and his counsel were present at the hearing.
Defendant assigns as error the admission of hearsay evidence. Dr. Dixon had been called as a witness for the defense. On direct examination he testified that the hearing on May 23, 1962 confirmed his previous findings as to defendant's mental incompetence. On cross-examination Dr. Dixon was permitted to testify, over objection, as follows:
Dr. Kerron was called as a witness for the state. He testified that upon the basis of his examination he was of the opinion that defendant was able to assist in his defense and knew right from wrong. He further testified, over objection, as follows:
Dr. Esperson was not called as a witness. His statement of opinion concerning defendant's mental competence was hearsay. The fact that this statement was made in a previous proceeding does not of itself render it admissible. ORS 41.900 (8) permits the use of testimony of a witness given in a former proceeding only if the witness is "deceased, or out of the state, or unable to testify." Dr. Esperson was available to testify during the trial of defendant.
1, 2. The admission of Dr. Esperson's statement over defendant's objection is reversible error.[1] Defendant's *237 sanity was an issue of primary importance. Defendant had the burden of proof on that issue. The opinion of Dr. Esperson may have constituted the decisive evidence detrimental to a successful defense. With defendant's liberty at stake, we shall not indulge in the assumption that the jury would not be influenced by this testimony. It is, therefore, necessary to order a new trial.
Reversed and remanded.
[1] State v. Livingston, 233 S C 400, 105 SE2d 73 (1958). | 78bd6364c03b2092d7d2d06d39d1491d906085a9cd0e965f8aedfd28b75637ca | 1963-07-31T00:00:00Z |
b00d991c-1656-4385-92f2-ff96977c98e2 | Ray v. Ricketts | 235 Or. 243, 383 P.2d 52 | null | oregon | Oregon Supreme Court | Affirmed June 19, 1963.
Petition for rehearing denied August 2, 1963.
*244 Thomas H. Tongue, Portland, argued the cause for appellants. With him on the briefs were Roy Kilpatrick, Canyon City, and Charles S. Crookham, Portland.
Gene B. Conklin, Pendleton, argued the cause for respondent Ricketts. With him on the brief were Yokom & Campbell, John Day.
R. Thomas Gooding and S.H. Burleigh, La Grande, argued the cause for respondents Wilson. On the brief were Burleigh, Carey & Gooding, La Grande.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
GOODWIN, J.
Plaintiff, the transferee of certain demand notes, brought action against the defendants upon their indorsements. The trial court granted the defendants the equitable relief of reformation, and ordered the indorsements to be reformed so as to read "without recourse". Upon such reformation, the action evaporated. Plaintiff appeals.
*245 1. The controlling question is whether the trial court correctly evaluated the evidence. Acting under the requirement of ORS 17.440 that this court try suits de novo, we treat the proceedings below as a suit. The only questions decided were those presented by the equitable defense and prayer for reformation.
The undisputed facts may be outlined briefly as follows: In 1956, the defendants were the owners of the controlling stock in a corporation known as Western Timber Products Company. Western Timber operated a sawmill in New Mexico. The corporation was handicapped by a shortage of working capital, and was in need of cash in order to meet its payroll and to keep from losing its timber supply. The corporation had valuable assets in a timber contract and a relatively new sawmill plant. The corporation also had liabilities, including the unpaid balances owed on the timber and on the sawmill equipment. As a going concern, the sawmill with the timber was worth substantially more than the total of the liabilities. In the event of nonperformance of its timber contract, however, the sawmill would have lost its timber. Without timber, the mill would have had salvage value only.
All the parties, so far as may be material here, were experienced lumbermen. The plaintiff sought out the defendants. The plaintiff had money to invest. The defendants had reached the point beyond which they were reluctant to make further advances of capital to the corporation. The defendants denied that they were desperate for money, but admitted that new money looked good to them. Both defendants had loaned money to the corporation on an unsecured account. The total investment of the defendant Wilson amounted to $181,000. The total investment of the defendant Ricketts amounted to $141,000. Their respective *246 advances to the corporation equalled roughly half their total investment. Their original investments were represented by stock. Wilson had loaned the corporation about $93,000 and Ricketts had loaned it about $87,000. Round numbers are sufficient for the purposes of this case. In addition to cash advanced to the corporation, Wilson and Ricketts had co-signed as personal guarantors certain time-payment contracts for sawmill machinery. The contracts then had unpaid balances of some $300,000, or about half their original obligations.
The plaintiff agreed to buy the defendants out for $160,000 cash. The parties agreed that in consideration of the sale of the defendants' stock in the corporation for $160,000 the plaintiff would save the defendants harmless of any contingent liability under the above-mentioned contracts. Subsequently the contracts were paid. The save-harmless agreement thus is relevant solely for the light it sheds upon the intent of the parties.
The principal dispute concerns the intention of the parties with reference to the cash advances to the corporation by the defendants. The defendants contend that they did not care whether the accounts owed them by Western Timber were represented by stock or by notes. They wanted out. They were to receive $160,000 for their interest in the corporation, as is, with the plaintiff to take over their claims against the corporation as well as their equities in it. They swore that their purpose in selling for less than half of what they had in the corporation was to get out before they had to put in any more money. They admitted that they were particularly interested in being relieved of their contingent liability on the conditional-sale contracts. They were to relinquish control of the corporation. *247 The lumber market was not good. They did not want to be subject to liabilities that might be enhanced by operations in which they had no voice. The defendants contend that the accounts payable from Western Timber to themselves were assigned to the plaintiff in the manner the plaintiff designated, solely for the convenience of the plaintiff. The transfer of the accounts was made as follows: The amounts advanced to the corporation were (or previously had been) reduced to promissory notes, prepared on printed forms, each note payable to one of the defendants. Each respective payee of a note then indorsed it "Pay to Huber Ray or Frieda Ray * * * [payee's signature]." The record is unclear whether these notes had been executed by Western Timber contemporaneously with the advances, or were executed contemporaneously with the sale to the plaintiff. In either event, no party in the proceedings at bar questioned the execution or delivery of the notes. The sole question concerns the indorsements.
It is the theory of the plaintiff that since the notes were indorsed without qualification, and since the notes were not paid by Western Timber upon demand, the indorsers became liable under general law relating to commercial paper. See ORS 71.066.
It is the theory of the indorsers that they had merely assigned their debts to the plaintiff in the manner designated by the plaintiff, and that none of the parties intended to have the defendants become personally liable on their indorsements. See ORS 71.038 (qualified indorsement). The defendants clearly would not have been liable if the corporation had issued additional stock, instead of notes, to cover the advances.
The plaintiff resisted reformation of the indorsements *248 on the ground that there was no antecedent contract to which reformation could be directed. The plaintiff swore that he knew all the time that the indorsers would be liable, and that he wanted it that way because he wanted the possibility of recoupment in case the investment he was about to make did not turn out well. The plaintiff relies heavily upon his assumption of, and payment of the $300,000 balance owed on the sawmill. The plaintiff says his assumption of the contract balance was consideration for the liability of the indorsers.
The lawyer who had represented the plaintiff at the time the notes were transferred and in whose office at least part of the notes were indorsed, however, testified that he recalled the transaction as an assignment, or its equivalent. The lawyer did not recall any discussion of liability on the indorsements.
The plaintiff admitted on cross-examination that the tax advantages of taking notes instead of additional stock from the corporation may have appealed to him at the time. At one point he said the notes might have been attractive to him. At another point he said they made no difference. Whichever statement most accurately reflects his intent at the time of the transaction, neither tends to prove that he had any right to treat the indorsements as more than assignments.
The record also reveals that the demand notes in this case were held until shortly before the statute of limitations had run, even though the plaintiff was in need of money much earlier. He said he lost over a half-million dollars in Western Timber before the company went into liquidation, but it apparently did not occur to him to seek recovery on the notes until he was advised by others to do so.
*249 2. We are satisfied that the antecedent agreement of the parties was to assign the corporate debts to the plaintiff to use in the manner most favorable to him, and to take the defendants completely out of the corporation. Reformation to make the indorsements read "without recourse" was consistent with the bargain the parties made.
This is not a case in which this court, on a paper record, should overturn the findings of fact made by an experienced trial judge who spent several days in the courtroom with the parties, observing and listening as they gave their conflicting recollections of their intent some six years before. See Blue River Sawmills et al v. Gates, 225 Or 439, 473, 358 P2d 239 (1961).
3. The plaintiff contends now that even if the trial court was right on the facts, which he denies, it was error to grant reformation. The plaintiff relies on the settled rule that there must be an antecedent contract to which effect can be given by the reformation. The rule is a good rule. Affirming the decree in the case at bar, moreover, will do no violence to it. There was adequate proof that the parties intended the transaction to be the one found by the trial judge and not the one the plaintiff now says he secretly intended. It struck the trial court as unusual that the defendants would enter into a bargain to pay the plaintiff upon demand for taking a valuable business off their hands. In the event that the corporation, later, under the plaintiff's exclusive control, could not pay or preferred not to pay the notes, the original owners, under the plaintiff's theory, agreed to do so. The trial judge concluded that the true agreement of the parties was otherwise.
4. However, even if the plaintiff is right concerning his own intent, i.e., that he entertained an undisclosed *250 intent to employ the unqualified indorsements as some kind of insurance against a hazardous investment, his undisclosed purposes cannot avail him in this case. It is clear that the indorsers, acting under the direction of the plaintiff's attorney, thought they were simply assigning the debts to the plaintiff. This kind of unilateral mistake does not prohibit reformation.
Taken in the light most favorable to the plaintiff, the facts in the case at bar would clearly fall within the rule found in Restatement, 2 Contracts 973, § 505:
See, also, 3 Corbin, Contracts 730, § 614 (1960 ed); 5 Williston, Contracts 4340, § 1548 (rev ed 1937).
5. The evidence in support of reformation must be clear and convincing. Weatherford v. Weatherford et al, 199 Or 290, 257 P2d 263, 260 P2d 1097 (1953); Restatement, 2 Contracts 981, § 511. In this case the evidence fully satisfied the requirement that the defendants prove their case with a high degree of probability.
Affirmed; costs to neither party. | 0efb8440caf61628fff25d57ba2f6941d7b8f324e5e1f74cf37e54ebf3768384 | 1963-06-19T00:00:00Z |
2dba1623-43f1-4bfd-9749-d28516dd2976 | State v. Flett | 234 Or. 124, 380 P.2d 634 | null | oregon | Oregon Supreme Court | Reversed and remanded April 10, 1963.
*125 David G. Frost and Mervin W. Brink, Hillsboro, argued the cause and filed briefs for appellant.
Francis W. Linklater, District Attorney, Hillsboro, argued the cause for respondent. With him on the brief was Richard Smurthwaite, Deputy District Attorney, Hillsboro.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
REVERSED AND REMANDED.
*126 GOODWIN, J.
Evelyn A. Flett was indicted for the crime of second-degree murder and was convicted of the included crime of manslaughter. She appeals.
The facts are obscure. There were no witnesses to the killing except the defendant. The state attempted to prove that the defendant purposely stabbed her husband with a paring knife. The defendant contended the killing was an accident. The state did not allege or attempt to prove premeditation.
The marriage was brief and turbulent. The evidence suggests that both parties drank excessively. The killing occurred during a quarrel. The state tried to persuade the jury that the quarrel was provoked by the defendant's behavior. She had spent two nights that week with another man. The defendant claimed the quarrel was more or less routine. She said the stabbing was an accident that occurred when the deceased pulled her hand, which held the knife, against his rib cage with fatal consequences.
1. We will assume that the state may use evidence of a defendant's recent marital infidelity in a proper case. Reversible error, however, entered this case when the court permitted the state, over the objection of the defendant, to put on the testimony of a neighbor woman who said that the defendant had told her several months before the killing that the defendant had spent the night in a motel with an unidentified man.
It is apparently the majority view in this country that a person charged with killing his or her spouse can be shown to have committed acts of marital infidelity. There are a great number of such cases, collected in 40 CJS 1160, Homicide § 229; 26 Am Jur 373, Homicide § 323; 2 Wigmore, Evidence 331, § 390 (3d ed, *127 1940). There are also cases which exclude remote acts of indiscretion. See, e.g., State v. Knox, 236 Iowa 499, 510, 18 NW2d 716 (1945) (3 years before); Commonwealth v. Burke, 339 Mass 521, 534, 159 NE2d 856, 864, 77 ALR2d 451 (1959) (7 months). Also excluded were isolated incidents held irrelevant in Adams v. Commonwealth, 274 Ky 714, 120 SW2d 237, 243 (1938); Frasure v. Commonwealth, 245 Ky 127, 53 SW2d 204 (1932); People v. Harris, 209 NY 70, 77, 102 NE 546 (1913).
2. We believe the controlling rule is found in our own recent case of State v. Kristich, 226 Or 240, 359 P2d 1106 (1961). When highly prejudicial evidence is offered, its relevancy, i.e., its tendency to prove an issue in dispute, must be weighed against the tendency of the offered evidence to produce passion and prejudice out of proportion to its probative value. The rule has been followed in later cases which have made it clear that the matter is largely within the sound discretion of the trial court. See, e.g., State v. Freeman, 232 Or 267, 374 P2d 453 (1962) (gruesome evidence held admissible).
The reason for permitting the state to prove acts of marital infidelity is the supposition that such evidence may have some slight probative value. In a first-degree murder case, which this is not, such evidence is thought to be relevant to prove motive. Where the killing is not alleged to be a premeditated affair, but where ill will toward the deceased spouse may be an issue, the evidence is thought to be relevant to prove ill will. In this case, ill will was an issue. However, the connection between isolated acts of marital infidelity and the purposeful slaying of a spouse is extremely tenuous in any case. Here the record reveals that excessive drinking and quarreling were *128 routine weekend activities. There is no evidence that the hostility, if any, of one spouse toward the other had anything to do with marital fidelity. Under these circumstances, while it may not have been an abuse of discretion to permit the state to show the misconduct that occurred a day or two before the killing, it was clearly an abuse of discretion to let the district attorney roam out over the countryside with his proof of remote acts of indiscretion that could have had nothing to do with the issues the jury was called upon to decide.
3. The record admits of no inference but that the district attorney was attempting to blacken the defendant's character by proof of collateral misconduct having so little to do with the crime as to be virtually irrelevant. We have recently held that a person accused of burglary cannot be shown to have negotiated the bank checks stolen in the burglary, because such conduct is a separate crime. State v. Gardner, 225 Or 376, 358 P2d 557 (1961). A fortiori, a person accused of stabbing her husband should not be called upon to explain to a jury what she was doing in an unidentified motel with an unidentified man several months earlier, unless the state is prepared to show some substantial connecting link between the two acts. As this court said in State v. Rollo, 221 Or 428, at 438, 351 P2d 422 (1960), "[t]he prosecutor is entitled to hit as hard as he can above, but not below, the belt." In the case at bar, the court permitted the prosecutor to overreach himself.
4. One of the remaining assignments of error presents a question the trial court again may be called upon to decide. During the trial, one Kizer was permitted to testify that he had spent the night with the defendant the Wednesday and Thursday just before *129 the killing. He was also permitted to testify that he had done so on "three or four; four or five, maybe" other occasions. The testimony concerning the "four or five" other occasions was objected to as remote and prejudicial. In the absence of some substantial connection between these episodes and the state's theory of the case, the evidence should have been excluded.
5, 6. Another assignment of error challenges the propriety of the trial court reinstructing the jury on the included crime of manslaughter at the jury's request the next day after the cause had been submitted. (The jury had rested from its labors during the intervening night.) The method of reinstructing a jury, at its request, on rules of law is provided for in ORS 17.325. The advisability of reinstructing rests within the discretion of the trial court, subject to the statute. State of Oregon v. Vaughn, 200 Or 275, 265 P2d 249 (1954) and authorities cited therein. In the case at bar there was no abuse of discretion.
7, 8. Error has also been assigned to the refusal of the trial court to rule, prior to the commencement of the trial, that the state could not offer evidence of the defendant's marital indiscretions during the forthcoming trial. The assignment is without merit. There is no occasion, prior to trial, to seek test rulings from the trial court upon questions of the admissibility of oral evidence that may or may not be offered. Cf. ORS 141.150 for the suppression of evidence seized under a warrant, and State v. Chinn, 231 Or 259, 373 P2d 392 (1962), for the suppression of illegally seized evidence generally.
9. If the trial judge desires to have an informal conference with counsel prior to trial in order to minimize possible hazards that might lead to a mistrial, *130 or in other ways to expedite the taking of testimony, that is a matter of discretion with the individual judge. We have found no authority, however, which requires the court to submit to a dress rehearsal in which the defendant may explore the state's evidence and the court's rulings thereon out of the presence of the jury in preparation for the trial itself.
Because of the errors noticed above, the cause must be retried.
Reversed and remanded. | bce0e50c22a2e69266cce165d3f8952f27231352b10ac83cf341955df0013412 | 1963-04-10T00:00:00Z |
f1ba6176-c322-44e2-88c1-8d8f22bb3e04 | Suburban Properties, Inc. v. Hanson | 234 Or. 356, 382 P.2d 90 | null | oregon | Oregon Supreme Court | Reversed May 29, 1963.
*357 Roger N. Rook, Milwaukie, argued the cause for appellants. On the brief were Erlandson & Rook.
George A. Haslett, Jr., Portland, argued the cause for respondent. With him on the brief was Robert J. Johnston.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
REVERSED.
LUSK, J.
This is a suit in equity to cancel a deed of conveyance of real property. The circuit court entered findings *358 of fact, conclusions of law, and a decree for the plaintiff and the defendants have appealed.
During the pertinent times, the plaintiff was the owner of real property in Washington county, Oregon, which it was engaged in developing for residence purposes. The defendants are Howard Hanson, a builder and contractor, and his wife. Mr. Hanson acted as agent for his wife throughout the transaction in question and he will be hereinafter referred to as the defendant.
The dispute arose out of a sale in November, 1960, by the plaintiff to the defendant of two parcels of land referred to in the record as lot A and lot B in a subdivision known as "Harvest Hill." The agreed purchase price of each lot was $2,300 and, as to each lot, the defendant gave to the plaintiff two promissory notes, one for $1,000 payable on demand, the other for $1,300, payable six months after date. Defendant further agreed to build a house on each lot, and that as to each lot the $1,000 note should be paid out of the first moneys received by the defendant from a building loan to be obtained by him and that the $1,300 note should be paid when the house built on such lot should be sold. The reason why the notes were split up in this manner was that the lots were part of a tract which plaintiff was buying on contract, which provided that upon each $1,000 payment, a lot would be released from such contract. To clear the title to the lots here involved and thus enable the defendant to get his building loan, plaintiff made payment of $2,000 on its contract of purchase. Payment of the $1,000 notes by the defendant would reimburse plaintiff for this outlay.
Deeds to both lots were delivered by the plaintiff to the defendant. No mortgage or other security was *359 given by the defendant. The present controversy relates only to lot B and arises out of the failure of the defendant to build a house on that lot. The court found that this failure constituted a breach of the contract and warranted the remedy of cancelation. We agree that the defendant did breach the contract in the particular stated, but are of the opinion that the court erred in decreeing cancelation of the deed.
A principal contention of the plaintiff in support of the decree is that delivery of title to lot B was never made to the defendant.
The evidence bearing upon this question is as follows: Under date of November 1, 1960, the parties entered into a written agreement on a printed form styled an "earnest money receipt", for the sale and purchase of the two lots, in which the plaintiff acknowledged the receipt of $4,600 from the defendant "as part payment" for the purchase thereof. The plaintiff was represented in the transaction by Francis DeHarpport, sales manager for Key Investment Company, which was the administrative agent of the plaintiff. The agreement recites that the plaintiff had sold the property on that day to the defendant for the sum of $4,600 and that possession was to be delivered "at once," words written in by Mr. DeHarpport. The four notes representing the purchase price were executed and delivered on the same day. On each of the $1,000 notes DeHarpport wrote "to be paid out of 1st disbursement", that is of the loan on the applicable lot; and on each of the $1,300 notes he wrote: "To be paid when [house designated] is sold". DeHarpport testified that he explained to the defendant and the latter agreed that "the other $1,300 he was to pay as soon as the house was sold or on or before six months." Defendant agreed in his testimony that this was the *360 understanding. All the notes bore interest at the rate of six and one-half per cent per annum from date until paid.
The deeds appear to have been prepared later the deed to lot A is dated November 30, 1960, and was recorded on January 11, 1961; that to lot B is dated November 21, 1960, and was recorded on September 20, 1961. They are general warranty deeds, with the usual covenants and each expressing a consideration of $10 and other good and valuable considerations. Mr. DeHarpport testified that he agreed to give the defendant the deed to lot A at once because he needed that deed in order to obtain his mortgage, but that the defendant was to be given the deed to lot B when he was ready to start the second house. The defendant was unable to state the exact date when he received either deed. The description of the property in the deed to lot B (whenever it may have been originally prepared and delivered) had to be corrected so as to decrease the size of the lot in order to meet the requirements of Washington county in connection with the obtaining of a building permit. This alteration was made in the office of Key Investment Company. The defendant testified that Mr. Ray Mills, a member of the staff of Key Investment Company who did most of the purchasing for the plaintiff, decided upon the alteration, and that it was typed in defendant's presence by Al Johnston, office manager of Key Investment Company, and that the corrected deed was then handed to him either by Mr. Johnston or by Mr. Mills. The defendant could not remember the date of this occurrence, but thought it could not have been more than a week or two after the deed was dated, that is, November 21, 1960. Mr. Johnston testified to making the alteration on the typewriter under the *361 direction of Mr. Mills, who, he said, was familiar with the problem involved. Johnston had no other connection with the matter, though he was present when the defendant came into the office and talked to Mills about the difficulty he was having on account of the size of the lot as described in the deed as it was originally drawn. Mr. Johnston testified that after the correction was made he either handed the deed to Mr. Mills or placed it in front of him; he did not know whether after that Mills handed it to the defendant.
Mr. Mills was not called as a witness by the plaintiff and the record contains no explanation of the failure to call him.
1-5. As authorities cited by the plaintiff show, the question of delivery is a question of fact rather than law, depending upon the intent of the grantor to vest an estate in the grantee, Lancaster v. May, as Administrator, 194 Or 647, 655, 243 P2d 268; Jobse v. U.S. Nat. Bank, 142 Or 692, 696, 21 P2d 221. The evidence here establishes that the corrected deed to lot B was manually delivered to the defendant by a duly authorized agent of the plaintiff. That this was done with the intention to vest title in the defendant is the only reasonable inference. "The least questionable proof [of delivery] is a manual transfer of the instrument by the grantor to the grantee, requiring strong evidence to overcome it." III American Law of Property 312-313, Deeds § 12.64. The deed was executed in pursuance of a previous understanding with the defendant and was beneficial to him and therefore his acceptance is presumed, Lancaster v. May, supra; III American Law of Property 333. It is true that the deed was not recorded until several months later, but recording was not necessary for the validity of the instrument as between the parties. An important fact *362 is that without title to the property the defendant would be unable to obtain the loan which both parties contemplated. Defendant was obligated to pay interest on the purchase price from the date of the agreement, November 1, 1960. In these circumstances, it would be unreasonable to conclude that the grantor lacked an intention to transfer title to the property or that the grantee did not accept it.
Counsel for the plaintiff at the trial practically conceded failure of proof on this issue when he stated to the court at the conclusion of the testimony:
The court found that the evidence did not support the claim of non-delivery and with its finding we agree.
The next question is whether, under established rules in this class of cases, the plaintiff is entitled to the remedy of cancelation, or whether it must resort to its remedy at law in an action on the notes and for damages, if any have been suffered.
6. This is a case in which there was a fully executed sale of land by the plaintiff to the defendant accompanied by a covenant on the part of the defendant to build a house on the land and pay the plaintiff two promissory notes given for the purchase price, one out of a building loan to be obtained by the defendant, the other when the house should be sold. The parties did not agree, however, that the loan and the proceeds of the sale of the contemplated house were to be the *363 exclusive source of payment of the notes. Were that the case, we would have a different lawsuit. On the contrary, the defendant was legally bound to pay the principal and interest of these notes, one on demand, the other in six months, whether or not a loan was obtained or a house built and sold. Doubtless, one purpose of the agreement was to enable the defendant to make a profit out of the sale of the projected houses and another was to provide the defendant with the means of securing the funds for payment of the notes to the plaintiff, but neither of these facts in any way alters the unconditional character of the defendant's obligation.
If the house had been built as agreed, it would have been, together with the ground upon which it was built, the property of the defendant. All that plaintiff would have been entitled to in that case was payment of the notes. The question here is whether the different and drastic relief of cancelation of the deed is available to the plaintiff because of defendant's failure to build the house in accordance with his agreement. It is to be borne in mind that there was no fraud or mistake or confidential relationship or other similar ground of equitable jurisdiction, and there is no pleading or proof that the defendant is insolvent.
As authority for the claimed right, plaintiff cites Krebs Hop Co. v. Livesley, 51 Or 527, 92 P 1084, where the court enunciated the rule regarding the right of one party to an executory contract to rescind for some failure on the part of the other party. "To justify such a course of procedure" it was said "there must be a failure in some substantial particular, which goes to the essence of the contract, and renders the defaulting party incapable of performance, or makes it impossible for him to carry out the contract as *364 intended." 51 Or at 533. That case involved a contract for the sale of hops extending over a period of five years. The ground of the suit was that the plaintiff (the seller) had assigned the contract to a bank. The court said:
As the proof of the defendants did not meet this test the remedy of rescission was held to be not available.
The distinction of first importance between this and the Krebs case is that the contract in the latter was wholly executory, while here it is fully executed except for defendant's agreement to construct a building on lot B. As this court said (quoting from 6 Cyc 336) in DeYulio et ux. v. Brownell et ux., 107 Or 651, 657, 215 P 576:
The distinction in this regard between an executory and an executed contract was pointed out in McMillan v. Am. Suburban Corp., 136 Tenn 53, 59, 188 SW 615, 617, LRA 1917B 401, 403, in this language:
In that case a vendee in possession under an executed contract who sued for rescission because of breach of the vendor's agreement to lay water pipe lines to the property was held to be limited to his legal remedy, there being no claim of fraud or mistake or that the vendor was insolvent. The court indicated, however, that had the contract been executory, there would have been a different decision.
A similar case was Emigrant Co. v. County of Adams, 100 US 61, 70-71, 25 L Ed 563, where the court said:
See, also, Crampton v. McLaughlin Realty Co., 51 Wash 525, 99 P 586, 21 LRA NS 823; 8 Thompson, Real Property (perm ed) 575, § 4607; 12 CJS 982, *366 Cancellation of Instruments § 29; 9 Am Jur 374, Cancelation of Instruments § 29.
It has not been suggested by the plaintiff, and it could not be successfully maintained, that the defendant's undertaking to build the two houses was a condition subsequent upon the breach of which restoration of the status quo could be decreed. The law with respect to the subject is thus stated in 5 Pomeroy's Equity Jurisprudence (2d ed) 4755, § 2108:
See Hewett v. Dole, 69 Wash 163, 124 P 374; Lawrence v. Gayetty, 78 Cal 126, 133-135, 20 P 382, 12 Am St Rep 29, where the foregoing principle is stated and applied.
There was, of course, no express agreement making defendant's promise a condition and there is nothing in the evidence pertaining to this loose oral arrangement which would justify a court in so construing it. There is no evidence that plaintiff has sustained any damages by reason of defendant's breach that are not capable of reasonable ascertainment or, for that matter, that it has been damaged at all. If it should be said that plaintiff has suffered because of delay it could be answered that defendant must compensate *367 for this delay by the payment of interest. So far as this record reveals, plaintiff has an adequate remedy at law by an action on the notes.
7. Counsel for plaintiff argue that defendant is estopped from claiming any rights under the original agreement because he stood by, without objection, while plaintiff commenced building a house on lot B. The facts material to this contention are as follows: About September 15, 1961, the plaintiff went into possession of lot B and commenced construction of a house on it. Before doing so it obtained a report from a title company that the title to the lot was in its name. The defendant was away from his home on vacation from September seventh to seventeenth. On his return he learned that a man named Olds, who was acting for the plaintiff, had left word at defendant's home for defendant to remove his construction forms from lot B so that Olds could build on it. Hanson went to the property and saw that construction had commenced and in order to "find out where I stood" consulted an attorney, following which, on September 20, he recorded the deed to lot B.
We see no element of estoppel in these facts so far as the issues of the present case are concerned. Since the plaintiff had no legal right to take possession of lot B, it did so at its peril. Whether in future litigation, should there be any, arising out of the erection of a structure by one person on another's land (see Jensen v. Probert, 174 Or 143, 148 P2d 248), defendant's seeming acquiescence in the face of knowledge of what was going on would be a relevant factor, is a question not now pertinent and concerning which we neither express nor intimate an opinion.
8. Finally, the plaintiff urges that late in September, 1961, the parties agreed upon a compromise *368 settlement of their controversy which the defendant wrongfully refused to go through with. It appears that defendant had found a purchaser for the dwelling house on lot A and that plaintiff rendered some service in financing the purchaser so that the defendant would receive cash in payment of the purchase price. Plaintiff's testimony is to the effect that the consideration for this service was defendant's promise to give plaintiff a quitclaim deed to lot B. Defendant denied this. The trial court made no finding upon this issue. Evidently, there was discussion of the matter between the parties and it is a fact that defendant was handed a quitclaim deed to lot B and asked to sign it, but he refused. The evidence is not convincing that there was a meeting of the minds upon the alleged agreement.
The decree is reversed and the suit dismissed. No costs or disbursements will be allowed. | a64697ca478af151d6f1d73369ad21eb299b5755166f585aa682fc039dc45111 | 1963-05-29T00:00:00Z |
075a1935-001f-42ee-a4a4-499c95df34b9 | Christensen v. Prudential Ins. Co. | 235 Or. 93, 384 P.2d 142 | null | oregon | Oregon Supreme Court | Affirmed July 24, 1963.
*94 A.J. Morris, Eugene, argued the cause for appellant. On the brief were Bailey, Hoffman, Spencer & Morris, and Lewis Hoffman, Eugene.
Robert F. Maguire, Portland, argued the cause for respondent. On the brief were Maguire, Shields, Morrison, Bailey & Kester, and Thomas S. Moore, Portland.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
PERRY, J.
The plaintiff, as beneficiary under a policy of life insurance, brought this action to recover under a clause providing for double indemnity in case of accidental death. At the close of the case the defendant moved for a directed verdict, which motion was granted by the court, and the plaintiff appeals. The policy provided:
Both parties agree that the insured's death must have resulted from means which were not only external, but violent and accidental.
The defendant admits the death of the insured, Andrew S. Christensen, Jr., plaintiff's status as beneficiary, and the payment of the face value of the policy, but denies that the insured's death occurred solely through external, violent and accidental means.
*95 The facts are not in dispute, and are as follows:
The insured was 44 years of age at the time of death on March 14, 1961. He resided in Drain, but carried on his vocation in Eugene. He was described by his physician as having a drinking problem, but there is no evidence of intoxication at the time of death. A gastric resection for an ulcer had been performed in 1954, and there had been a full recovery. To his physician who had examined him a few days prior to his death, he appeared to be in normal physical health, except for his complaint that he had "pain in the superpubic region," which is just over the bladder, the lower abdomen, and he complained of frequent urination. The doctor reached a conclusion that he had "cystitis, i.e., an inflammation of the bladder." He often complained to Mrs. Christensen of pains in his abdomen, but did not just prior to his death.
The evening prior to Mr. Christensen's death he watched motion pictures of the Patterson-Johansen fight at the Elks Club in Eugene, returning home about 10 p.m. He appeared normal that evening. The following morning, although he had planned to go to Eugene, he decided to sleep in, and his wife proceeded to Eugene without him. Between noon and 3 p.m. he ate lunch at a restaurant in Drain. Mrs. Christensen arrived home from Eugene around 3:30. The deceased was home, and she prepared coffee for them. About 4 p.m. she left for work.
At about 6:30 p.m. the son Dennis arrived home. He found his father sitting in a rocking chair, dressed in his pajamas. The son prepared tomato soup and tuna fish sandwiches. The deceased partook of the soup and ate one of the sandwiches. The son testified the food was palatable and he had no trouble in digesting *96 it. There is no evidence that the food was harmful.
Mrs. Christensen returned home about 8 p.m. She noticed her husband was in bed and asleep, snoring. At about 10:30 Mrs. Christensen went into the bedroom and noticed he was on "his hands and knees, * * * his head was turned to one side and he had vomited." She testified he got on his hands and knees "that way quite often if he was restless or uncomfortable."
Mr. Christensen was apparently dead when found by his wife. Dr. McMilan, who conducted the autopsy, made the following diagnosis: (1) Suffocation with advanced congestion and edema of the lungs; (2) obstruction of the trachea and bronchi by aspirated gastric contents; (3) coronary arteriosclerosis with areas of insufficiency; (4) an old partial gastric resection; (5) right ventricular dilatation; and other findings entirely immaterial to the issues. He found no acute disease of the stomach and was of the opinion that the cause of death was suffocation caused by the gastric content plugging the airways to the lungs. The gastric content in the airways was identical with that found in the stomach. It was unidentifiable as food, "brownish green" in color and granular in content. The fact that the content was granular was not abnormal. It came about through the regular digestive process.
All of the medical testimony is that the gastric content arrived in the air passages to the lungs through failure of the epiglottis to function properly and close and keep closed the air passage from the esophagus to the lungs while the deceased was vomiting; and that the epiglottis, an elastic cartilage, is not controlled *97 volitionally, but by the autonomic nervous system. All of the medical testimony offered upon the subject agrees that the vomiting was not caused by the food itself, and the regurgitation was due to some failure of the stomach to perform its proper function; that usually this failure of the stomach to perform is due to some irritation or inflammatory process of, or in, the stomach lining.
The question presented is whether the aspiration of the contents of the stomach by causes unknown and the failure of the glottis to close properly so that the contents of the stomach could not enter the lung passages, causing suffocation and death, comes within the meaning of the language of the policy. We are of the opinion that these facts do not bring the deceased's death within the policy terms.
1. The policy, with respect to a compensable injury, provides that the injury shall be the result of external, violent and accidental causes. "[E]ach of these elements must be present to create liability * * *." Fries v. J. Hancock Mut. L. Ins. Co., 227 Or 139, 360 P2d 774.
The plaintiff cites these cases wherein it was held that the taking of food or other substances by mouth fall within the definition of an external cause: Jenkins v. Hawkeye Commercial Men's Association, 147 Iowa 113, 124 NW 199 (accidentally swallowing a fish bone); Maryland Casualty Co. v. Hudgins, Tex Civ Ct of Appeals, (1903), 72 SW 1047 (oysters eaten which inflamed the intestinal walls); (reversed on other grounds, 97 Tex 124, 76 SW 745); Gohlke v. Hawkeye Commercial Men's Association, 198 Iowa 744, 197 NW 1004 (taking Sal Hepatica effervescent salts, which threw off gas, causing the glottis to close so that death *98 resulted from asphyxiation); American Acc. Co. of Louisville v. Reigart, 94 Ky 547, 23 SW 191 (swallowing a piece of beefsteak which accidentally lodged in the "windpipe", causing death).
The above cases, however, will not support the plaintiff's position here taken, for each case discloses that the substance taken into the body was not, at the time taken, fit or suitable in its then condition for human consumption, thus being the direct cause or means of producing the injury. As previously pointed out, there is no evidence in this case that the food as taken into the body was not wholly fit for human consumption or could cause any bodily injury.
The plaintiff also relies upon Peoples Life Ins. Co. v. Menard, 124 Ind App 606, 117 NE2d 376. In that case the insured had eaten as his last meal, cubed boiled potatoes, cubed canned meat, spinach, bread, butter, coffee, and cinnamon rolls. Very shortly after eating, the insured vomited and died. "It was determined by the medical testimony that the immediate cause of decedent's death was asphyxiation due to choking on regurgitated food and that such asphyxiation was caused by the accidental lodging in decedent's larynx of two small pieces of "Prem" meat measuring one centimeter by eight-tenths centimeter by one-half centimeter in size, and also some soft food material and some greenish material like spinach." A majority of the court, without clearly distinguishing between the mechanical failure of the bodily action caused by the food itself, and the mere failure of the body's mechanical action, held that the insured's death was caused by external, violent and accidental means. The minority drew this distinction and dissented. The majority opinion has been subsequently examined by other courts, and in all instances rejected.
*99 In McCallum v. Mutual Life Insurance Co. of New York, 175 FSupp 3, an autopsy revealed the immediate cause of death was the failure of the glottis to function properly, with the result that vomit was taken into the windpipe and bronchi, which caused suffocation. The court stated:
In Radcliffe v. National Life & Accident Insurance Co., Tex CCA (1957), 298 SW2d 213, the insured died as a result of the regurgitation of the stomach contents which lodged in the trachea and bronchi, causing suffocation. There was no evidence that the food ingested was of "deleterious or hurtful quality." The court held the death was not due to external and accidental means. In speaking of the Menard decision, the Texas court said:
In Spott v. Equitable Life Insurance Company of Iowa, 25 Cal Rptr 782 (1962), the insured died of suffocation by the regurgitation of liquid which lodged in the trachea and bronchi, due to the failure of the glottis to close. The court held the death did not result "solely through external, violent and accidental means," and said:
See also, to the same effect, Towner v. Prudential Insurance Company of America, La App, 137 So2d 449, above cited.
*101 2. This court has firmly established the rule that under a policy such as here presented the cause of the injury must be accidental, not the result. "In other words, under such a policy as this the liability must be determined by causes rather than consequences." Kendall v. Travelers' Protective Assn., 87 Or 179, 190, 169 P 751.
3. In the matter before us there is no evidence that the nausea and vomiting or the failure of the glottis to close were caused by the food taken. Common experience teaches that vomiting, when not caused by harmful food taken or by trauma, is the result of a physical disorder.
4. The agreement of the physicians that the aspiration of the stomach content into the trachea and bronchi was due to some failure of the autonomic system to close and keep closed the glottis, and not to the content of the stomach also discloses that the fact there was something in the stomach that had been food which in its changed condition reached the trachea and bronchi, blocking the passage of air to the lungs, was a condition and not a cause.
The judgment of the trial court is affirmed. | 46276e58c0ac8fb153cc548fec0abec51fa2f4ed836df46ca15a60b4c0e25850 | 1963-07-24T00:00:00Z |
95b01edd-e1fc-4752-8557-0e96e0e0f8df | Anderson v. Gladden | 234 Or. 614, 383 P.2d 986 | null | oregon | Oregon Supreme Court | Affirmed June 26, 1963.
*616 Louise Jayne, Portland, argued the cause and filed a brief for appellant.
C.L. Marsters, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Attorney General, Salem.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
*617 GOODWIN, J.
Petitioner was convicted in 1955 of second degree murder. Judgment was affirmed on appeal. State of Oregon v. Anderson, 207 Or 675, 298 P2d 195, 60 ALR 2d 850 (1956). Subsequently, Anderson challenged by writ of habeas corpus the jurisdiction of the convicting court. Relief was denied. Anderson v. Britton, 212 Or 1, 318 P2d 291 (1957), cert. den. 356 US 962, 78 S Ct 999, 2 L Ed2d 1068 (1958). He now seeks under the Oregon Post-Conviction Hearing Act, ORS 138.510 to 138.680, to present additional reasons why he should have a new trial.
The essential background facts are reported in the cases cited above. It is sufficient for the present case to recall that Anderson was convicted of killing one Miller, within the boundaries of the Klamath Indian Reservation. Anderson is a member of the Klamath tribe. In Anderson v. Britton, he had challenged without success the jurisdiction of the state courts to try an Indian for a murder committed in Indian country.
Anderson now seeks to overturn his conviction by alleging a number of irregularities that fall under two general headings: (a) denial of equal protection, and (b) new evidence related to the merits. Denial of equal protection of the law is charged in the formation of the grand jury and petit jury. Newly discovered evidence of perjury, going to the merits of the original case, is alleged as an additional basis for a new trial. We will first consider the objections to the grand jury and to the trial jury.
Anderson alleges inter alia: (1) that he was discriminated against because of his race and color in that Indians were systematically excluded from the Klamath County grand jury which indicted him; (2) *618 that Indians were systematically excluded from the Harney County jury list (trial being had in that county upon his motion for a change of venue); and (3) the Harney County officers charged with the preparation of jury lists had not complied with ORS 10.110 to 10.160, the statutory method of selecting jurors, with the result that professional, or volunteer, jurors made up a part of the panel.
To these allegations, the state interposed a demurrer, thereby admitting, at least for a limited purpose, the three classes of alleged irregularities. The trial court sustained the demurrer with reference to the systematic exclusion of Indians from the trial jury in Harney County. The cause eventually came to trial upon certain other factual issues. These included the alleged failure of Harney County officials to comply with ORS 10.110 to 10.160 (the "professional jurors" issue). The trial court found no prejudice against Anderson resulting from the failure of the county officials strictly to follow ORS 10.110 to 10.160 in the formation of jury lists. The trial court also held that Anderson waived the irregularities, if any, in the make-up of the Klamath County grand jury when he pleaded to the indictment.
The state has argued in this court a number of defenses to the present proceeding. The first is that the objections to the grand jury and to the trial jury should have been taken in Anderson's original appeal to this court. Since they were not so taken, the state says they are barred by ORS 138.550 (2):
The foregoing quotation contains the statutory form of the general rule which this court followed for many years in habeas corpus cases prior to the adoption of the present post-conviction statute. In the petitioner's most recent appearance in this court we said "* * * that habeas corpus will not lie where an appeal was taken and the question was not raised, when if it had been raised, the remedy by appeal would have been adequate." Anderson v. Britton, 212 Or supra at 7.
1. With reference to his objections to the grand jury and to the trial jury, Anderson had an opportunity in his appeal to present whatever objections he thought had merit. His current petition does not allege a sufficient reason for his failure earlier to challenge these supposed irregularities. (He alleges that he has been in custody at all times since the date of the crime.) Anderson's brief asserts that he had insufficient knowledge of the facts to make known his objections to the jury at an earlier time, but his petition does not so allege. Assuming, however, that there was in fact systematic exclusion of Indians and that Anderson knew nothing of it until after his trial, it does not follow that he could not have raised the matter in his appeal.
We are not aware of any rule that excuses a person in custody from the duty to bring up in his appeal such questions as he thinks may have bearing upon the lawfulness of his conviction. His attorneys were not in custody. Any legitimate concern about the jury could have been investigated. Anderson knew there *620 were no Indians on his jury. The reasons for diligence in the appeal are fully set forth in Anderson v. Britton, supra, and need not be repeated here.
2. This case properly falls within the rule set forth in ORS 138.550 (2), and could be disposed of under that section of the code. However, the petition, briefs and arguments deal with constitutional rights which are entitled to federal[1] as well as state protection. Rather than have the petitioner contend that we have denied him his day in court, we shall consider the questions on the merits as if they had been timely presented.
3. There is no merit, however, in the belated objection to the failure of the Harney County officials to comply with ORS 10.110 et seq. in selecting jury panels. These defects do not amount to a calculated denial of equal protection of the laws. The mere fact that volunteers (professional jurors) were permitted to serve would not, therefore, present a constitutional issue. Such a defect affords no basis for post-conviction relief. Brooks v. Gladden, 226 Or 191, 358 P2d 1055 (1961), cert. den. 366 US 974, 81 S Ct 1942, 6 L Ed2d 1263 (1961); and see Shotwell Mfg. Co. v. United States, 371 US 341, 83 S Ct 448, 9 L Ed2d 357 (1963).
4, 5. On the race question, Anderson's petition perhaps does allege a denial of rights guaranteed by the federal constitution. Systematic exclusion from the jury of members of a defendant's race, if proven, would be a denial of equal protection of the laws. See, e.g., Cassell v. Texas, 339 US 282, 70 S Ct 629, 94 L Ed *621 839 (1950) (grand jury); Patton v. State, 332 US 463, 68 S Ct 184, 92 L Ed 76, 1 ALR2d 1286 (1947) (grand and petit juries). See, also, annotations, 52 ALR 919, 1 ALR2d 1291, 82 L Ed 1053, 94 L Ed 856, and 97 L Ed 1249. The trial court may have been of the opinion that the petition did not allege facts which, if proven (or admitted), would show a calculated system of racial prejudice resulting in a denial of equal protection. In the alternative, the trial court may have deemed the objections as waived. Both theories are discussed in the colloquy. The record does not reveal the basis for the trial court's ruling as clearly as it might have. If the ruling was correct on either basis, however, it is our duty to affirm.
6-9. In testing upon demurrer the allegations of racial prejudice in Harney County upon demurrer, we have to assume their truth. Anderson's petition alleged that there were many qualified Indians in Harney County, and that none had ever served on any jury. Anderson then concluded that systematic exclusion existed. If we are permitted to speculate that systematic exclusion was the only possible explanation for such a state of affairs, the petition does not say who excluded the Indians. A separate affidavit says that such exclusion was practiced by the county clerk, and was based on racial grounds. The petition, however, alleged no such facts. The most that can be said for the pleading is that it contained a conclusion which, since there was no motion to make it more specific, might have justified the admission of evidence to prove it. We will treat the pleading, although not artfully drawn, as sufficient against a demurrer in a case in which liberty is at stake. Such a petition, therefore, ordinarily would require an answer and the taking of testimony. In the case at bar, however, the petition incorporated *622 by reference such public records as to make the petition manifestly contradictory, if not, indeed, frivolous with reference to Harney County.
The trial court was entitled to take judicial notice of the federal decennial census most nearly relevant to the case at bar (1950 or 1960). The census for 1950 had been incorporated by Anderson in his pleadings. It is not significantly different from that of 1960. The 1960 census for Harney County reveals the following racial distribution: white, 6558; negro, 6; all others (not further classified), 180. Of the 180 persons not otherwise classified, the court can only speculate how many were members of any particular race. Some undisclosed number may have been members of an American Indian nation, Klamath or otherwise. We can assume that some Indians did, in fact, reside in Harney County. We have no way of knowing how many. Common knowledge, however, would supply an inference that not all the Indians would be adults, or registered voters, or, if not voters, otherwise available to serve as jurors, i.e., by reason of having their names enrolled on the tax rolls so that they might be drawn in the ordinary course of events. If less than half of the general population were registered voters, it may be assumed that the Indian population, whatever it was, would not be likely to furnish a greater proportion of registered voters, and hence jurors, in any event. The petitioner's evidence showed 3,087 voters in Harney County in 1958. Even if we were to speculate that as many as 80 or 90 of the voters were Indians, there is no reason to believe that the ordinary probabilities had ever been tampered with. Mathematically, the odds would seem to be against a juror of a given nonwhite race being drawn in a given term of court. Jurors were not frequently drawn because *623 there was little demand for them. In 1955 there were eight criminal trials in the county.
On the score of systematic exclusion of a particular race, while the bald assertion thereof in the pleading ordinarily might state grounds for relief, it cannot do so in this case where it is so patently contrary to common sense. It might have been better practice to permit the petitioner to put on whatever proof he might have had, but the facts to be proven were so implausible that we do not think it was reversible error for the trial court to sustain the demurrer and put an end to an obvious exercise in futility.
10-12. We are likewise satisfied that Anderson's petition concerning the failure of Klamath County officials to put Klamath tribesmen on the grand jury in that county was properly disregarded. The truth of the assertion is assumed. Anderson alleged that he suffered prejudice because no Klamath Indians had ever served on the grand jury. We do not need to decide whether a racial bias could have accounted for the fact that Klamath tribesmen did not serve on local juries. The trial court held that if there was a calculated systematic exclusion of grand jurors on racial grounds the objection was waived when Anderson pleaded to the indictment. Since the indictment itself can be waived, there is no reason to hold that objections to the grand jury cannot also be waived.
In considering whether Anderson waived his objections to the grand jury, there are considerations which suggest with equal force a waiver of objections to the trial jury. We take into account the following facts which appear in the record or are matters of judicial knowledge: Anderson has been represented by counsel at all material times. The trial had been history for several years before it occurred to Anderson to make *624 any of his present objections to the juries. Anderson and his counsel at the time of trial knew as much about the ethnic and racial composition of the population in the relatively sparsely populated counties here involved as they know now. Anderson's concern about the publicity attending the crime prompted him to move for a change of venue to Harney County. The record does not suggest that his misgivings about a fair trial in Klamath County in 1954 had anything to do with the fact that there were then no Indians on the grand jury. At the time the venue was changed to Harney County, Anderson employed a Harney County lawyer to assist his other counsel. The attorney had adequate time prior to trial to investigate the composition of the jury if anyone thought it was important. There was also time in which to institute proceedings that would compel the lawful drawing of a panel of jurors in that county. We are satisfied from the record before the court that, if Anderson ever had any legitimate objection to the grand jury, he waived it when he entered his plea. Likewise, if he had a valid objection to the trial jury, he waived it when he announced that he was ready for trial. The fact that a given right is protected by the constitution does not mean that it cannot be waived. State v. Henderson, 182 Or 147, 199, 184 P2d 392, 186 P2d 519 (1947).
13, 14. In Garner v. Alexander, 167 Or 670, 120 P2d 238 (1941), cert. den. 316 US 690, 62 S Ct 1281, 86 L Ed 1761 (1942), we held that the alleged discrimination in excluding women from the jury panel could not be reached by habeas corpus. We did not hold that there was no remedy. It is manifest that, upon proper application to the circuit court, mandamus will lie to compel performance by the officers charged with statutory *625 duties in providing juries. State ex rel Venn v. Reid, 207 Or 617, 298 P2d 990 (1956) (mandamus denied, but only because brought against wrong officer). Timeliness is not simply a matter of convenience. If an accused seriously believes that his defense will be prejudiced because of the composition of the jury, he, or his counsel, should seek correction before, rather than after, testing the panel by its verdict.
We need not decide in this case whether, in other circumstances, some other state of affairs may militate against waiver. We hold that upon the facts alleged in this case, and upon the record brought to this court, the petitioner has not shown a valid reason for his failure to make timely protest if there was an element of racial prejudice in his original prosecution. We do not, of course, express any view on the truth of the allegations. The assignments of error relating to the several objections to the juries are without merit.
15, 16. In addition to his challenge of the petit and grand juries, Anderson contends that he is entitled to another trial because of newly discovered evidence that there was perjury in his first trial. A convict in another prison, one Garcia, has made equivocal affidavits that tend to cast some doubt on testimony he gave for the state in Anderson's original trial. The affidavits do not, however, suggest that Anderson did not kill Miller, or that some other person did. The most that can be said for the affidavits is that Garcia either lied when he said at Anderson's trial that he saw Anderson kill Miller, or he is lying now when he says he did not see Anderson kill Miller.
As a general rule, habeas corpus (or its statutory counterpart in post-conviction proceedings) does not provide relief from a conviction resulting from a mistake of fact, where proof of the jury's mistake must *626 depend upon the credibility of newly discovered evidence. See Shaver v. Ellis, 255 F2d 509 (5th Cir 1958).
The prospect of a court holding itself powerless to remedy a manifestly erroneous conviction obviously would not adorn the administration of justice. We do not, therefore, say that executive clemency is the only remedy available when newly discovered evidence proves the innocence of a prisoner. That hypothetical state of affairs, however, is not now before us. We leave open the question whether newly discovered evidence can ever give rise to any kind of common-law post-conviction judicial relief. Cf. Collins and Neil in 39 Or L Rev at 346-347, where it is suggested that further legislation might be necessary in order to provide a remedy within the framework of our present statutory post-conviction procedure.
In the case at bar, the credibility of the witness now claimed by Anderson to have been a perjurer was one of the contested issues during Anderson's trial. The issue was explored again on the original appeal. The situation Anderson now faces is one that has been known to him from the time he was indicted. If there ever was perjury in his case, Anderson necessarily would have known it. If such prejury was on the state's side of the case, Anderson should have made a timely motion for a new trial, or for additional time to obtain his proof, if time was needed for that purpose. ORS 136.850; 17.610.
With reference to the affidavits and the witnesses who appeared on the merits in the proceeding below, the trial court was satisfied that the so-called newly discovered evidence did not create a right to relief in a post-conviction hearing. We conclude that the trial court committed no error when it found the affidavits inadequate in fact to afford grounds for *627 relief. It is not necessary to decide, therefore, what sort of relief might lie if there were convincing evidence that an innocent person wrongfully had been imprisoned.
17. Anderson has made a final assignment of error based upon the fact that he did not have a preliminary hearing before he was indicted by the Klamath County grand jury. The assignment is without merit. The grand jury may indict a person it believes to be guilty of crime whether or not that person has been held to answer. ORS 132.380; Anderson ex rel Poe v. Gladden, 205 Or 538, 280 P2d 823 (1955), cert. den. 350 US 974, 76 S Ct 451, 100 L Ed 845 (1956).
We conclude that the trial court had an adequate basis for finding the petitioner's assertions of fact to be unsupported by proof. As noted, the trial court was free from error in its rulings on the law.
Affirmed.
O'CONNELL, J., specially concurring.
I concur in the result. I do not agree with that part of the majority opinion which holds that "if Anderson ever had any legitimate objection to the grand jury, he waived it when he entered his plea. Likewise, if he had a valid objection to the trial jury, he waived it when he announced that he was ready for trial." One does not waive his rights unless he knows or has reason to know that he has such rights.
The petition in the present case alleged "That it was only after petitioner's conviction and an investigation by his trial attorneys, Mr. Herbert P. Welch, Mr. Robert L. Welch, and Mr. Leonard H. Waterman, into the composition of the Harney County jury lists that the first Indian to serve on a Harney County jury was called on a special panel on September 28, 1955." It *628 would appear from this assertion that petitioner did not know of the systematic exclusion of Indians from the jury until after his conviction. There is nothing to suggest that prior to that time he should have suspected official misconduct in the preparation of the jury list.
However, the objection now raised by petitioner could have been raised in the previous post-conviction proceeding, i.e., the habeas corpus proceeding brought in June, 1956. Under such circumstances ORS 138.550 (3) is controlling and petitioner is deemed to have waived his objection by failing to present it in the previous proceeding.[1]
It is possible that under Fay v. Noia, 83 Sup Ct 822, 9 L Ed2d 837 (1963) the writ of habeas corpus is still available to petitioner in the federal courts, but I do not think that this should concern us. By the enactment of ORS 138.550 the legislative assembly has expressed the policy of this state with respect to the application of the principle of res judicata in post-conviction proceedings. Under that statute habeas corpus is not available to a petitioner who could have raised the question of due process in a previous post-conviction proceeding. That is a salutary rule. If the United States Supreme Court feels differently, *629 it is privileged to open the federal courts to provide additional relief. But we are not required to make our procedure conform to that policy.
DENECKE, J., concurs in this opinion.
[1] Anderson has also presented related questions in the federal court, but the disposition of those proceedings was such that the State of Oregon does not contend that the adverse rulings bar the petition in the case at bar. See Anderson v. Gladden, 188 F Supp 666 (D Or 1960), affirmed 293 F2d 463 (9th Cir 1961), cert. den. 368 US 949, 82 S Ct 390, 7 L Ed2d 344 (1961).
[1] ORS 138.550 (3) provides:
"(3) All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in his original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. However, any prior petition or amended petition which was withdrawn prior to the entry of judgment by leave of the court, as provided in ORS 138.610, shall have no effect on petitioner's right to bring a subsequent petition." | 6c903140906af1128bfc5f7582d832201e4d4960ac52c61ce4c20c5361caf51a | 1963-06-26T00:00:00Z |
1b8dcbfb-20a0-437d-b8cf-2a72e9b6ec51 | State v. Rood | 234 Or. 196, 380 P.2d 806 | null | oregon | Oregon Supreme Court | 234 Or. 196 (1963)
380 P.2d 806
STATE OF OREGON
v.
ROOD
Supreme Court of Oregon.
Submitted February 13, 1963.
Reversed April 24, 1963.
On the brief for appellant were Dale T. Crabtree, Sam A. McKeen, and John R. Thomas, Klamath Falls.
No appearance for respondent.
REVERSED.
ROSSMAN, J.
A complaint filed in the District Court for Klamath County charged the defendant with the crime of selling a lottery ticket. The charge was made under ORS 167.410 which reads:
From a judgment entered in the District Court which found the defendant guilty she appealed to the Circuit Court for Klamath County. The court last mentioned sustained a demurrer to the complaint on the ground that since the complaint did not specify the name of the purported purchaser it did not charge a crime. From the resulting order the state appealed to this court.
The state's (appellant's) sole assignment of error follows: "The trial court erred in sustaining the defendant's demurrer to the complaint."
According to the decision in State v. Light, 17 Or 358, 21 P 132, the indictment charged the defendant with "willfully and unlawfully playing at a certain game called `stud-poker,' a game played with cards, for money, and checks as representatives of money and value." The defendant demurred to the indictment and the demurrer was overruled. Upon his conviction he appealed. We take the following from the decision:
The information in State v. Pearlman, 154 Or 52, 58 P2d 1253, charged the defendant with the crime of unlawfully selling alcoholic liquor, but did not give the name of the purchaser. The pertinent part of the information was the following: "did then and there unlawfully and wilfully sell certain alcoholic liquor." In sustaining the sufficiency of the information, this court said:
In State v. Pulver, 159 Or 296, 79 P2d 990, the complaint against the defendants was filed in a justice court and charged them as follows:
It will be noticed that the complaint did not name the players. After conviction the defendants, upon *199 appeal, claimed that the complaint did not allege facts sufficient to constitute a crime. This court, quoting the governing statute, ruled as follows:
The sufficiency of the complaint was sustained.
In State v. Langley, 214 Or 445, 315 P2d 560, 323 P2d 301, an indictment charged that the defendant, who was the District Attorney for Multnomah County, wilfully neglected to prosecute one William B. Nettleton for gambling although he had good cause to believe that Nettleton had violated the gambling statutes of this state. In sustaining a judgment of guilty that had been entered against the defendant, this court said:
United States v. Sosseur, 87 F Supp 225, recognized as sufficient an indictment which read:
In State v. Hartung, 141 Minn 207, 169 NW 712, the defendant had been convicted of the violation of a statute which rendered it unlawful for any person to advocate that the citizens of Minnesota should not assist the United States in prosecuting any of its wars. The specific charge against the defendant was that in World War I he told Red Cross solicitors, "You are working for the wrong side. Germany is right in this war * * *." The defendant claimed that the indictment was defective in failing to allege the names of the persons to whom he addressed the offensive words. After taking note that the state constitution assured the defendant of his right "to be informed of the nature and cause of the accusation against him," the court, in sustaining the conviction, declared:
We take the following from People v. Malone, 68 Cal App 615, 229 P 1000:
People v. Gelardi, 77 Cal App 2d 467, 175 P2d 855, ruled as follows:
People v. Faust, 113 Cal 172, 45 P 261, sustained the defendant's conviction upon a charge that he sold intoxicating liquor "to two Indians." It did not give their names. The court stated:
We take the following from 4 Wharton's Criminal Law and Procedure, § 1781:
Without further review of the authorities it will be noticed that our precedents announced in cases substantially similar to the present one do not require that the indictment name the individual who, similar to the purchaser of a lottery ticket, participates in the criminal act. It will also be noticed that our precedents are in harmony with the trend of authority.
The sole issue is whether the complaint states a crime. We think that it does. The circuit court erred in sustaining the demurrer. Its challenged ruling is reversed. | ad84472539647bf32d1ca628036f292373916587e01cab06778058f9edeb0b82 | 1963-04-24T00:00:00Z |
d82e90af-ccb7-4a3a-9a84-bd77ede47a80 | Perkins v. Standard Oil Co. | 235 Or. 7, 383 P.2d 1002 | null | oregon | Oregon Supreme Court | Reargued May 3, 1963.
Reversed and remanded June 19, 1963.
Petition for modification denied July 15, 1963.
*8 Roger Tilbury, Portland, argued the cause and filed the brief for appellant.
James H. Clarke, Portland, argued the cause for respondent Standard Oil Company of California. With him on the brief were Koerner, Young, McColloch & Dezendorf and Clarence J. Young and Wayne Hilliard, Portland.
*9 Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, GOODWIN, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
ROSSMAN, J.
This is an appeal by the plaintiff, Clyde Perkins, from a judgment which the Circuit Court entered in favor of the defendants, four in number. The identity and circumstances of three of the defendants is immaterial upon this appeal; therefore, when we use the term "defendant" we will refer to the only defendant-respondent which is concerned with the appeal: Standard Oil Company of California.
The challenged judgment dismissed the Fifth Amended Complaint. The initial complaint was filed March 8, 1960. The Fifth Amended Complaint, that is the one that is now under attack, was filed January 8, 1962. It alleged that on April 6, 1953, the plaintiff who since 1945 had been a jobber of Standard's products in an area specified in the pleading signed a renewal contract with Standard which reappointed him jobber in the area. It further alleged that in violation of an implied condition of the contract Standard solicited directly the plaintiff's principal customer, Truax Oil Company. The words of the averment are "directly solicited and procured Truax Oil Inc., (Jess Truax) as its direct customer without the consent of plaintiff thereby eliminating plaintiff as a jobber from this account which was his largest single distributor. Plaintiff would have sold said products to Truax Oil, Inc. (Jess Truax) except for Standard's appropriation of Truax Oil Inc. (Jess Truax) as a direct customer."
A second cause of action appeared for the first time when, on September 14, 1961, the plaintiff filed his Fourth Amended Complaint. We turn to it as it appears *10 in the Fifth Amended Complaint. It was based upon an alleged promise made by Standard to plaintiff subsequent to its appropriation of Truax Oil Company that it would replace for a consideration the gallonage which plaintiff had lost as a result of a cessation of his dealings with Truax. The Circuit Court struck both causes of action, dismissed the complaint and awarded judgment to the defendant. The plaintiff attacks those rulings as erroneous.
The motion to strike which was sustained reads as follows:
The contract with which we are concerned was signed April 6, 1953. It authorized the plaintiff to sell without Standard's written consent "on a non-exclusive basis" the products which Standard consigned to him but only to service stations or consuming accounts. Standard's written consent was required before the plaintiff could sell to any other account. The plaintiff promised in the contract to use his "best efforts to promote the sale of products consigned hereunder" and to sell a specified minimum amount during each year. The contract provided that title and risk of loss should remain with Standard. The plaintiff further agreed to account to Standard for the proceeds of all sales and to look to his commission as his sole compensation. Standard reserved "the right to select its customers." A provision of the contract acknowledged that the "Consignee (plaintiff) is engaged in an independent business and nothing herein shall be construed as granting to Standard any right to control Consignee with respect to his conduct of said business." The contract required the plaintiff to keep complete records of sales and the proceeds therefrom; and to deliver on notice statements and accounts. Standard was given a right to inspect and measure the stocks of the plaintiff on any business day. The plaintiff was required to hold all proceeds of sales made by him "as trustee" for Standard until the proceeds were paid to it. At the inception of the contract the plaintiff was required to deliver to Standard a complete list of the names and addresses of all his distributors and submit to it the names of any new potential distributors. The plaintiff was required at his own expense to secure and maintain insurance for the protection *12 of Standard and to secure Workmen's Compensation under our state law for the benefit of his employees. Accompanying the contract that we have just summarized was a letter which read:
Listed at that point were the distributors to whom Standard authorized the plaintiff to continue to sell its products; among them was the Truax Oil Company. We assume that the part of Paragraph 3 which the words just quoted deemed material were these: "on a nonexclusive basis." We also assume that the following words found in Paragraph 9 are deemed by the quotation material: "Standard reserves the right to select its customers."
Truax was located in the Albany-Corvallis territory which was a part of the larger area assigned by the contract to plaintiff. The latter had been the sole distributor of petroleum products from which the Truax Oil Company had made purchases for many years. A contract which had initially been signed between the plaintiff and Truax in 1945 was renewed five years later and was in effect when plaintiff and Standard attached to their contract the paper from which we just quoted. About the time the contract between plaintiff and Truax expired in 1954 Standard and Truax bypassed the plaintiff and began negotiating with one another directly. Their negotiations culminated in the appropriation by Standard of Truax *13 as a direct customer to the exclusion of plaintiff. The plaintiff alleged that Standard's action in so doing constituted a breach of its contract with the plaintiff; it is that purported breach upon which the plaintiff depends as the basis of this case.
The first assignment of error charges:
In support of its first cause of action the plaintiff claims that the contract by its very nature contains an implied condition that Standard would not solicit business directly from his (plaintiff's) customers. Standard protests that such an implied condition would be contrary to the express terms of the contract since the latter (1) provides that the plaintiff was authorized to sell Standard's products only "on a non-exclusive basis" and (2) reserved to Standard the "right to select its own customers." Plaintiff proposes a more restricted interpretation of the terms of the contract that we just took from Standard's quotation. He concedes that the contract reserved to Standard the right to sell to any new accounts which it found, and to accept or reject any new accounts which he (the plaintiff) might obtain, but he insists that it does not permit Standard to solicit accounts which it had approved as his customers. It will be recalled that April 6, 1953, when the plaintiff and Standard signed the renewal contract they attached to it the document of which we have taken notice and which said:
*14 There Standard entered the name of the Truax Oil Company.
1, 2. ORS 42.220 provides:
This court has made the observation that in determining the intent of the parties to an instrument we must look to the entire paper rather than to isolated portions thereof. McCreight v. Girardo, 205 Or 223, 280 P2d 408, 287 P2d 414. We take the following from Williston on Contracts, Revised Edition, § 1293, page 3684:
The course of conduct pursued by parties in their performance of a contract, especially in a situation such as this where performance covered a course of years and involved extensive efforts, is frequently a reliable exponent of its meaning. In order to discover the correct interpretation of the contract, we will follow the rules just mentioned.
3. A reading of this contract reveals the following facts and conclusions to be drawn from them. In order to be successful in his business and to comply with the terms of his contract the plaintiff was obliged to make substantial investments in storage facilities, delivery trucks and other equipment. He was also obliged to hire employees. He was required to use his "best efforts" to promote the sale of Standard's products. Only if he sold Standard's products exclusively could it be said that he was using his best efforts to promote their sale. It is clear, then, that the contract limited his dealership to Standard products. Plaintiff was also required to sell a minimum quantity of other designated Standard petroleum products. If he at any time failed to sell the minimum quantity, Standard was at liberty to terminate its contract with him. Plaintiff's compensation was based exclusively on the sales he made to customers which he secured through his own efforts. No compensation was available for the plaintiff if he obtained customers for Standard who bought directly from it. Nor does the contract obligate Standard to compensate him for sales made directly by Standard to plaintiff's customers. Yet, it reserves to Standard the right to exercise a strict surveillance over a substantial segment of plaintiff's business. *16 In the exercise of this surveillance Standard had access to the names of a large number of the plaintiff's customers and the amounts that the plaintiff sold to them.
4, 5. The foregoing elements of the contract between plaintiff and Standard convince us that a condition must be implied that Standard would not solicit customers which had been obtained through plaintiff's efforts. The interpretation of the contract for which Standard contends would leave plaintiff and others in a position similar to his completely at the mercy of Standard. In the words of Justice Cardozo in Moran v. Standard Oil of New York, 211 NY 187, 105 NE 217 (1914):
And from the case of Wood v. Lucy, Lady Duff-Gordon, 222 NY 88, 118 NE 214 (1917), we quote:
6. 3 Corbin on Contracts, 278, contains an excellent discussion of the rule. It states it in the following words:
*17 See, also, 3 Corbin, supra, at 349-352 and cases there noted.
The implication of a condition finds support in many circumstances. We have alluded to only a few. Plaintiff's only source of return on his substantial investments in the business was the sales he made to his customers. If Standard was at liberty to solicit as direct customers, as it contends, "Truax or anyone else," plaintiff was in a state of economic servility; we do not believe that the parties intended such a result at the time the contract was signed.
Standard argues that the provisions that plaintiff could sell only "on a nonexclusive basis" and that Standard had the "right to select its own customers" conflict with a condition which would limit its liberty to appropriate the customers of its jobbers. Perhaps Standard's position would be tenable if the two clauses upon which it depends stood alone. But we have noticed that the instrument must be construed in its entirety. From the considerations which have gone before we must conclude that Standard was limited in its selection of customers to those which were not already customers of plaintiff. This conclusion finds support in the language used by Standard itself to approve the Truax account, among others, which plaintiff was servicing at the time the contract between Standard and himself was entered into. We have quoted the letter directed to the plaintiff by Standard which is attached to the contract and which recognized Truax as the plaintiff's customer.
The contract before us is obviously a form contract prepared by Standard. It is a contract of "adhesion" in the sense that it is a take-it-or-leave-it whole. Such contracts are regarded by some authorities as anachronistic or inconsistent with real freedom of contract. *18 At least they should be construed with an awareness of the inequality of the bargainers. See, e.g., Kessler, Contracts of Adhesion Some Thoughts about Freedom of Contract, 43 Columbia L Rev 629 (1943). There is nothing novel about an implied condition that Standard will not negotiate with Perkins' customers during the term of any contract between Perkins and his customer, even though Standard has reserved the right to compete in the territory. Competition in the territory must be presumed to mean competition for uncommitted accounts. See J.C. Millet Co. v. Distillers Distributing Corp., 258 F2d 139 (9th Cir 1959).
7. We do not deem it of consequence that the contract which bound the plaintiff and Truax had expired at the time Standard and Truax negotiated their agreement. The complaint alleged that plaintiff had serviced the Truax account for some years prior to the alleged breach, and that he would have continued to do so but for Standard's interference. The third amended complaint, to which defendant demurred, contained these same allegations. Each of these facts must therefore be construed as admitted by Standard. State ex rel Venn v. Reid, 207 Or 617, 298 P2d 990 (1956). Under those conditions we must conclude that Truax was a customer of plaintiff regardless of the non-existence of a written contract between them at the precise moment that Standard moved in.
We have shown that implied in the contract between Standard and the plaintiff was a condition that Standard would not solicit as direct customers accounts which had been obtained through plaintiff's efforts. It remains to be seen whether the complaint is valid as to the first cause of action set forth therein.
*19 The purpose of pleadings was described in Ross v. Robinson, 174 Or 25, 147 P2d 204 (1944) as follows:
And from Parker v. Faust, 222 Or 526, 353 P2d 550 (1960), we quote:
8. The purpose of requiring an exchange of pleadings is not to produce perfection in the statement of the issue but only to bring forth into the light the points that are in dispute. When those points are sufficiently revealed so that the opponent is apprized of what he must meet and the trial judge is given sufficient information so that he can rule advisedly during the progress of the trial, the pleadings have performed their function.
*20 The complaint alleges that Standard had entered into a contract with plaintiff, and that the plaintiff had at all times abided by its terms. Implicit in that contract which is attached to the complaint and incorporated therein is a condition that Standard will refrain from soliciting as its direct customers accounts which were obtained through the plaintiff's efforts. The complaint alleges that Standard solicited and procured Truax Oil as its direct customer. It alleges that Truax had for some years prior to that time been plaintiff's customer and that but for Standard's interference Truax would have continued to deal with plaintiff. It alleges that this action by Standard constituted a breach of its contract with plaintiff. It further alleges that plaintiff notified Standard of this breach. The date of the contract is clear. There can be no misapprehension as to which contract it is claimed Standard breached. Although the language of the complaint is apparently not couched in the precise words which Standard would like to have seen, we are convinced that it understood the issue which was intended to be raised. We conclude that the pleading is not defective and that it is valid as to the first cause of action. It follows that the trial court's dismissal of the first cause of action was error.
Plaintiff's second assignment of error relates to the trial court's dismissal of his second cause of action. Prior to dismissal, the court sustained a motion by defendant to strike the second cause of action. The grounds for sustaining that motion are not clear from the record. Standard attacks the second cause of action on three grounds. First, it claims that plaintiff introduced that cause of action for the first time in his fourth amended complaint. Second, it urges that plaintiff abandoned his first cause of action and substituted *21 an entirely new cause of action for the old. Third, it contends that the second cause of action is not germane to the controversy. On the basis of these contentions Standard concludes that plaintiff's second cause of action was properly stricken and dismissed.
Since all of these contentions are interrelated, we will consider them together. We quote the following from Zimmerle v. Childers, 67 Or 465, 136 P 349:
Merit v. Losey, 194 Or 89, 240 P2d 933 (1952) said:
In this case the plaintiff does not use the second cause of action to substitute a new cause of action for *22 the old, although it is clear from the above quotation that this could have been permitted since the case had not yet come to trial. Nowhere is there a hint of abandonment of the first cause of action by plaintiff. The second cause of action merely added a new cause of action to the one which had been the subject of controversy since the original complaint was filed.
Nor can we agree that the second cause of action is not germane to the controversy. Both causes of action find their roots in the contract between Standard and plaintiff. The amount of recovery for both causes of action is the same. Recovery upon one of them would preclude recovery upon the other. The same parties are involved in both. Much of the evidence which will go to prove the first cause of action will also sustain the second. In light of these considerations, we must conclude, as we gather the trial court originally did, that the second cause of action is germane to the controversy.
The second cause of action alleges all of the facts contained in the allegations of the first cause of action. In addition it alleges that Standard agreed to replace the gallonage lost to plaintiff through the cessation of plaintiff's dealings with Truax and that Standard failed to abide by this agreement. It thus states a cause of action for the breach of the second contract. The trial court erred in sustaining the motion to strike and in dismissing the second cause of action.
We are aware of the fact that the complaint (fifth amended) does not express itself with the degree of clarity that can be achieved. Nor does it identify the pleader's theory with the certainty that is frequently obtained. When a complaint is tested by a demurrer, strict construction against the pleading is the rule. Adherence to that rule is not a fetish it renders the *23 administration of justice through the medium of the trial judge more certain and prompt. Notwithstanding some lapses in the complaint from those demands, we conclude that the complaint states two causes of action for breach of contract. The challenged judgment is reversed and the cause is remanded for proceedings not inconsistent with this opinion.
LUSK, J., dissents.
Koerner, Young, McColloch & Dezendorf, Clarence J. Young, Wayne Hilliard, and James H. Clarke, Portland, for the request.
REQUEST DENIED.
ROSSMAN, J.
The defendant-respondent has filed in this court a document entitled "Respondent's Request for Modification of Opinion" which, after stating "Standard does not seek a rehearing," quotes three excerpts which it takes from the part of our opinion that states the controversy and then declares that they are not supported by the record. We think that our opinion does not misstate the facts.
If the defendant's purpose in calling the three excerpts to our attention sprang from a fear that unless they are modified the passages may be misused by its adversary during the trial, we explain that which is *24 obvious our opinion is not a set of findings of fact. It assumes the truth of the plaintiff's complaint and since the defendant has not submitted to the courts its version of the facts the statements made in our opinion cannot be attributed to the defendant except as a hypothesis for obtaining a ruling as to the law not the facts.
The defendant's request for a modification is denied. | 437444f6208fc85dc92cd0e81c70746bc22d346597c8e9e7a14d2c8714a9d3f6 | 1963-06-19T00:00:00Z |
ddee91cd-13b3-49c0-8d36-47fe249f0862 | Collins v. Lantz | 234 Or. 268, 381 P.2d 213 | null | oregon | Oregon Supreme Court | Appeal dismissed May 15, 1963.
Al J. Laue, Salem, argued the cause for appellant. With him on the brief were Williams and Skopil, Salem.
Allan G. Carson and Wallace P. Carson, Jr., Salem, argued the cause for respondent Lantz. On the brief were Carson, Carson & Carson, Salem.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
APPEAL DISMISSED.
PER CURIAM.
Plaintiff seeks to recover approximately $9,000 expended by him in repairing a steam tunnel which plaintiff alleges was damaged by the negligent conduct of *269 the defendants. Plaintiff appeals from a judgment based upon an order sustaining a demurrer interposed by defendant Lantz.
Plaintiff's complaint alleges that the defendants were negligent in certain particulars and that the negligence of the defendants "combined, concurred and was the proximate cause of the damages suffered by the plaintiff." Defendant Lantz demurred on the ground that it appeared upon the face of the complaint that the action was not commenced within the time limited by statute. The demurrer was sustained and a judgment was entered "[t]hat plaintiff take nothing from defendant Lantz by this action; and that said defendant go hence without day; * * * that this action proceed against the other defendants * * *." Plaintiff appeals from this judgment. Defendant Lantz moves to dismiss the appeal on the ground that the judgment from which the appeal is taken is not a final judgment in this action.
The motion is granted and the appeal is dismissed. The case is controlled by the principle applied in Martin v. City of Ashland, 233 Or 512, 378 P2d 711 (1963). In that case it was held that a judgment which affects some of the parties only is not a final judgment and is not appealable. In the instant case the judgment sustaining the demurrer did not dispose of the case as to the other defendants. Therefore, it is interlocutory in nature.
The time for filing an appeal will not begin to run until after the case has proceeded to judgment for or against the remaining defendants. Watkins v. Mason, 11 Or 72, 4 P 524 (1883).
Appeal dismissed. | 7bb197247233d1cc2243a6ac4b40cbda5c66c165cd4ec66fd4734dca3c22ccc7 | 1963-05-15T00:00:00Z |
b1bc41c2-e1a9-42bf-9e8d-5df09dbb31a7 | Eisele v. Knight, Northern Ins. Co. | 234 Or. 468, 382 P.2d 416 | null | oregon | Oregon Supreme Court | Reversed June 12, 1963.
William C. Grant, Portland, argued the cause for *469 appellant. With him on the briefs were Hershiser, McMenamin, Blyth & Jones, Portland.
Richard F. Porter, Portland, argued the cause for respondent. With him on the brief was Ben T. Gray, Portland.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
REVERSED.
DENECKE, J.
The plaintiff garnished Northern Insurance Company, alleging that Northern owed a debt to the defendant which arose because the garnishee had liability insurance covering the defendant. The plaintiff had previously secured a judgment for damages for personal injuries against the defendant. The trial court, sitting without a jury, held there was coverage.
Defendant Richard Knight was the son of Mrs. Von C. Jensen and a stepson of Mr. Von C. Jensen. He became 16 in September, 1958. He was living with the Jensens at that time. At that time and for several prior years the Jensens had a liability policy with Northern, insuring the Jensens and the members of their household while driving the Jensen's three cars, or other cars. In 1956 Mr. Jensen learned that his stepson was driving cars belonging to other persons. He inquired of his agent, Mr. Slade, and was told that the stepson was covered while driving such cars.
In June, 1959, Northern issued a new liability policy to the Jensens. It did not cover Knight while driving cars not owned by the Jensens. The testimony of Mr. Jensen and Mr. Slade concerning the circumstances surrounding the issuance of this policy is not in accord. Mr. Jensen testified that he assumed the new policy covered his stepson while he was driving *470 any car. He stated that Mr. Slade never told him to the contrary. Mr. Slade testified that he told Mr. Jensen that his stepson was not covered by the new policy and that this change was made at Mr. Jensen's request.
According to Mr. Slade, when the policy was up for renewal in 1959, Northern inquired whether Richard Knight had a driver's license. Upon inquiry it was found that he did. Mr. Slade explained to Mr. Jensen that his rate would be more than doubled to cover his stepson. Mr. Slade testified that Mr. Jensen told him that his stepson would be away at school and he did not wish him covered. Therefore, the policy here involved was issued.
Mr. Jenson testified that he "imagined" that he discussed the new policy issued in 1959 with Mr. Slade, but he did not remember what he said, if the policy was discussed. Mr. Jensen was positive, however, that Mr. Slade did not tell him that his stepson was not covered under the new policy. Mr. Jensen "assumed that Richard was covered."
1. The allegations in a garnishment proceedings are in the nature of plaintiff's complaint. Oregon Creditors, Inc. v. Oliver, 125 Or 307, 313, 267 P 52. The plaintiff stated in his allegations that Northern Insurance Company had a policy outstanding on the date of the accident "covering Von C. Jensen and Mary W. Jensen and such other persons that they should permit and allow to drive their said car * * * [and] Richard Preston Knight was operating an automobile covered by said policy." The form of the policy issued was made part of the pleadings and its contents were never disputed. Plaintiff did not question that according to the terms of the policy Knight was covered only when driving a car owned by the Jensens. This was *471 the only theory advanced in the pleadings, i.e., Knight was covered by the terms of the policy issued as he was driving a Jensen-owned car.
However, the undisputed fact is that Knight was not driving a Jensen-owned car at the time of the accident. He was driving a car owned by the Crawfords. The record is unequivocal that plaintiff knew this fact at the time the garnishment allegations were filed. However, for some unknown reason, the allegations base the right to garnishment upon the theory that Knight was driving a Jensen-owned vehicle and thus was covered under the terms of the policy as issued. No attempt was ever made to amend the pleadings.
The trial court entered a finding of fact that Knight was driving an automobile owned by the Jensens. As stated, this is simply not the fact and the plaintiff never contended so except in his allegations. The trial court further found as follows:
And made a conclusion of law as follows:
*472 The memorandum of the trial court, which was incorporated in the findings, stated, in part:
The court went on:
2. These findings of fact and conclusions of law intimate that the trial court decided the proceedings upon a theory of reformation, or, possibly, estoppel. Neither is pleaded specifically nor are facts pleaded from which reformation or estoppel could be inferred. There is doubt whether either could be pleaded as the basis for establishment of the debt in a garnishment proceedings. A garnishment proceedings is in effect an action at law. Overturff v. Carroll, 109 Or 326, 219 P 1081. In any event plaintiff did not plead either.
3. Inasmuch as the only basis for recovery pleaded was that Knight was driving a Jensen-owned car and thus covered under the written contract of insurance and that fact and conclusion was not supported by any evidence, the judgment must be reversed with directions to enter judgment for the garnishee. Cole v. Fogel, 210 Or 257, 264, 310 P2d 315. | 92a16488cf48f2cd76bc7a994066b39396f92eba4b417ebabde99aed97f96c29 | 1963-06-12T00:00:00Z |
fb84b5d3-5f65-41cb-afd0-a5074ddfe98a | Cline v. Larson | 234 Or. 384, 383 P.2d 75 | null | oregon | Oregon Supreme Court | Reargued April 5, 1963.
Reversed June 12, 1963.
*386 Stewart M. Whipple, Portland, argued the cause for appellant. On the brief were Seitz, Easley & Whipple, Portland.
David H. Breuer, Portland, argued the cause for respondents. With him on the brief were W.C. Beers and Walter W. Yeager, Portland.
No appearance on behalf of Intervenor-Respondent.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
REVERSED.
ROSSMAN, J.
This is an appeal by Edna D. Larson, individually and as executrix of the estate of Rilla T. Stack, a deceased widow, from a decree of the circuit court which ruled that a document in the form of a will which Mrs. Stack executed August 3, 1955, was "a nullity and of no force or effect whatsoever." The will named Miss Larson residuary legatee and nominated her as executrix. The execution of the document was succeeded on July 22, 1957, June 12, 1958, August 8, 1958, December 5, 1958, and November 3, 1959, by the execution of five instruments in the form of codicils. Miss Larson, the appellant, is the proponent of probate of the will and the five codicils. The contestants, Thomas W. Cline, Sr., and Margaret Smith, are two cousins of the deceased. They are now the respondents. The challenged decree declared the codicils as well as the will nullities and vacated the order which had appointed Miss Larson executrix. The intervenor-contestant, Elizabeth A. Allen, who is also a *387 cousin of the deceased, is not a participant in this appeal.
The bases of the challenged decree are the facts that (1) Miss Larson was the secretary of Edward R. Robnett, the attorney whom Mrs. Stack employed to prepare the will, (2) Miss Larson was a friend of Mrs. Stack, (3) Miss Larson typed the will and was consulted by Mrs. Stack concerning its residuary clause, and (4) Miss Larson is the residuary legatee of the will.
Mrs. Stack died November 10, 1960, at the age of 88 years. The petition to revoke makes no claim that Mrs. Stack lacked testamentary capacity when she executed the will and the codicils; however, in detailing the facts, we will frequently mention her mental condition. The petition states its charge as follows:
By reverting to the dates that we have mentioned, it will be noticed that Mrs. Stack's death occurred five years and three months after she had executed the purported will and one year after she had signed the last of the five codicils. The inventory and appraisal *388 of the estate showed a value of $64,635.59. From the time that the deceased had reached her 16th birthday she had been a school teacher. She retired from that vocation before she reached her 50th birthday. She was thrifty and managed her estate capably. She spent but little upon herself. She had no children. When she executed the document that purports to be her will she lived alone in a home which she owned. She had many friends and in the last two years of her life lived for several months in the home of one of them.
One Ralph W. Robnett, an attorney now deceased, was the father of Edward R. Robnett whom we have mentioned. Mrs. Stack went to Ralph W. Robnett for whatever legal services she needed, and the record indicates that while the son (Edward) was still in high school his father and mother made him acquainted with Mrs. Stack. When Edward R. Robnett was admitted to the bar in 1944 he became associated with his father in the practice. In 1950 the father died, and thereupon the son succeeded to his office. From that time Mrs. Stack went to him for the legal services she needed. She did not manifest toward him the deference that some clients display toward their attorneys. She had known his father as "Mr. Robnett" and upon becoming acquainted with the son as a high school boy called him "Ed." She continued to do so when he was admitted to the bar. She frequently directed him to bring a paper to her or, in terms suitable for giving orders to a servant, acquainted him with her wants.
Miss Larson, the proponent, had become the secretary of Ralph W. Robnett in 1927 and upon the latter's death in 1950 entered Edward's employ. Some years after she began her employment for the father she became acquainted with Mrs. Stack and, as time *389 went on, the acquaintanceship developed into a friendship. The two women never saw each other in any place other than Mr. Robnett's office except in the last months of Mrs. Stack's life when Miss Larson visited her in a rest home where illness confined her. The two never visited one another in their homes nor did they attend together social, church or other functions. They, however, spoke to one another on the telephone frequently, and the record contains an occasional friendly letter that Mrs. Stack wrote to Miss Larson. Each was a member of the WCTU and each was a church member. Their religious denominations were not the same. Something served as a bond and united into friendship these two people. Possibly, as the accumulating years settled upon Mrs. Stack and segregated her more and more from the ordinary channels of social activity, she viewed with increased endearment individuals such as Miss Larson who continued to display an interest in her. Society has a caste system which groups people into social units according to age. Not only did old age segregate Mrs. Stack from the younger groups, but in addition her hearing and eyesight were beginning to fail. Increasing disabilities can subject their victim to the curse of austerity unless he can develop a compensating activity.
In her later years Mrs. Stack gave sums such as $500 and $1,000 to friends whom she especially liked. She also made loans upon favorable terms to persons whom she wished to help. Anticipation of a glow of appreciation by the recipients of her generous gifts and their continued interest in her may have prompted to some extent her bountiful acts. She may have distributed a part of her estate in her lifetime rather than in her will, not alone on account of the virtue that *390 inheres in good deeds but also because it brought the recipients closer to her as friends. She liked people and had an engaging personality. Her gifts were not to those who had an ample purse but to people who could use an extra dollar and in whom she found qualities that she liked.
Mrs. Stack entered the office of Mr. Robnett July 1, 1954, and handed him $1,000 in cash as a gift, and a like sum to Miss Larson. No one intimates that either recipient had sought the gift. At various times Mrs. Stack made similar gifts to others.
We have mentioned the fact that some years prior to her death Mrs. Stack's hearing began to fail and her eyesight began to dim. A year or more before her death some who wished to speak to her resorted to shouting. A deaf person dislikes the shouted voice and all other efforts that call attention to his impaired hearing. Miss Larson could make Mrs. Stack hear her without shouting. Naturally, a person of that kind is acceptable company for the person whose social intercourse is restricted by deafness.
Until the last two or three years of her life Mrs. Stack came to the Robnett office as frequently as once in a week or two. Sometimes her visits were purely social. At those times she would visit for a few minutes with Mr. Robnett or Miss Larson. She might then leave with Miss Larson a parcel or two while she went to stores and performed shopping. Sometimes she borrowed from Miss Larson her streetcar pass so that she could visit a friend who was confined in a hospital.
Witnesses, even those called by the contestants, described Mrs. Stack as a determined woman who was strong willed and difficult to persuade. She was of a domineering type and knew what she wanted. Thomas *391 Cline, a contestant, testified that Mrs. Stack "wanted her own way." His son, a clergyman, who was a principal witness for the contestants, referring to Mrs. Stack, testified:
Mrs. Ruth Campbell, who was reared by Mrs. Stack's mother as a foster daughter and who, therefore, had known Mrs. Stack over an extended period of time, testified:
Antoinette Wagner, an employee of a real estate office with which Mrs. Stack had had many business relationships, when asked whether Mrs. Stack had "a mind of her own," replied:
Mrs. Stack had a dislike for advice which she had not sought. One of the witnesses whose testimony was similar to that of others spoke as follows:
We shall mention upon the subject of the deceased's tenacity of purpose the testimony of one more witness, Bessie E. Gardner, a neighbor of Mrs. Stack. She was called to the witness stand by the contestants. In taking note of her testimony that Mrs. Stack was a very determined individual, we shall mention testimony given by Mrs. Gardner that describes other characteristics of the deceased. In September of 1959, which was about four years after the will had been executed and about thirteen months prior to Mrs. Stack's death, Mrs. Stack's hearing and eyesight were poor, according to Mrs. Gardner. Nevertheless, Mrs. Stack still wrote letters and, according to Mrs. Gardner, a friend could make her hear "if you talked to her." In that period Mrs. Gardner helped Mrs. Stack *393 occasionally with correspondence and at other times drove her to places she wished to visit. According to Mrs. Gardner, Mrs. Stack's "health, considering her age, was very good until she had the bad fall." The latter occurred in March of 1958 when Mrs. Stack fell down a flight of basement stairs that a witness for the contestants described as "very treacherous." In September of 1959 Mrs. Gardner drove Mrs. Stack to Mr. Robnett's office and there Mrs. Stack obtained from Miss Larson her will and the existing four codicils. Mrs. Gardner testified that at that time, "I think she was completely of sound mind. She was like any other older person." Mrs. Stack handed the will and codicils to Mrs. Gardner and requested her to take them home, read them and study them. She explained that she might like to consult Mrs. Gardner about the will. November 3, 1959, Mrs. Gardner, at the deceased's request, again drove her to Mr. Robnett's office. She then returned the will and four codicils; at the same time she gave directions for the preparation of the fifth codicil and the latter was executed that same day. This was the last of the five codicils. Its execution occurred one year before Mrs. Stack's death.
1. The respondents (contestants) argue:
The legal principles governing contentions of that kind were stated with clarity by Mr. Justice O'CONNELL in In re Reddaway's Estate, 214 Or 410, 329 P2d 886:
2. In short, the law of wills, unlike the law of torts, does not create for testators a standard such as a reasonably prudent person, and demand that all testators and their wills conform to it. Each is left free to do with his property as he wishes provided his disposition of it does not run afoul of other legal principles. However, an unnatural will, as Justice O'CONNELL's words indicate, "is a circumstance to be weighed in determining whether improper influence had been used."
We take the following from In re Easton's Estate, 140 Cal App 367, 35 P2d 614:
The deceased had no relatives that were closer to her in kinship than cousins, but of the latter she had ten or twelve. The relationship between Mrs. Stack and her cousins was not manifested by warmth, visits back and forth, or exchange of letters. Two of the cousins, as we have mentioned, are the contestants. Another who became an intervenor did not participate in the trial and is taking no part in this appeal. Only one of the ten or twelve cousins testified. One of Mrs. Stack's cousins whose name is Ray Cline is severely handicapped by a cripping illness and his wife moves about in an invalid chair. Mrs. Stack manifested a deep sympathy for the two and gave them substantial gifts of money.
In 1957 Mrs. Stack wrote to her cousin, Thomas W. Cline, Sr., who is one of the contestants, stating that she did not believe that she ought to continue to live by herself. The letter suggested a joint occupancy of a home. Mrs. Stack owned the home in which she lived and seemingly the Clines lived in a trailer. Nothing developed from this letter until shortly after Mrs. Stack sustained her fall in March of 1958 and suffered some disability. Upon that juncture Mr. and Mrs. Thomas Cline moved into Mrs. Stack's home and cared for her. They remained for about two months. Shortly after they came Mrs. Stack gave them $1,000. She took care of all household expenses.
Friction rather than cordial feelings resulted from the presence of Mr. and Mrs. Thomas Cline in Mrs. Stack's home. Mrs. Stack thought that her cousin or the latter's wife took some of her household items. She expressed herself to more than one individual *396 and in so doing spoke critically of the Clines. She even used the words "theft" and "steal." Thomas Cline has a son, Donald, who is a clergyman. After his mother and father had received the gift of $1,000, he obtained from Mrs. Stack a loan of $5,000 at 4 per cent interest with nothing payable upon the loan principal or interest for ten years. The note was unsecured and was written by the son who was past 30 years of age. Under its terms Mrs. Stack would have had to reach her 96th birthday before she would receive anything whatever upon the loan. Mrs. Stack called the note to the attention of Mr. Robnett and thereafter a new note was prepared. This situation strained still further the relationship between Mr. and Mrs. Cline and Donald upon the one hand and Mrs. Stack upon the other.
A witness who was wholly disinterested testified that Mrs. Stack "was very upset" with Donald. Mrs. Thomas Cline testified that some time after she and her husband had moved out of Mrs. Stack's home and were making a call upon her, the latter "told us she didn't want to ever see us again and that we had stole from her." Mrs. Rose Nuszbaum, a neighbor of Mrs. Stack, stated that the latter complained about the Clines and said "she don't like them at all." Still another neighbor testified that after the Clines had moved in with Mrs. Stack the latter declared, "she could not stand them any more." One witness gave testimony favorable to Donald, but that witness had not been an intimate friend of Mrs. Stack.
The second codicil of the will which was executed by Mrs. Stack June 12, 1958, canceled a bequest of $500 for Thomas Cline and a similar amount for his wife with the explanation "that I have already given them the sum of $1,000." Those legacies had been provided *397 by the will of August 3, 1955, which is under attack. After the Clines had left the home of Mrs. Stack, the latter lived for a short time with a friend by the name of Mrs. Smith and then resumed living in her own home by herself until January of 1959. In this period she went upon occasions to Mr. Robnett's office. On one of the visits she gave instructions for the preparation of the third codicil. Later, by telephone, she directed the preparation of the fourth codicil and a day or two later executed it in her home. In January of 1959 she moved into the home of a friend and remained there until June. August 26, 1959, she entered a rest home conducted by a Mrs. Ruth Martin who was a member of the religious denomination to which Mrs. Stack subscribed. She remained there until April 26, 1960, when she entered Portland Sanitarium for a short period due to a threat of pneumonia. May 18, 1960, she entered a convalescent home known as Porthaven Convalescent Home and remained there until her death November 10, 1960. Mrs. Martin, in whose rest home Mrs. Stack lived from August 26, 1959, to April 26, 1960, testified concerning Mrs. Stack, "Well, I always thought she was quite spry for an old woman, and very careful of her business. I mean she was always anxious about her business affairs."
The fifth codicil was executed November 3, 1959, which was in the period while Mrs. Stack lived in the Martin Rest Home (August 26, 1959, to April 26, 1960). Mrs. Gardner testified that November 3, 1959, she took Mrs. Stack to Mr. Robnett's office. She had taken Mrs. Stack there and to other places on many occasions. While Mrs. Stack was in Mr. Robnett's office on November 3, 1959, she gave directions for the preparation of the fifth codicil. Upon that occasion she also returned the will and four codicils which *398 she had obtained in the preceding September. In reply to a question of the trial judge, Mrs. Gardner testified that on November 3, 1959, Mrs. Stack's mind was sound. Her words were:
The first four codicils were executed by Mrs. Stack in her home and the fifth, as we have mentioned, was executed by her in Mr. Robnett's office. Mr. Robnett was absent at that time. An attorney by the name of Chris R. Marthaller who rented space from Mr. Robnett after he had moved to his present location and who had occasionally handled some of his business supervised the execution of the fifth codicil. He swore that before he permitted Mrs. Stack to sign the codicil he took her into his office and not only satisfied himself as to her competency, but also as to her familiarity with the document. According to him, her mind was clear and she understood the significance of the document and the nature of the act which she was about to perform. When she undertook to sign the codicil, "she was able to find the line herself," so Mr. Marthaller swore. Miss Larson was not present during the execution.
The will that Mrs. Stack executed August 3, 1955, and which is under attack in this proceeding contained the provisions, apart from formal matters, that we will now mention. Its second paragraph bequeathed $500 each to Thomas Cline and his wife. We have mentioned that the second codicil eliminated both of those bequests; it stated, "I have already given them the sum of $1,000." The third paragraph bequeathed "unto my cousin Jesse Cline" $500. The second codicil eliminated that bequest. It mentioned no reason. The *400 fourth paragraph bequeathed "unto my cousin Ray Cline" a legacy of $500 and a similar one to his wife. Ray Cline and his wife are the crippled persons that we have mentioned. Those bequests were not canceled.
The fifth paragraph of the will bequeathed "unto my friend, Josephine Erickson" $500. The third codicil canceled that bequest "for the reason that I have already given her said sum." The sixth paragraph bequeathed "unto my friend Madaline Foster" $500. That bequest was not altered. The seventh paragraph bequeathed "unto my friend Dora Blocksom" $500. The second codicil eliminated that bequest "for the reason that she has predeceased me." The eighth paragraph bequeathed "unto my friend, Minnie McClure" $500. That bequest remained unaltered. The ninth paragraph bequeathed "unto my friend, Rose Nuszbaum" $500. The fifth codicil eliminated the bequest with the explanation, "I have heretofore given her said sum." The tenth paragraph of the will bequeathed to "my friend, Ruth Campbell, the sum of $1,000" payable at the rate of $30 per month with the provision that in the event that Ruth Campbell died before the entire sum was paid, the remainder should be paid to the aforementioned Josephine Erickson. Ruth Campbell was reared by Mrs. Stack's mother. She described Mrs. Stack as "a rather domineering person" who did a lot of wonderful things for many people and who was "very keen" in handling her business. According to her, Mrs. Stack stated that Mr. Robnett had been "very good to her."
The eleventh paragraph named the proponent, Edna D. Larson, residuary legatee and nominated her as executrix. The will revoked all other wills. The one that had preceded it likewise had named Miss Larson executrix but contained no bequest for her. It, *401 however, had a bequest of $1,000 for Mr. Robnett. That bequest was canceled by the will of August 3, 1955.
The codicils contained some provisions in addition to those that we have named. We deem it unnecessary to take note of them, with the exception that the fifth codicil bequeathed to Mrs. Gardner, the individual who frequently drove Mrs. Stack to places to which she wished to go, the sum of $1,000. The same codicil bequeathed to Dr. D.W. Huntington, a retired dentist, the sum of $500 and to his wife a like sum. The Huntingtons frequently drove Mrs. Stack to places that she wished to reach. The same codicil bequeathed to the Oregon Baptist Convention which maintained a cemetery the sum of $1,000 "for perpetual care." The cemetery was the burial ground of some of Mrs. Stack's family and upon her death her remains were interred there.
August 3, 1955, Mrs. Stack who was then 83 years of age entered Mr. Robnett's office and requested the preparation of a new will, that is, the will we just reviewed. On that day Mr. Robnett drew from his files a copy of the will she had executed in April of 1954. The residuary clause of that will bequeathed the residue as follows:
The copy which Mr. Robnett used in the drafting of the new will contains many provisions that are stricken or opposite to which there is written by pencil the word "out." According to Mr. Robnett, the writing *402 and striking were done by him and Mrs. Stack August 3, 1955. The two finally came to the fifteenth paragraph of the 1954 will which was the residuary clause. At that point Mrs. Stack stated that she was uncertain as to whom she wished to make residuary legatee. She explained that she had already given the churches the full sums that she intended they should have. She mentioned her interest in children, children's homes and hospitals. Mr. Robnett suggested that she should go home, think the matter through, and return when she had decided upon the residuary beneficiary. She replied that she wished to execute the new will on that day. At that juncture Mr. Robnett was compelled to leave upon an engagement which was overdue, and placed Mrs. Stack in charge of Miss Larson. The latter and Mrs. Stack spent about an hour in discussing possible residuary beneficiaries and in so doing reviewed several welfare agencies, principally children's homes and hospitals.
Finally, Miss Larson recommended that Mrs. Stack return to her home and reach a conclusion as to whom she wished to be the residuary beneficiary. Mrs. Stack replied:
After more discussion Mrs. Stack declared: "Well, put your name in there then." Miss Larson exclaimed, "Me? You know you don't want to leave your money to me." Mrs. Stack stated, "And why not? You can do good with it just as well as I can." Shortly Mrs. Stack stated, "You go ahead and write the will the way I said, and I'll sit right here until you do." Miss *403 Larson then said that she would obey Mrs. Stack's order, but that she would deem herself residuary legatee only until Mrs. Stack had decided upon a permanent one. Shortly, Mr. Robnett returned to his office and was then given the will that Miss Larson had typed. He took Mrs. Stack into his office, closed his door, and inquired of her why she wanted Miss Larson as residuary beneficiary. He swore that Mrs. Stack replied that Miss Larson could do good with the money just like she had done herself. By that time Miss Larson had left the office. Mr. Robnett summoned from another office in the building a friend and thereupon the latter and Mr. Robnett became the attesting witnesses to the will.
The friend, John D. Boone, testified:
Mr. Robnett was the other attesting witness.
The first codicil stated, "Other than the foregoing, my will shall remain as heretofore declared." The other four, in addition to the language just quoted, mentioned the existing codicils.
We have mentioned Miss Larson's testimony in which she stated that when she entered her name in the will as residuary legatee she told Mrs. Stack that she would deem herself temporary residuary legatee, and that when Mrs. Stack had decided upon a permanent *404 choice a new will could be drafted. She further testified:
Mrs. Stack then changed the subject. On two later occasions Miss Larson inquired of Mrs. Stack, so Miss Larson swore, whether she was ready to write a new will with a permanent residuary legatee. Miss Larson stated that Mrs. Stack seemed annoyed with the repeated inquiries and answered, "When I am, I'll tell you."
If Mrs. Stack was the victim of undue influence, coercion, dominance, or other wrongful means that were exercised upon her when she directed Miss Larson to insert her name in the will, it is evident that she had many opportunities to speak about it and to relieve herself from its effect. More than five years and three months passed from the day when she signed the will until her death. She did not lead a hermit-like *405 life, but had many friends; and if she had been made the victim of a wrong, she could have summoned their help. Her will and her estate commanded much of her attention in the later years of her life, as is evident from the fact that she wrote five codicils, made several sizeable gifts and after so doing made appropriate changes in her will.
In the period of more than five years that passed after she had executed the will and before death claimed her, Mrs. Stack obtained her will and placed it in the custody of a close friend for a period of about six weeks with the statement that she would consult the friend about the will. That very fact afforded still another good opportunity for Mrs. Stack to voice complaints about undue influence if any had been perpetrated at her expense. In that period of a month and a half the will claimed her attention, for when she returned it to Mr. Robnett's safe she directed the preparation of one of the codicils.
Showing still further that Mrs. Stack had good opportunity to relieve herself of the results of wrongful influence if any had been exercised, is the fact that in March 1958, two and one-half years after she signed the will, the contestant, Thomas Cline, and his wife moved into her home and lived with her for two months. Thomas Cline is the only one of the cousins that testified. Neither he nor his wife testified that Mrs. Stack told them that she had been the victim of fraud, pressure, undue influence or any other wrong. Mr. Thomas Cline was the father of Donald whom we have mentioned. Donald called upon Mrs. Stack many times in the period beginning with March of 1958 and extending to the period of her death. He called upon Mrs. Stack not only in her home but also in the rest homes. According to him, he discussed *406 with her her business, health, attorney, and the latter's charges. He made suggestions to her about her will, its provisions, and those who should be beneficiaries. In the meantime he consulted with an attorney who was a friend of his. He even questioned Mrs. Stack whether she was satisfied with her attorney or was contemplating a change. He asked Mr. Robnett for permission to read Mrs. Stack's will and inquired whether a guardianship should be sought for her. Here, then, were excellent opportunities for Mrs. Stack to complain about undue influence if she had been the victim of any. Donald did not claim that Mrs. Stack made any complaint of that kind.
Affording Mrs. Stack still further opportunities to make complaints was the fact that after executing the will she lived upon two occasions with friends; at least one of them was very competent. It is not claimed that in those periods she said anything about undue influence or efforts to influence the disposition of her estate. Toward the close of her life she lived for several months in a rest home conducted by a woman (Mrs. Martin) who subscribed to the same religious faith as Mrs. Stack. That individual displayed a friendly interest in Mrs. Stack and since in that period Mrs. Stack went upon at least one occasion to Mr. Robnett's office (when the fifth codicil was prepared), it seems reasonable to infer that Mrs. Stack must have been thinking about her will in that period. It likewise seems reasonable to infer that she would have told her friend who operated the rest home about dominance, undue influence, or other wrongs if, in fact, she had been the victim of anything of that nature.
Nothing specific has been called to our attention which indicates that the challenged will was the product *407 of undue influence, dominance, or other oppressive action. No witness identified even vaguely anything wrong which had been perpetrated at the expense of Mrs. Stack and that caused her to insert in the will the name of Miss Larson.
Nor does any evidence indicate that the will was an unnatural one for Mrs. Stack to write, or that it was foreign to the manner in which her daily life foreshadowed that she would eventually dispose of her bounty. The will and its codicils contained legacies for individuals whom Mrs. Stack had for many years deemed friends and whose attachment to her was time tested. She had come to see that she could rely upon them for kind-hearted interest. For example, Mrs. Gardner and Dr. Huntington had driven her in their automobiles upon many occasions to places where she wished to go. In addition, Mrs. Gardner, as a result of Mrs. Stack's action, had had possession of her will and codicils for about six weeks and then, upon the request of Mrs. Stack, had returned them. Dr. Huntington for a longer period possessed $10,000 of Mrs. Stack's money. His entrustment with it was not evidenced by even a receipt; yet he returned it honorably upon request. The circumstances indicate that Mrs. Stack gave her money not merely to friends for friendship's sake but to those who reflected qualities that she esteemed and who needed some help. The contestants appear to believe that mere kinship should suffice to bring the estate to them. But it is evident that kinship was not a strong factor in Mrs. Stack's contemplation.
Miss Larson possibly does not need financial help, but the record indicates that Mrs. Stack had observed that she used her money for worthwhile projects and *408 had likewise observed in her attributes of character that she prized.
We have seen from the evidence that Mrs. Stack had eliminated from her will all bequests to her cousins except the one for Ray Cline and his wife. That bequest was due to Ray's needs. We have also seen that Mrs. Stack, for reasons that were based upon substantial grounds, had become displeased with those of the Clines who came to her attention in the period material to our inquiries. To have given them the estate under those unfortunate circumstances would have been unnatural for her. A natural will "may raise an inference favorable to the validity of the will." In re Southman's Estate, 178 Or 462, 481, 168 P2d 572.
We believe that the contestants did not present any direct evidence showing that the will was written or signed by the testatrix as a result of undue influence or some other wrong exerted by the proponent at the expense of the testatrix. However, the contestants claim that the manner in which the will was drafted condemns it. They point to the fact that Miss Larson typed the will, that she was Mr. Robnett's secretary, that Mrs. Stack consulted her about the residuary clause and that a confidential relationship existed between her and Mrs. Stack. Miss Larson, the proponent, concedes that she was consulted about the residuary clause and that she had many times performed for the testatrix the little services of which an office secretary in a law office is capable. It will be recalled that when Mrs. Stack entered the office she was undecided upon the residuary legatee and that she consulted both Mr. Robnett and Miss Larson upon that subject. Giving advice upon that subject did not require of Miss Larson any knowledge of law. Any person who was well informed could have made *409 helpful suggestions. Further, Miss Larson possessed none of Mrs. Stack's wealth and was not indebted to her.
3. Obviously, Miss Larson had influence with Mrs. Stack, if we restrict the meaning of the word "influence" to the effect which amiable qualities exert upon the person who is the object of their attention. No one is likely to bequeath to another a sum of money unless the legatee has won the good will of the would-be testator. Accordingly, it is likely that many bequests are the result of influence. The only influence which the law of wills bans is that which seeks to ensnare a bequest by wrongful means.
4-6. The burden of showing the exercise of undue influence at the time of the execution of a will is upon the contestant. In re Roblin's Estate, 210 Or 371, 311 P2d 459; In re Reddaway's Estate, 214 Or 410, 329 P2d 886. However, where a beneficiary of the will who sustained to the testatrix a confidential relationship participated in the drafting of the will, as in this case, a presumption of improper influence comes to the aid of the contestant. The presumption arises from the confidential relationship and the participation in the drafting. It requires the beneficiary to come forward with a satisfactory explanation for his actions. He must show that he did not abuse the confidential relationship and did not employ improper influence. The contestant need not offer at the outset any evidence that undue influence was exerted. The presumption suffices to call upon the proponent for an explanation. If a persuasive reasonable explanation is laid before the court, the contestant must meet it if he expects to prevail. McCaslin v. Mummery, 222 Or 599, 352 P2d 1111; Toomey v. Moore, 213 Or 422, 325 P2d 805; In re Estate of Meier, 190 Or 140, *410 224 P2d 572; In re Southman's Estate, 178 Or 462, 168 P2d 572; In re Lobb's Will, 177 Or 162, 160 P2d 295; In re Lobb's Will, 173 Or 414, 145 P2d 808; In re Rupert's Estate, 152 Or 649, 54 P2d 274; In re Knutson's Will, 149 Or 467, 41 P2d 793. In short, if a will which results from a situation such as the one now before us is to be set aside, the record whether consisting of presumptions or evidence must show that undue influence was actually exercised, and a court cannot "accept in lieu of substantial evidence mere suspicion, inuendo, insinuation, and speculation." 1 Jaureguy & Love, Oregon Probate Law and Practice 319, citing Trombly v. McKenney, 191 Or 90, 228 P2d 417.
The rules just noted have been stated and employed by this court many times. They are not unique with this jurisdiction but reflect the law virtually everywhere. Obviously, no two cases are exactly alike; and when facts vary, the presumption which issues from them and which accuses the attorney of having exercised undue influence is dependent upon their persuasiveness. In re Brown's Estate, 165 Or 575, 108 P2d 775. In McCaslin v. Mummery, 222 Or 599, 352 P2d 1111, Mr. Justice WARNER, author of the opinion, took occasion to quote from In re Estate of Urich, 194 Or 429, 242 P2d 204, as follows:
The case at bar presents a situation which warrants prima facie a deduction of improper influence. The evidence shows that Miss Larson stood in a confidential relation to Mrs. Stack and that she participated in the preparation of the will.
*411 7. A bequest to an attorney who drafts a will, or to his secretary, is not void per se. The rule goes no further than to create a presumption of invalidity. The presumption is not conclusive; it is disputable. The presumption permits an explanation and if the explanation passes all tests as to reason and truthfulness, it will be accepted by the court. The explanation must, of course, show that the attorney exercised no undue influence and that the will is in truth the will of the deceased and not the product of the beneficiary's machinations.
8. We mentioned that each case must be decided upon its own peculiar facts and that the strength of the presumption which suggests undue influence is dependent upon the cogency of the evidence. That statement is well illustrated by a comparison of McCaslin v. Mummery, supra, and the two cases entitled In re Lobb's Will, supra.
9. In Lobb's Will, supra, the testatrix executed her will when she was of approximately the same age as that at which Mrs. Stack executed hers. The contestants in this case, by taking note of the ages of the two individuals, of the fact that Mrs. Lobb's attorney became the beneficiary of her will as Miss Larson became the beneficiary of Mrs. Stack's will, and of a few more corresponding facts, seek to show that the two cases dealt with virtually identical facts. However, Mrs. Lobb and Mrs. Stack were individuals, and individuals are not fungibles. The two were very different. Unless the witnesses in the Lobb case misstated the facts, Mrs. Lobb's attorney to whom she bequeathed her entire estate lavished attention upon her. She was peculiarily susceptible to attention of that kind and seemed to have a weakness for it when it came from men. Her attorney gave her flowers *412 and bottles of wine. He offered to her an expensive mink coat. He wrote letters to her and made frequent calls upon her. When she received word that he would shortly visit her she displayed the interest and excitement that would have become a high school girl. After the visit was over she told others about it. She even mentioned to friends that her attorney had sought and received the privilege of bestowing a kiss upon her. In fact, she told friends that if she were twenty years or so younger she would become the attorney's bride. She needed help in the handling of her estate, and received it from the attorney. He made no charge. She was on cordial terms with her relatives and received gifts of substantial value from them. But she was a changeable woman. The attorney's display of affection won the heart and purse of this elderly woman. Mrs. Stack was a very different type of person. We shall not recount the facts once more, but if one reverts to preceding paragraphs of this opinion, he will readily see the truth of the statement just made. Mrs. Stack handled her affairs in a highly capable manner and no longer deemed herself as a marriagable young woman. It is clear that Mrs. Stack did her own thinking and resented efforts to influence her. When Mrs. Stack's attorney called upon her it was at her request, and he did what she directed. She was in command.
We said that no two cases are alike. Yet, McCaslin v. Mummery, supra, has some fundamental facts that are similar to those now before us. In it McCaslin, an elderly bachelor, called upon Mr. Biggs, attorney for Willamette View Manor, a large retirement home, and asked him to prepare a will for him. McCaslin told Mr. Biggs that he wished to give his entire estate, approximately $90,000 in value, to the Manor. *413 The conference was held in the Manor itself. The attorney prepared the will and Mr. McCaslin signed it. The will not only named the Manor as beneficiary but also named its administrator as executor. The attorney and his secretary were the attesting witnesses. The deceased received no advice from any other attorney. The attorney who prepared the will was not only the attorney for the Manor but was also its secretary. In sustaining the will against contentions similar to those urged in the instant case, this court said:
This court found that the explanation of the preparation and execution of the will was reasonable and truthful.
We have seen that Miss Larson produced a coherent reasonable explanation of her role which is entirely consistent with other evidence tending to show that no improper influence was exercised by her or Mr. Robnett in the preparation and execution *414 of the will. We believe that Miss Larson's explanation reflects the truth. She met the demand that the presumption had placed upon her.
We believe that Mrs. Stack's will, executed by her August 3, 1955, did not run afoul of any rule of law so far considered.
10. There is still another reason which requires a conclusion that no wrongful means was employed in the drafting and execution of the challenged will. It centers in the five codicils. From the day that the first of them was executed until Mrs. Stack's death more than five years passed.
Miss Larson typed each of the five codicils, but she was not named as beneficiary in any of them. Some of the codicils canceled paragraphs of the will that made bequests, but in so doing, with a single exception, they explained that the gifts had already been made. Obviously, cancellations of that kind did not increase the residue that would be available for Miss Larson. The fifth codicil made additional bequests that totalled $3,000. When we take into consideration bequests canceled by other codicils, the latter reduced the residue to the extent of $1,000. Accordingly, the codicils which Miss Larson typed diminished the amount of the residue.
Miss Larson was not present at the execution of the first four codicils. They were executed in the home of Mrs. Stack. Those present were Mr. Robnett and a friend of his who acted as attesting witnesses. The fifth, as we have noted, was executed in Mr. Robnett's office, but neither Mr. Robnett nor Miss Larson were present. In two instances the codicils were typed after Mrs. Stack had telephoned to Mr. Robnett's office and stated what she wished done. In the other three instances Mrs. Stack called at Robnett's *415 office, but when he was not present told Miss Larson what she wanted prepared. After it was typed Robnett brought it to Mrs. Stack's home.
The first codicil concluded with these words: "Other than the foregoing, my will shall remain as heretofore declared." The second employed this passage: "Other than the foregoing, my said will, including the Codicil of July 22, 1957, shall remain as heretofore declared." The third, fourth and fifth codicils added to the language just quoted reference not only to the will but to all extant codicils.
We quote the following from 95 CJS, Wills, § 303, page 95:
The five codicils were executed in the manner required of wills. Each codicil was read to Mrs. Stack or she herself read it. In some instances, possibly in all, she not only read the instrument but also listened to a reading of it. It is clear that she was familiar with the meaning and future effect of each.
The section of the text from which we just quoted continues as follows:
We take the following from the annotation in 21 ALR2d 831:
The applicable rule is stated as follows in 57 Am Jur, Wills, § 626, page 428:
Oregon employs the rule which is expressed in the quoted language, as we see from a succinct summary of this court's holdings that is given in Jaureguy and Love's Oregon Probate Law and Practice, § 380.
The Oregon decisions cited by Jaureguy and Love fully support their statements.
We are satisfied that Mrs. Stack's execution of the codicils republished her will, if any republication of it was required to give it validity. None was needed; and accordingly, our treatment of the codicils is merely an additional reason.
We are satisfied that no undue influence or other wrong was exerted upon Mrs. Stack; that her will was a natural, reasonable one; that she fully understood all of its provisions; that its execution was her free and voluntary act; and that Miss Larson did not abuse the confidence that Mrs. Stack had in her.
We believe that Mrs. Stack's will that was executed by her August 3, 1955, and its five codicils are valid.
The challenged decree is reversed and set aside. The will of August 3, 1955, and its five codicils are entitled to probate.
SLOAN, J., specially concurring.
I concur in the last part of the opinion which holds that the execution of the codicils acted to republish the will.
*418 DENECKE, J., dissenting.
This is an extremely close case on the facts and, therefore, the kind of case in which a dissent could indicate merely an excess of argumentativeness. Nevertheless, I do dissent in the belief that the majority opinion tends to weaken two important principles. First, apparently, the finding of the trial judge that undue influence was exerted is given little weight. Second, the principle that bequests to the draftsman of the will are "reprehended by law" was in effect stated, but held to be of insignificant force. In re Lobb's Will, 177 Or 188, 160 P2d 295 (1945).
This is an equitable proceedings in which this court tries the facts de novo. However, this court has repeatedly said that in this type of proceedings, when the facts are in dispute and the inferences and innuendoes to be drawn from the testimony are several, great reliance is to be placed upon the findings of the trial judge. Clauder v. Morser, 204 Or 378, 391, 282 P2d 352 (1955). The trial court judge, Judge Dickson, as judge in the department of Probate in Multnomah County, tries more will contest cases than any other judge in Oregon. The court wrote a short letter opinion and made formal findings of facts. In both it found Miss Larson and Mr. Robnett had unduly influenced the testatrix. Some of the conclusions of the majority rest upon conflicting testimony, such as the conclusion as to Mrs. Stack's physical and mental condition and her susceptibility or lack of susceptibility to the influence of others. Other conclusions of the majority necessarily accept as completely accurate the testimony of Miss Larson and Mr. Robnett. By its findings the trial court must necessarily have rejected, as uncredible, all or part of their testimony.
"How can we say the judge is wrong? We never *419 saw the witnesses." Clauder v. Morser, supra, at 392, quoting from United States v. Oregon Med. Soc., 343 US 326, 339, 96 L ed 978, 72 S Ct 690, which in turn quoted from Boyd v. Boyd, 252 NY 422, 429, 169 NE 632, 634.
As for the second proposition, Miss Larson, using the language of the residuary clause of the old will, typed the residuary clause in the new will and inserted her name as residual beneficiary.[1] According to Miss Larson, this was done at Mrs. Stack's request. It is certain Miss Larson was not at this time acting as a typist, typing what her employer told her. Therefore, this case can be classified as one in which the beneficiary prepared the will naming her as beneficiary.
However, there was evidence that before the will was executed, Mr. Robnett discussed the typed will with Mrs. Stack, out of Miss Larson's presence, and approved Mrs. Stack's designation of Miss Larson as residual beneficiary.
These facts can be regarded as presenting a situation in which a fiduciary is made a beneficiary, but it is contended that the testatrix had advice independent of the fiduciary. This was the situation in In re Lobb's Will, 173 Or 414, 145 P2d 808 (1944), 177 Or 162, 160 P2d 295 (1945). In that case the testatrix was approximately Mrs. Stack's age. Mr. Wilson had been her attorney for some time. According to him, the testatrix told him she wanted to make a will and designate him as one of the beneficiaries. *420 Wilson told her she should not do that but should leave it to her relatives. She stated a logical reason why she did not want to do that. He told her he could not draw a will in which he was named a beneficiary. She asked if he could not get somebody else to draw the will and he suggested a lawyer whom he knew had done some legal work for her. The testatrix asked if the man with whom Wilson shared offices could not draw it. Mr. Edward J. Clark was this man. Wilson came back to his office and told this to Mr. Clark, as well as other terms the testatrix wanted in her will. Mr. Clark drafted a will accordingly. Mr. Clark, his wife, and the secretary that Wilson and Clark shared, took the will to Hillsboro, where the testatrix then resided. Mr. Clark went over the will paragraph by paragraph with the testatrix to make certain she was competent and that he had drafted the will correctly. During this conversation the testatrix related what a good friend Mr. Wilson was and that she felt no obligation to her relatives. Mr. Clark did not attempt to dissuade the testatrix from this expressed desire of hers to make Mr. Wilson her principal beneficiary and leave nothing to her nieces and nephews.
This court in the Lobb case stated:
In this case the undisputed fact is that Miss Larson had been secretary for the Robnett office since 1927 and for Mr. Edward Robnett since 1946. All the testimony was that she was one of those indispensable secretaries of long experience who can and do perform almost all the duties of a lawyer. With reference to Miss Larson, Mr. Robnett definitely was not "a disinterested * * * person who was disassociated from the interests of the proposed beneficiary."
In re Lobb's Will, supra, also involved a legal secretary. This secretary, Miss Bruns, had worked for Mr. Wilson for 20 years. Her relationship to the testatrix was similar to that of Miss Larson to Mrs. Stack, as testified to by Miss Larson. Miss Bruns drew a codicil and had the testatrix execute it. Either Mr. Wilson never saw the codicil or he inspected it only for form. The codicil revoked another bequest in the will and thereby made Mr. Wilson the sole beneficiary. The court commented on this as follows:
This court in the Lobb cases twice reversed the trial court's finding that the will had been executed without undue influence. There was in those cases testimony that Mr. Wilson had lavished undue attention upon the testatrix. This was denied. There was also testimony that the testatrix had friendly relations with her nephews and nieces. However, if the testimony of Mr. Wilson and his secretary was accepted as accurate, the will would have to be upheld. In Lobb the testimony adverse to the beneficiary does not appear to me to be any stronger evidence to support the presumption of undue influence than the uncontradicted evidence here that the testatrix desired that the bulk of her estate go to organizations whose purpose was to aid children, whereas, the will devised it, without any restrictions on its use, to Miss Larson.
In the present case the trial court's finding of undue influence is reversed by the majority. In the Lobb cases the trial court's finding of no undue influence was reversed twice by this court.
According to Miss Larson and Mr. Robnett's testimony, Mrs. Stack conferred with Mr. Robnett prior to executing the will. If this be the fact, perhaps the transaction should be viewed as one in which Mr. Robnett prepared the will and Miss Larson should be regarded as simply doing the mechanical work of typing the will. If Mr. Robnett himself had been made the principal beneficiary, the comment in 1 Jaureguy and Love, Oregon Probate Law and Practice, 312, § 317, is appropriate: "one cannot read the decisions of the Oregon court without obtaining a distinct, and rather strong, conviction that a lawyer who attempts *423 to defend a bequest from a client to himself in a will he has prepared faces a real task, an uphill fight."
Here, the lawyer was not bequeathed the residuary. The beneficiary named, however, was in a close, long-standing relationship with Mr. Robnett.
"If the will is drawn, or if its execution or preparation and execution are caused, by the husband, or the father, or the son, or the agent, of the beneficiary, the same principles apply as apply where the beneficiary himself acted." 3 Page, Wills (Bowe-Parker Rev), 623. In re Estate of Porter, 192 Or 483, 235 P2d 894 (1951), approved this principle; there an agent was found to have caused the preparation of the will.
In my opinion the rule should be the same whether the beneficiary be a relative of the lawyer drafting the will or his secretary with a long and close relationship. If a client desires to name the lawyer's secretary as a beneficiary, the lawyer should take the same action as if the client desires to name him as a beneficiary; have another attorney, disassociated with the lawyer and his secretary, draft the will and supervise its execution. Any other course rightly will cause suspicion.
The majority opinion believes the five codicils are strong evidence rebutting the presumption of undue influence. They are strong evidence that Mrs. Stack had testamentary capacity at the time of their execution. However, on the question of undue influence they have the same weakness that attended the preparation and execution of the original will. Only Miss Larson can testify what Mrs. Stack's purported directions were for the preparation of the codicils. The purported directions on all five codicils were given only to Miss Larson. All codicils were prepared by either Miss Larson or Mr. Robnett. Again, no independent *424 advice was suggested or given. The lawyer supervising the execution of the fifth codicil shared offices with Mr. Robnett. He testified he did not attempt to advise Mrs. Stack and did not discuss with her what was in the codicil or her original will. He asked her only if she knew that by executing the codicil she was changing her will. Only Miss Larson or Mr. Robnett know whether or not Mrs. Stack would have changed the residual beneficiary if she had had independent advice. The codicils were subject to the same presumption of undue influence as was the will.
Aside from the two propositions to which this opinion is primarily directed, I believe the majority is overly persuaded by the argument and seeming fact that Mrs. Stack, rightly or wrongly, did not want her heirs, except her cousin Ray Cline, to receive any of her estate. If this will is set aside these heirs will receive her estate. This same circumstance is true in many will contest cases. However, in all these cases the testator's intention as to what, if anything, his heirs should receive, is only relevant to the issue of whether the named beneficiaries were so named because of undue influence exerted on the testator. If it were exerted the will is set aside. In many instances the laws of descent result in the estate passing to persons different than those whom the testator would have devised it had not undue influence been exerted. The question of whether or not a will is valid is not determined by deciding whether the beneficiary designated by reason of undue influence is closer to the testator's intent than the beneficiaries who would inherit under the laws of descent.
In re Brown's Estate, 165 Or 575, 108 P2d 775, concerned a will in which the beneficiaries were the lawyer who drafted the will and another who occupied *425 a fiduciary relationship to the decedent. This court reversed the trial court and set aside such will. This action resulted in a final disposition contrary to what the court believed was the testator's true intention. The court stated:
I am fearful that the majority opinion has lowered the high standards which should be observed in judging the validity of a bequest to a lawyer or a member of his office, made in a will drafted by the lawyer or by a member of his office.
O'CONNELL, J., joins in this dissent.
[1] Miss Larson's participation was different than that of the typist-beneficiary in In re Estate of Meier, 190 Or 140, 224 P2d 572 (1950). In that case the beneficiary typed the will naming her as beneficiary, but she did so at the direction of the testator's lawyer. The testator's lawyer had no connection with the typist-beneficiary. These facts are not clearly stated in the opinion, but the transcript of testimony clearly proves these were the facts.
[2] The testator's true intent, as found by this court, was to have the lawyer hold the estate in trust until the testator returned to this earth to enjoy his estate. This was a religious belief of many old Indians. | 7b1e824136bdc4a541f4c4b8f58f7f14b2ba662eb7d7747ff0884ce1a9075dec | 1963-06-12T00:00:00Z |
1a4fd366-4be0-41ef-9ceb-5fdc545f6818 | State v. Blacker | 234 Or. 131, 380 P.2d 789 | null | oregon | Oregon Supreme Court | Modified April 10, 1963.
*132 Jerome Noble and Philip Hayter, Dallas, argued the cause and filed a brief for appellant.
Lou L. Williams, former Deputy District Attorney for Polk County, argued the cause for respondent. On the brief was Marvin J. Weiser, District Attorney for Polk County.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
MODIFIED.
PERRY, J.
The defendant entered a plea of guilty to the crime of assault with a dangerous weapon. Subsequent to the plea of guilty the state filed a pleading designated by the state as an information, which is as follows:
The court thereupon informed the defendant of the subsequent pleading and defendant, in effect, denied that at the time he committed the assault with the dangerous weapon he was armed with "any pistol, revolver, machine gun or other firearm capable of being concealed upon the person, without having a license or permit to carry such firearm, * * *." Thereupon the court made findings of fact that the defendant was carrying a concealed weapon, without a license, at the time he committed the assault, and thereupon sentenced the defendant to a term not to exceed 10 years in the state penitentiary for the crime of assault with a dangerous weapon, and further provided that he should be imprisoned an additional five years, pursuant to the provisions of ORS 166.230.
The defendant does not contend that his plea of guilty to the crime of assault with a dangerous weapon is in anywise invalid, but does contend that the court exceeded its jurisdiction when it imposed the additional sentence of five years. This because he was not *134 indicted by a grand jury or tried by a jury relative to the violation of the provisions of ORS 166.230.
Since a trial before the court was had as to the matters alleged in the subsequent information filed by the state, and the court found that the defendant at the time he committed the assault was armed with a pistol capable of being concealed upon the person, and that he had no license or permit to carry such a firearm, the question presented is whether or not the court erred in pronouncing the additional sentence, since there was no allegation in the original information that at the time he committed the crime he was armed with a concealable weapon and unauthorized by law to be so armed.
ORS 166.230, insofar as is material, reads as follows:
It is noted that ORS 166.230 does not provide that the carrying of a concealed firearm without a license or permit is in itself a crime. It provides only that the person who commits or attempts to commit any felony while so armed shall suffer a greater penalty than another who has committed a felony not so armed.
*135 The crime of possession of concealed weapons is described and made punishable under ORS 166.250. The legislature therefore clearly intended and provided that ORS 166.230 should be considered as aggravating the felony charged.
The defendant relies upon State v. Waterhouse, 209 Or 424, 307 P2d 327. In that case the defendant was charged with the crime of invasion of privacy, and there was set forth in the indictment the allegation that the defendant had been previously convicted of the crime of rape. The allegation of the crime of rape was included, since ORS 167.050 provided that any person who had previously been convicted of a sex crime might be sentenced for the crime of invasion of privacy to a life term in the penitentiary. The majority of the court then held that, since the statute did not itself provide the procedure whereby the fact as to the previous conviction for rape might be determined subsequent to the determination of the guilt of the defendant for the crime of invasion of privacy, the prior conviction was a necessary ingredient of the crime charged and must therefore be alleged and proven. This because, since the legislature, having failed to provide different procedure, the court was bound to follow the common law which required that every wrongful act which is to be taken into account in determining the punishment must be alleged in the indictment. Bishop's New Criminal Procedure, Vol. 1, Chapter VI, page 59.
1. Subsequent to the decision in State v. Waterhouse, supra, the legislature has provided in all cases where the sentence is enhanced by reason of a prior conviction (ORS 168.025) the facts of former conviction shall not be set forth in the indictment (ORS 132.540 (f)) and the fact of former convictions shall be determined *136 by the court. ORS 168.065. The change in the statute subsequent to State v. Waterhouse does not affect the question here presented, since the procedure therein set out applies only to those cases where the enhanced penalty is applicable by reason of prior convictions.
The crime charged against the defendant is but a single crime and no separate procedure for determining these facts in aggravation is set forth in the statute.
The courts of the state of New York permit the court to determine these facts subsequent to the trial. People v. Krennen, 264 NY 108, 190 NE 167; People v. Francesco Caruso, 249 NY 302, 164 NE 106; People ex rel. Small v. Shaw, 108 NYS2d 451. However, an examination of the opinions of that state discloses that without discussion of the problem a rule of procedure was established by judicial fiat.
These cases, while some authority for the state's position, are contrary to the established rule of law in this state. The basis of the rule in this state lies in the common law. At common law it was necessary to allege the particular facts in the indictment which created an aggravation of the crime charged. State of Oregon v. Black, 193 Or 295, 236 P2d 326.
2-4. The substantive law contained in the common law of England remains the law of this state until changed by legislative action. State of Oregon v. Black, supra. Therefore, in the absence of a statutory change, the facts constituting the aggravation of an alleged offense must be set forth in the indictment. Merrill v. Gladden, 216 Or 460, 337 P2d 774; Annotator's comments, 125 ALR 605. The trial court was in error in pronouncing the greater penalty.
*137 The charging part of the information to which the defendant entered his plea of guilty is as follows:
ORS 132.540(f) provides:
Comparing the charging part of the information with the requirements of ORS 132.540(f) supra, it is obvious that the information does not attempt to allege the defendant was carrying a weapon capable of concealment without having a license or permit to do so.
The judgment is remanded, with instructions to set aside the sentence as to the additional imprisonment for a period of five years. In all other respects, the judgment is affirmed. | f6a540dfced3853a1d0f5a97cc423547545dff621baf97ca66fcb4551bcbb8d5 | 1963-04-10T00:00:00Z |
57b0b6f2-8d54-4283-bd35-a8ed4843d18d | STATE HIGHWAY COMM. v. Lytle | 234 Or. 188, 380 P.2d 811 | null | oregon | Oregon Supreme Court | Reversed April 17, 1963.
E.R. Bashaw, Medford, argued the cause for appellants. On the briefs were Jones, Reeder & Bashaw, Medford.
J. Robert Patterson, Salem, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Attorney General, L.I. Lindas and Leslie B. Hampton, Assistant Attorneys General, Salem.
*189 Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
REVERSED.
SLOAN, J.
Defendants appeal from the refusal of the trial court to allow them their attorney's fee in this condemnation case. The circumstances which created the dispute are unusual to the extent that no similar case has come before this court. We will limit our consideration to the ultimate facts we rely on for decision.
By letter dated February 23, 1961, plaintiff gave formal notice to defendants of its intention to take from defendants certain property described in the letter. The letter contained an offer to pay defendants $20,150 for the property being taken. On March 3, 1961, plaintiff filed its complaint to condemn the property described in the above letter. The complaint alleged the value of the property to be $18,000. By two amendments to the complaint, made before the start of the trial, plaintiff reduced the amount of property it sought to take. The amended complaint materially reduced the alleged value of the property as described in the amended complaints. Plaintiff, however, did not revise its tender of $20,150 for the property. A day or so before the start of the trial, defendants submitted to plaintiff an acceptance of the tender of $20,150. Plaintiff refused to pay that amount and made an oral counter proposal to pay $18,000 for the property to be actually taken. Defendants declined to accept the latter amount. The jury awarded defendants $19,500.
Following the trial, the court held a supplemental hearing to determine, under the circumstances stated, the right of defendants to an attorney's fee. The trial *190 court strictly construed the statute and held that the tender of $20,150 made before the complaint was filed had conformed to the requirements of the statute and denied attorney's fee. ORS 366.380 (9) regulates the allowance of an attorney's fee:
1, 2. The first clause of the statute is in positive language and permits the court to fix the fee. The only exception thereto is that stated. And the exception applies only when the amount tendered by the plaintiff equals or exceeds the amount "assessed by the jury." The jury determines the value of the property as that property is described and identified to the jury by the pleadings upon which trial is had, not the value of the property described in the tender. If there has been a material reduction in the amount of property involved in the taking between the event of the tender and the event of the jury's evaluation, there is no basis of comparison of the two values specified by the statute. A tender for property of a given size and description cannot be held to be a tender for property materially reduced in quantity. Plaintiff recognized this elemental proposition when it refused to pay the amount of the tender when defendants offered to accept it.
We hold that when, within the procedure prescribed by ORS 366.380, the amount of property described in *191 the complaint upon which the case is tried is materially less than that described in the tender, then that tender so made would not be available to plaintiff in determining defendants' right to attorney's fee. Upon the facts of the instant case the situation was as though no tender for the property actually taken had been made at all.
This would not follow, of course, if plaintiff were to acknowledge that the tender as made would continue to bind the plaintiff, if accepted, for the property actually to be taken.
State Highway Com. v. Efem Whse. Co., 1956, 207 Or 237, 295 P2d 1101, 70 ALR2d 797, and similar cases cited by plaintiff decide a different question. We have mentioned the allegations of value as alleged in the various complaints only to show that plaintiff considered the reduced amount of property to be taken as a material reduction. Nor do we think that the arguments about the conflicting evidence of the equities of the parties are material to decision. We are satisfied that the construction we have given the statute is correct. The judgment is reversed with direction to fix a reasonable attorney's fee. | 4bc294744c6e69b97614baedf64a95ad55c0660867abb34a0364e8e4e680e19c | 1963-04-17T00:00:00Z |
5997bc1d-b4ee-4025-9525-1d3995adfa09 | Linklater v. Nyberg | 234 Or. 117, 380 P.2d 631 | null | oregon | Oregon Supreme Court | Reversed April 10, 1963.
*118 Carrell F. Bradley, Hillsboro, argued the cause and filed briefs for appellant.
Francis W. Linklater, District Attorney, Hillsboro, argued the cause for respondent. With him on the brief was Richard Smurthwaite, Deputy District Attorney.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
REVERSED.
LUSK, J.
This is an appeal by the defendant Clayton Nyberg, a county commissioner of Washington county, from the allowance of a peremptory writ of mandamus commanding the defendant to audit and approve a voucher for the payment of money out of the "enforcement fund" created by ORS 471.670,[1] a section of the Liquor Control Act of this state. The plaintiff is the district *119 attorney of Washington county who had theretofore approved the expenditure.
The record discloses the following facts: On June 28, 1962, the court caused to be issued an alternative writ of mandamus directed to Clayton Nyberg and Barbara A. Wilcox, county commissioners, and Lena Delplanche, county treasurer of Washington county. The writ recites that the county judge, Joe A. Jaross, was absent from the state. It states that the sum of $1,395 was in the enforcement fund and the unspent portion thereof would be transferred to the general fund of the county on June 30, 1962; that on June 28, 1962, the plaintiff approved, exhibited to, and filed with the defendants Nyberg and Wilcox, as county commissioners, his formal voucher drawn against the liquor enforcement fund for the sum of $1,395 and in favor of Russ Todd to pay for certain alteration work done by Russ Todd upon plaintiff's offices in the Washington county courthouse (which work is described in some detail to show its connection with enforcement of the state's liquor laws) and that the defendants Nyberg and Wilcox refused, without legal cause, to audit and approve the said voucher.
The writ commanded the defendants to approve and pay the voucher from the liquor enforcement fund or, in lieu thereof, to appear at 4 p.m. on June 29, 1962, and show cause why they had not done so.
The defendant Nyberg was served with the writ on June twenty-eighth. The other defendants were not served. The defendant Barbara A. Wilcox appears to have signed approval of the expenditure on June 28th. Nyberg, to whom we shall hereinafter refer as the defendant, filed, on June 29th, a motion for a continuance, a demurrer and an answer, and on the *120 same day the court, after a hearing, issued a peremptory writ.
It appears, however, that the money was paid to Russ Todd by the county treasurer on June 29, 1962, and that county judge Jaross signed approval of the expenditure some time after December 17, 1962 (the exact date is not disclosed); and these facts are the basis of a motion to dismiss the appeal as moot. The motion previously was denied by this court, with leave to renew it in the briefs and on the oral argument. The motion has been renewed and will now be reconsidered.
1. Since the object of the proceeding was to compel payment of $1,395 to Russ Todd out of the enforcement fund and that is now fait accompli, nothing remains for the writ to operate upon and the case in that sense has become moot, Dimick v. Latourette, 72 Or 231, 143 P 896; Jacksonville School District v. Crowell, 33 Or 11, 52 P 693. The case differs, however, from those cited in that the defendant has not complied with the command of the writ and there is a serious doubt whether the county court, acting as such, has approved the expenditure. Be that as it may, there is a question here of sufficient general public interest to warrant its consideration and decision. State ex rel v. Smith et al, 197 Or 96, 126, 252 P2d 550; Huffman v. Alexander, 197 Or 283, 333, 251 P2d 87, 253 P2d 289; State ex rel v. Newbry et al, 196 Or 331, 337, 248 P2d 840; Perry v. Oregon Liquor Commission, 180 Or 495, 499, 177 P2d 406.
2. That question is whether the county courts of this state are required to approve the use of moneys in the enforcement fund whenever the district attorney of the county has approved the expenditure as one proper to be made in the enforcement of the Liquor *121 Control Act. We think that they have discretion either to approve or disapprove such expenditures and that any uncertainty as to the power and responsibilities of public officials charged with the administration of this fund which might result from dismissal of this appeal should be removed.
ORS 471.670 provides:
"To `audit'", says the New York Court of Appeals, "is to hear and examine and includes both the allowance and disallowance of a claim." N.Y.C. Protectory v. Rockland County, 212 NY 311, 313-314, 106 NE 80. Many like definitions may be found in the decisions summarized in 4 Words and Phrases (perm ed) 810-816. As the courts hold, to audit a claim involves the exercise of judgment or judicial discretion. People ex rel Brown v. B'd of Apportionm't, 52 NY 224, 227; Etzold v. Board of Commissioners of Huntington County (Ind) 146 NE 842, 844.
The statute under consideration provides that the claims shall be audited "in the usual manner." Some idea of what the legislature intended by this language may be gathered by referring to the statutes which define the duties and powers of the secretary of state when acting by virtue of his office (Constitution of Oregon, Art VI, § 2) as auditor of public accounts. See ORS 291.464-291.470. It is not necessary to hold that the county court has all the powers in its sphere *122 that are expressly granted to the secretary of state in his, as, for example, the power to require persons to be sworn and testify concerning the account. ORS 291.466. It is sufficient for present purposes to say that the county court, like the secretary of state, is "vested with the power to decide initially whether the claim presented was in fact incurred and whether it is a type authorized by law." State ex rel Overhulse et al v. Appling, 226 Or 575, 588, 361 P2d 86.
3. The mistake of the plaintiff was in assuming that, once he had signed approval of the voucher the duty of the county court to approve it followed as a mere ministerial act. That, we think, was also the mistake of the court in ordering issuance of the peremptory writ of mandamus. Since the allowance of the claim rested "upon the exercise of the discretion of the defendant" the writ could not require him to allow it. State ex rel Overhulse et al v. Appling, supra, 226 Or at 598. See, also, Boyd v. Dunbar, 44 Or 380, 382-384, 75 P 695.
In view of this conclusion there is no occasion to consider now the contentions of the defendant that the expenditure in question is one that could only be authorized by the county court under the power vested in it by ORS 203.120 to provide for the erection and repair of courthouses and other county buildings, and that moneys in the enforcement fund cannot be legally used to pay a bill incurred for the alteration of the offices of the district attorney. If, as counsel for the defendant indicated might be done, an action to recover the moneys paid out to Russ Todd should be brought by the county, these questions can then be determined.
We add that we do not approve the unseemly haste which characterized this proceeding. There was no *123 emergency which justified it. In the ordinary case a defendant is given ten days in which to plead to a complaint and ample time thereafter in which to prepare for trial. In this case the defendant had 24 hours in which to do all of this. He consulted an attorney who prepared his pleadings, but who, because of a previous commitment, was unable to appear and represent the defendant at the hearing. As stated, the defendant moved for a continuance. No order disposing of this motion appears in the record, though obviously it was denied. It should have been allowed and the case permitted to proceed in orderly fashion with full opportunity to the defendant in person and by attorney to present his defense.
The judgment is reversed.
[1] ORS 471.670. (1) Except as provided by subsection (2) of this section, all fines imposed by any judge, magistrate or court in the enforcement of the Liquor Control Act shall be forwarded immediately to the county treasurer of the county in which such conviction is had. The county treasurer shall keep the same in a separate fund designated as an enforcement fund. All warrants for any expenditures in the enforcement of that statute, which have been approved by the district attorney of said county, shall be drawn on this fund. All claims shall be verified by the claimants or persons having knowledge or supervision of the expenditures and shall be audited by the county court in the usual manner before presentation for payment thereof. When the enforcement fund exceeds the amount paid to satisfy the total of all claims made against it during the preceding calendar year, the excess amount shall be paid to the general fund of such county by the county treasurer on June 30 and December 31 of each year.
(2) * * * * * | 94c6f853ad7a55b917e1f73c91448cc7c6fe8fedafbb7bc1116f80b53bb7e2e1 | 1963-04-10T00:00:00Z |
d36208f3-2eef-420d-93db-05603582bc23 | State v. Vawter | 236 Or. 85, 386 P.2d 915 | null | oregon | Oregon Supreme Court | Affirmed November 27, 1963.
*86 Irvin D. Smith, Portland, argued the cause and filed briefs for appellant.
George E. Juba, Deputy District Attorney, Portland, argued the cause for respondent. On the brief were George Van Hoomissen, District Attorney, and David Robinson, Jr., Chief Deputy District Attorney, Criminal Department.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
LUSK, J.
The defendant has appealed from an order of the circuit court denying his motion to dismiss an indictment which charged him with the offense of converting intrusted property in violation of ORS 165.030. The basis of the motion was delay in bringing the defendant to trial.
The record before us discloses the following: The defendant was arrested on July 12, 1962, on the charge above stated. On July 17 he was brought before the municipal court for the city of Portland, waived examination, was held to answer, and committed to the Multnomah County Jail. On August third he was returned *87 to the Oregon State Penitentiary as a parole violator. He was indicted by the grand jury on September 11, 1962. A detainer was filed by the district attorney for Multnomah county with the penitentiary on or about September 12, and on January 31, 1963, the defendant wrote to the district attorney from the penitentiary requesting that his detainer be "withdrawn on a probationary period." On February 21, 1963, the court ordered the defendant returned to Multnomah county for further proceedings and on February 26 he was arraigned on the indictment. He requested the court to appoint counsel for him and the court did so and continued the matter until March 5, 1963. On that day the defendant filed his motion to dismiss the indictment and after a hearing the motion was denied on March 15.
The right of the defendant in a criminal case to a speedy trial is guaranteed by Article I, section 10, of the Constitution of Oregon, which reads in part: "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay * * *." An implementing statute, ORS 134.120, reads:
Contrary to the rule in most of the jurisdictions of the country, this court has consistently held that it is not incumbent upon the accused to demand a trial or take affirmative action to enforce his right to a speedy trial. State v. Dodson, 226 Or 458, 466, 360 P2d 782, and authorities there cited. But in 1955 the legislative *88 assembly adopted a different rule for a defendant who is imprisoned in the Oregon State Penitentiary or the Oregon State Correctional Institution for another offense, Oregon Laws 1955, Chapter 387, codified as sections 134.510, 134.520, and 134.530, Oregon Revised Statutes.[1]
1. Under this statute an accused confined in one of the penal institutions on another charge may give written notice to the district attorney to bring him to trial and if this is not done within 90 days after receipt of the notice the criminal proceeding must be dismissed. In Bevel v. Gladden, 232 Or 578, 583, 376 P2d 117, we held that when a criminal defendant, represented by counsel, chooses not to avail himself of this procedure, he waives the right to secure dismissal of the indictment *89 because of undue delay. The dictum in State v. Gardner, 233 Or 252, 377 P2d 919, 923, so far as it seems to be in conflict with this holding in the Bevel case, should be disregarded. Our statute appears to have been patterned after a similar statute of California and the construction given it in the Bevel case is in harmony with the construction of the California statute by the courts of that state. People v. Godlewski, 22 Cal 2d 677, 140 P2d 381 (1943); People v. Ragsdale, 177 Cal App 2d 676, 2 Cal Rptr 640; Osmulski v. Superior Court of Placer County, 169 Cal App 2d 444, 337 P2d 520. It so happened that in the Bevel case the prisoner was represented by counsel, but the reference to that fact in the opinion cannot be taken as a decision that the statute is not applicable to a prisoner who is without counsel. That question is left open.
Relying upon the Bevel case, the state contends that the defendant has waived his right to a trial without delay by failing to demand a trial. The state further contends that in any case, the record does not support the defendant's claim of undue delay.
The defendant says in his brief that the statute is not applicable because he did not know of the indictment until he was brought into court to be arraigned on February 21, 1963. There is no evidence in the record, one way or the other, on this subject. In the federal courts the rule obtains that an accused may waive his right to a speedy trial guaranteed by the Sixth Amendment by failing to demand a trial. In two federal cases involving persons confined in the penitentiary for other offenses it has been held that in the absence of evidence as to whether the accused knew of an indictment returned against him while so confined it could not be said that he had thus waived his right. Taylor v. United States, 238 F2d 259, 261 (DC Cir, *90 1956); Fouts v. United States, 253 F2d 215, 218 (6th Cir, 1958). In another federal case it was assumed that the defendant knew of the indictment, but a motion to dismiss was allowed after twenty years had elapsed without bringing the defendant to trial. United States v. Chase, 135 F Supp 230 (ND Ill, 1955). For nineteen years he had been incarcerated in Alcatraz Prison under conditions which, it was said, made it impossible for him to demand a trial.
There certainly should be no room for debate about the proposition that a person who does not know that he has been indicted cannot be expected to demand a trial, although the five-to-four decision in McCandless v. District Court (Polk), 245 Iowa 599, 61 NW2d 674, seems to be to the contrary. It may be arguable, however, that, under a statute such as ORS 134.510 through 134.530, the burden of proving ignorance of the indictment is on the defendant, especially where, as in the present case, the defendant has been arrested and bound over to the grand jury. The briefs of counsel are silent upon this question and we shall leave it undecided, as we are of the opinion that, entirely apart from the statute, this court should not disturb the circuit court's exercise of discretion in ruling upon the motion to dismiss the indictment.
2. We have held that the reasonable period of time mentioned in ORS 134.120 forbids unreasonable delay after indictment found, as the statute expressly refers to "a defendant indicted for a crime." State v. Dodson, supra, at 461-462. See, also, State v. Jackson, 228 Or 371, 376, 365 P2d 294, 89 ALR2d 1225. We think, however, that the requirement of Article I, section 10 of the Constitution that "justice shall be administered * * * without delay" means that there shall be no unreasonable delay after a formal complaint has been filed *91 against the defendant. This is the construction placed upon the Sixth Amendment by the United States Court of Appeals for the Ninth Circuit, Iva Ikuko Toguri D'Aquino v. United States, 192 F2d 338, 350 (9th Cir, 1951) and by the Supreme Court of California upon the guarantee of a speedy trial in the constitution of that state, People v. Jordan, 45 Cal 2d 697, 290 P2d 484; People v. Godlewski, supra. While Article I, section 10, of the Constitution of this state does not contain the word "accused," as do the comparable provisions in the Constitutions of the United States[2] and of California,[3] still, we think that the same construction should be given to the constitution of this state. No different measure of protection of the rights of persons accused of crime can reasonably be said to have been in the minds of the framers of our constitution.
3. The defendant did not forfeit his right to a speedy trial because he was incarcerated in the penitentiary under sentence for another offense, State v. D'Autremont, 212 Or 344, 349, 317 P2d 932, and authorities there cited. Nevertheless, it was suggested in the leading case of State v. Keefe, 17 Wyo 227, 98 P 122, 22 LRA NS 896, 906, that in the case of convicts "a trial might be longer delayed, in the absence of a statute controlling the question, than in the case of one held in jail merely to await trial, without violating the constitutional right, for an acquittal would not necessarily terminate imprisonment."
*92 The elapsed time from July 16, 1962, when an information of felony was filed against the defendant, until March 5, 1963, the date he filed his motion to dismiss, was seven months and 17 days. An affidavit was filed by the defendant in support of his motion, but it states nothing in addition to the record to which we have previously referred, other than that in the intervening time the defendant had been without counsel. An affidavit of a deputy district attorney adds nothing to the facts already stated. No testimony appears to have been taken at the hearing and the order of the trial judge denying the motion to dismiss recites merely that the court had "considered affidavits and argument of counsel."
4. The motion was addressed to the discretion of the trial judge. State v. Jackson, supra, 228 Or at 378; State v. Dodson, supra, 226 Or at 465; State v. Ellison, 209 Or 672, 681, 307 P2d 1050; State v. Kuhnhausen, 201 Or 478, 513, 266 P2d 698, 272 P2d 225. As we have frequently said, "* * * the constitutional right of an accused person to a speedy trial contemplates a trial conducted according to fixed rules, regulations, and proceedings at law, free from vexatious, capricious, and oppressive delays." State v. Kuhnhausen, supra, and cases there cited.
5. This case, therefore, comes down finally to the question whether this court should declare that a delay of about seven and one-half months in bringing an accused to trial in an ordinary criminal case in Multnomah County there being no circumstances shown other than that the accused was during this time a prisoner in the penitentiary serving a sentence for another offense is per se a violation of the constitutional right of the defendant to a speedy trial. More accurately stated, the question is whether we are justified *93 in saying that the circuit court abused its discretion in denying the defendant's motion to dismiss the indictment.
We get little help from the adjudicated cases, as in most of them the delay was for a much longer period of time and there was evidence of the reason for the delay. We put aside, of course, cases which involved statutes fixing a definite time for bringing the accused to trial. In a well documented article entitled "The Right to a Speedy Criminal Trial" in 57 Col L R 846, at page 852, it is said: "It appears thus far that a constitutional violation will seldom, if ever, be declared unless the delay lasts well over a year." The author refers to cases in which there were what he characterizes as "comparatively short delays;" one of 30 months, and two of 18 months, each.
In Taylor v. United States, supra, more than three years intervened between the commission of the alleged offense and the indictment and a little more than two years after the indictment until the trial. In the meantime the defendant had been in prison for another offense. On appeal from the judgment of conviction the court reversed and dismissed the indictment, giving as its reasons that the defendant did not know of his indictment and could not therefore demand a speedy trial and that it would not be possible to say that the delay did not harm the defendant because the circumstances disclosed a "weak" case against him. The court said: "Had the evidence been overwhelming, so that no infirmity might be made to appear, a different result might be reached." 238 F2d at 262. In Fouts v. United States, supra, after the case had been remanded to the District Court to make findings on the question whether the defendants knew that an indictment had been returned against them and had waived their right *94 to a speedy trial by failing to demand it, and the District Judge on such remand had made findings to the effect that the defendants had thus waived their right, 166 F Supp 38, the United States Court of Appeals, on a second appeal, affirmed the District Court's denial of the motion to dismiss the indictment, notwithstanding the lapse of a period of more than ten years between the date of the indictment and the trial, 258 F2d 402.
In Arrowsmith v. State, 131 Tenn 480, 175 SW 545, LRA 1915E 363, the defendant having been convicted on one of several indictments and committed to the penitentiary, the court, on motion of the attorney general, "retired" the other cases from the docket "until the expiration of said sentence." Two years later the defendant was tried on one of the other indictments. The court held that the cases were continued "needlessly and vexatiously" and ordered the defendant discharged. The delay was not only considerably longer than that in the present case, but was based upon an inadmissible ground and an erroneous conception of the defendant's constitutional right to a speedy trial.
An analogy might be suggested by reference to the former statute of this state which required that a defendant be brought to trial at the term of court next succeeding the term in which an indictment was found against him. As we held in State v. Kuhnhausen, supra, this statute was not a construction of the constitutional provision, but was enacted to give it effect. We there pointed out that, owing to the varying statutory provisions for terms of court in Oregon a compliance with the statute would be shown if a defendant was tried within one year in some counties, while in *95 others the trial must have been had within much shorter time, in Multnomah County, for example, within 60 days or less. The former statute is, therefore, a not very reliable guide for determining what period of time, considered by itself, is to be deemed a reasonable period of time as contemplated by the constitutional language "without delay."
Reference may also be made to United States v. Fox, 3 Mont 512, 515-516, where the court said:
See, also, People v. Den Uyl, 320 Mich 477, 487, 31 NW2d 699.
In State v. Prosser, 309 NY 353, 130 NE2d 891, 57 ALR2d 295, 298, Judge Fuld, writing for the court, said:
*96 Prolonged imprisonment on the pending charge did not concern the defendant, as he was in prison anyway. He may have suffered anxiety incident to the accusation. As to the loss of witnesses or the dulling of memory, no such claim is made in the affidavit filed by the defendant in support of the motion to dismiss, though he does say in his brief: "Witnesses cannot be located and the memories of others are dimmed with time." Delay in and of itself may be sufficient to establish violation of the constitutional guarantee, as, for example, the passing of such a period of time that the thought of ordering the defendant to trial "shocks the imagination and the conscience." United States v. Chase, supra, 135 F Supp at 233. The judge there was speaking of a delay of 20 years.
But, as stated in People v. Romero, 13 Cal App 2d 667, 672, 57 P2d 557: "Time, only, will not always suffice as the sole basis for the determination of this question, but time, together with the surrounding circumstances, avoids an arbitrary standard and yet effectively preserves the safeguards created by the Constitution."
Necessarily, there will always be delay greater or less in bringing an accused to trial. Legislation recognizes that a delay of 60 days in indicting a defendant who has been held to answer is reasonable. ORS 134.110. Other reasonable delays, about which the trial judge knows and this court does not, frequently occur. When the period of time that has elapsed after the defendant is held to answer is of such length as to be manifestly excessive and unreasonable, it may be incumbent upon the state, in order to avoid dismissal of the indictment, to justify the delay, but the delay in this case was not of that character. In and of itself, it *97 was not sufficient to require dismissal of the indictment, and no circumstances are shown which indicate that the delay was oppressive or vexatious.
It was within the discretion of the trial judge to deny the motion to dismiss the indictment, and the order appealed from is, therefore, affirmed and the cause remanded for further proceedings.
[1] ORS 134.510 (1) Any inmate of the Oregon State Penitentiary or the Oregon State Correctional Institution against whom there is pending at the time of commitment or against whom there is filed at any time during imprisonment, in any court of this state, an indictment, information or criminal complaint charging him with the commission of a crime, may give written notice to the district attorney of the county in which the inmate is so charged requesting the district attorney to prosecute and bring him to trial on the charge forthwith.
(2) The notice provided for in subsection (1) of this section shall be signed by the inmate and set forth the place and term of imprisonment. A copy of the notice shall be sent to the court in which the inmate has been charged by indictment, information or complaint.
ORS 134.520 (1) The district attorney, after receiving a notice requesting trial under ORS 134.510, shall, within 90 days of receipt of the notice, bring the inmate to trial upon the pending charge.
(2) A continuance may be granted upon the request of the district attorney and with the consent of the inmate. The court shall grant any continuance with the consent of the defendant. The court may grant a continuance on motion of the district attorney for good cause shown. The fact of imprisonment is not good cause for the purposes of this subsection.
ORS 134.530 On motion of the defendant or his counsel, or on his own motion, the court shall dismiss any criminal proceeding not brought to trial in accordance with ORS 134.520.
[2] The Constitution of the United States, Amendment VI: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, * * *."
[3] The Constitution of California, Article I, section 13: "In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial; * * *." | 86d0ff31395436c957b799a0138d2977cfc15d345be0fffba50b387aa2c7c70a | 1963-11-27T00:00:00Z |
b3ea4a02-ac54-4a17-a364-94d864fdc15c | Mock v. Bell Motors, Inc. | 234 Or. 224, 380 P.2d 992 | null | oregon | Oregon Supreme Court | Affirmed May 1, 1963.
Charles A. Telfer, Grants Pass, argued the cause for appellant. On the briefs were Johnson, Telfer & Sloan, Grants Pass.
Gene L. Brown, Grants Pass, argued the cause for respondent. With him on the brief was R. Gene Smith, Grants Pass.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
*225 PER CURIAM.
Plaintiff filed this suit seeking specific performance of a written contract. The contract called for plaintiff to purchase a motor car sales business owned by defendant. In his complaint plaintiff alleged the terms of the written agreement asserted full performance on his part and a failure of defendant to perform and prayed for specific performance. Defendant denied that the written agreement was the actual contract and alleged that the sale was governed by an oral agreement materially different in its terms than the written agreement. Defendant alleged that the written contract was executed for the purpose of obtaining the acquiescence of the Ford Motor Company to the sale. The trial court decided for plaintiff. Defendant appeals.
The trial court held that this case was governed by Kergil v. Cen. Ore. Fir Supply, 1958, 213 Or 186, 323 P2d 947, 71 ALR2d 378. We think the trial court was right. The evidence here established, without dispute, the execution of the written contract. Defendants only excuse for avoiding the contract was the reason above expressed. If this contract could be set aside for the reason assigned, then no similar contract would be secure.
The other issues presented by defendant are factual. We have examined the long record in this case and find that the trial court's decision was right. The decree is affirmed. | a7dbdb072ee27f6d2c60716cace371a028146657f600d5a1536cf6b0ad4f898d | 1963-05-01T00:00:00Z |
71324eec-9aaa-4dee-bdb6-621e4d0e6678 | State v. Moczygemba | 234 Or. 141, 379 P.2d 557 | null | oregon | Oregon Supreme Court | Affirmed March 13, 1963.
Petition for rehearing denied April 16, 1963.
*142 George A. Haslett, Jr., Portland, argued the cause and filed a brief for appellants.
David Robinson, Jr., Deputy District Attorney for Multnomah County, argued the cause for respondent. With him on the brief were Chester W. Pecore, District Attorney, and Charles R. Harvey, Deputy District Attorney, for Multnomah County.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
PERRY, J.
The four defendants were convicted of an assault with a dangerous weapon upon one Laura Myreen, and each appeals.
The assault occurred the evening of November 19, 1961, at the Rocky Butte Jail, Multnomah County, where the defendants were prisoners. Laura Myreen was a member of a church group which visited the jail each Sunday evening to conduct services for the *143 prisoners. On the evening of the assault the church group had just been seated in the jail dining hall and were waiting for the prisoners to assemble before beginning the services. About 25 prisoners had filed into the dining hall and taken seats when one of the prisoners, William Johnson, suddenly grabbed Laura Myreen around the neck with one arm and pressed a kitchen paring knife to her throat. Almost simultaneously the four defendants grabbed four other members of the church group around the neck in a similar manner, and pressed homemade knives against their throats. One of the defendants stated, "We're desperate and want out of here."
Laura Myreen was released almost immediately when a jail guard jerked Johnson's arm and then chased him with a chair until he dropped the knife and surrendered. A few minutes later the four defendants also released their victims and surrendered their weapons.
Due to the confusion and excitement of the moment the witnesses were unable to identify which defendant held which victim. However, the witnesses positively identified the four defendants as the four men who each held a victim.
The homemade knives which the defendants wielded were made of combs and a tooth brush, with the teeth and bristles removed and one end filed to a sharp point. Handles had been fashioned by wrapping strips of gauze around one end of the comb.
The indictment charged the defendants, as principals, with assaulting Laura Myreen with a dangerous weapon. William Johnson was also joined in the indictment but was not joined in this trial. The actual *144 assault upon Laura Myreen was committed by Johnson; none of the defendants had touched her.
1. Each of the defendants contends that the trial court erred when it refused to grant his motion for a directed verdict of acquittal. The basis of each defendant's motion is that there is no evidence that any one of them assaulted Laura Myreen. The state contends that the evidence discloses that each of the defendants was an aider and abettor of Johnson in the commission of the assault and each therefore is a principal. ORS 161.220, insofar as is relative to this issue, provides:
Certainly mere presence at the scene of a crime, with knowledge that an unlawful assault is being committed, is insufficient evidence to convict a person as an aider and abettor of the person committing the assault. Hicks v. United States, 150 US 442, 37 L Ed 1137, 14 S Ct 144; cf 12 ALR 275, III.
It is, therefore, self-evident that if two or more persons plan or conspire to commit a criminal act to effectuate a common purpose, though only one of them *145 actually commits the deed, the other or others have aided or abetted. State v. Brown, 113 Or 149, 231 P 926.
2, 3. The fact that each of the defendants, as well as Johnson had armed himself to attend a religious meeting where hostages could be taken, and at the meeting the defendants acted in concert in seizing the hostages, is ample evidence upon which reasonable minds could agree that those armed had agreed upon a plan to assault and seize some visitor or visitors for the purpose of effecting escape. Also, it is not necessary to establish that they intended that Laura Myreen was to be the person assaulted. It is sufficient if it appears they intended to commit the assault upon some one to effect their escape. State v. Johnson, 7 Or 210. There is no merit in this assignment of error.
4. The defendants also assign as error the trial court's failure to sustain their objection to the following:
Assuming the objection made was sufficient, the court was in error in permiting the witness to state his *146 conclusion. This was a matter to be determined by the jury. The error can not, however, be considered as a cause for reversal. This witness had previously testified as follows, relative to the occasion in question:
We believe, therefore, the error was cured.
5. The defendant Robert Hull made the following objection to the instructions given by the court:
Each of the other defendants then joined in the exceptions. No other exceptions were taken.
This court has consistently and constantly stated that it will not consider general exceptions to instructions given by the court.
*147 An exception, to have validity, must point out the error in the instruction so that the trial court may, if in error, correctly reinstruct the jury. This rule and a number of this court's pronouncements thereon are set forth in State of Oregon v. Kader, 201 Or 300, 270 P2d 160.
While we have not discussed other assignments of error set forth in the defendants' brief, we have carefully considered them and find in them no merit.
The judgment is affirmed. | 8e937e2185e1f3a8da636038e083288e92ed00266ca7564c9177205c07b59d4a | 1963-03-13T00:00:00Z |
e5cef7a1-ad2b-46a6-8b59-c54fe065eb23 | Boyle v. City of Bend | 234 Or. 91, 380 P.2d 625 | null | oregon | Oregon Supreme Court | Affirmed April 10, 1963.
*93 Howard A. Rankin, Portland, argued the cause for appellant. With him on the briefs were Harry A. English, City Attorney, Bend, and Shuler, Sayre, Winfree & Rankin and Michael J. Walsh, Portland.
Joseph Larkin, Redmond, argued the cause for respondents. With him on the brief were Cunning, Brewster, Copenhaver & Larkin, Redmond, and Emerson U. Sims, Portland.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
O'CONNELL, J.
This is a proceeding in which the validity of a special assessment levied against plaintiffs' property by defendant city is at issue. Defendant city appeals from a judgment entered on a verdict in favor of plaintiffs.
In 1957 defendant started plans for the improvement of that part of U.S. Highway 97 which constituted East Third Street in the city of Bend. The city commission, through appropriate resolutions, approved the plans and eventually the state of Oregon joined the project. The city contributed 25% of the cost and the state 75%. On July 11, 1960 notices of the improvement were posted at both ends of the project as required by the city charter. On July 26, 1960 plaintiffs filed petitions of remonstrance with the city. The petitions were accompanied by a letter of *94 one of the petitioners explaining that the objectors were not opposed to the project but that they objected to the special assessment upon their property with the exception of the assessment for the cost of curbs and parking strips. On July 27, 1960 the city commission met and considered the remonstrances, and on September 8, 1960 a public hearing was held before the State Highway Commission at which the city urged the prompt completion of the project. On November 2, 1960 the city entered into a contract for the widening of the street. After the project was completed in October, 1961, the defendant city published notice of proposed assessment in the Bend Bulletin on December 4, 1961 pursuant to the city charter. At about the same time the defendant sent a notice in the mail to each of the plaintiffs. The notice is set out in the margin.[1] On December 20, 1961 plaintiffs filed *95 objections to the assessment and on the same day the defendant passed a resolution levying the assessment.
Plaintiffs' objection to the assessment was that their property was not benefited by the widening of East Third Street, but on the contrary was harmed by the project and that the defendant acted in an arbitrary and capricious manner in levying the assessment. Plaintiffs appealed to the circuit court for Deschutes county in accordance with the provisions of ORS 223.397 which provides for a jury trial upon the issues, among others, of whether the property is benefited by the project and whether the assessment is fairly and equitably spread.[2]
*96 Defendant demurred to plaintiffs' notice of appeal on the ground that the circuit court had no jurisdiction of the subject of the action. The demurrer was overruled. The case was tried before a jury which returned a verdict for plaintiffs in the following form:
*97 Judgment was entered on the verdict and defendant appealed after making a motion for judgment n.o.v. and in the alternative for a new trial. The motion was denied.
1. Defendant contends that the procedure involved in levying assessments for street improvement is a matter of local concern and that defendant's charter provisions relating to the levy of assessments render inoperative ORS 223.397[3] under Article XI, § 2, Oregon Constitution[4] vesting home rule power in cities. Defendant argued that by the very terms of Oregon Laws 1959, ch 219 (ORS 223.387 to 223.399) ORS 223.397 is inapplicable. Defendant relies upon ORS 223.399, which reads in part:
Defendant then points to the procedural provisions in its charter in connection with improvement of streets, including the filing of objections by property owners and the hearing of such objections by the city commission. *98 However, the charter is silent as to judicial review by appeal to a regularly constituted court. We do not regard the charter provisions for the hearing of objections by the city commission as a negation of the statutory provision for judicial review.
The question remains as to whether the review of objections to the assessment of property is a matter upon which the legislative assembly may legislate. It is generally held that legislative acts relating to matters of local concern are invalid only if they conflict with the municipal charter or ordinance.[5] Under a more extensive view, state legislation on matters of local concern is invalid even if there is no municipal legislation on the subject. It is not necessary for us to decide at this time which of these views will prevail in Oregon[6] because we are of the opinion that ORS 223.397 deals with a matter of general concern to the state as a whole.
2-5. It may be conceded that "a tax levy by a municipality, germane to the purposes for which it was incorporated * * * is a matter of local concern."[7] And the procedures by which the city determines whether *99 an improvement is to be made; whether it is to be a general or special assessment; and how objections to the levy are to be handled, are matters which the city has the controlling power to adopt within constitutional limits. But when one group of property owners in a city is segregated from other inhabitants in the city for separate tax treatment, the procedural safeguards to which that group is entitled in the process of imposing a charge on their land is a matter of general concern. The imposition of a special assessment upon property which is not specially benefited by the improvement unjustly deprives the owner of a property interest. The question of whether his property is benefited is, therefore, vital and the procedure by which that question is determined is equally vital. A matter of such fundamental nature, relating to the procedure by which it is determined whether a person's property is fairly charged with the cost of a city improvement, is not at that point a municipal affair but a matter of general public interest in the state. Therefore, the legislative assembly had the power to guarantee to the property owner the protection afforded by traditional court procedure, including a trial by jury as provided in ORS 223.397.
6. Brimmer v. Village of Elk Rapids, 365 Mich 6, 112 NW2d 222, 226 (1961) emphatically supports the same point of view. There the court said:
The next assignment of error attacks ORS 223.397 on the ground that it violates Article III, § 1 of the Oregon Constitution (the separation of powers provision) by permitting the judiciary to perform a legislative function. The argument proceeds upon the premise that the power to determine whether property is benefited or the extent to which it is benefited by a municipal project is a legislative power which cannot be exercised by the judicial branch of government. ORS 223.397 certainly purports to invest this power in the courts. Therefore, the question is whether defendant's major premise is sound.
*101 7, 8. There is no doubt that the power to determine whether an improvement is to be made and that a tax will be imposed to meet the cost of the improvement is a purely legislative matter.[9] The question of whether property is benefited by an improvement is quite another matter. It is universally conceded that the courts have power to set aside a special assessment which is arbitrarily imposed upon property not benefited by the improvement.[10]
9. If the determination of whether there is no benefit is a judicial function, the determination of whether the property is benefited to the extent of the assessment would also seem to be a judicial function. It must be admitted that the cases and texts seldom make this clear. Frequently it is said that the question of benefit is not a judicial question unless the action is arbitrary. Thus in Wagoner v. City of La Grande, 89 Or 192, 202, 173 P 305 (1918), quoting from Page and Jones, Taxation by Assessment (1909), it is said:
It would be less confusing to say that the question of benefit is always a judicial question but that the scope *102 of review is limited.[11] The confusion arises out of failing to distinguish the reviewability of the question of benefit and the scope of review of that question.
10. Whether a function imposed upon a court is "nonjudicial" and, therefore, in violation of the separation of powers principle, cannot be determined by applying abstract definitions of legislative and judicial functions. The validity of the imposition must rest upon practical considerations relevant to the efficient operation of government with due regard, of course, to the limitations upon the respective functions of the two branches fixed by tradition. If the duty imposed calls for the performance of functions to which the judicial machinery is adaptable, there can be no constitutional objection to the delegation. This is the import of Stehle v. Department of Motor Vehicles, 229 Or 543, 368 P2d 386 (1962). The question of whether property is benefited by an improvement is the type of question courts and juries are passing upon every day. Therefore, the duty imposed upon the court by ORS 223.397 to decide that question is not alien to its proper function.
11. Defendant next contends that plaintiffs failed to file timely objections to the assessment proceedings in conformance with the defendant's charter. The notice provision in the charter is as follows:
The city recorder caused a notice of the proposed assessment to be published in the Bend Bulletin on December 4, 1961 in conformance with this provision. Plaintiffs did not file objections until 16 days had elapsed. But, as we have previously noted, at about the same time the notice was published in the newspaper, defendant mailed a notice informing plaintiffs that objections would be heard on December 20, 1961. The notice is set out above in the margin. Plaintiffs filed objections on this latter date.
Defendant argues that the letter notice was a mere gratuitous act on the part of the city not required by the charter. Moreover, defendant contends that the two notices were consistent in that the newspaper notice informed plaintiffs as to the time within which objections were to be filed, whereas the letter notice informed plaintiffs when the meeting to hear objections would be held to hear timely filed objections. However, the letter notified plaintiffs to be present at the time and place designated "for the purpose of making objections." We believe that persons receiving such a notice would be justified in assuming that they could make their objections at that time and that it would not be necessary to file the objections prior to the meeting. Therefore, defendant is estopped to assert the previous notice as a bar to plaintiff's objections.
*104 There was evidence from which the jury could reasonably find that plaintiffs' property was not benefited by the improvement. The jury was correctly instructed.
The judgment is affirmed.
[1] THIS NOTICE CAREFULLY IT IS IMPORTANT
"To the person or persons addressed below:
"Your attention is called to the Notice of Proposed Assessment appearing below, notifying you of a City Commission meeting at which such proposed assessment is to be made, and requesting you to appear before the City Commission if you have any objection to the proposed assessment. If you have no protest you need not appear.
* * * * *
"You are hereby notified that the City Commission of the City of Bend, Oregon, will meet in the City Commission Room of the City Hall in said City, at the hour of 7:30 o'clock P.M. on for the purpose of hearing and considering objections to a proposed resolution levying assessments for the cost of the above described improvement, and for the purpose of passing a resolution levying such assessments therefor as the said City Commission, after due hearing and consideration of objections, shall deem just and legal.
"That in said proposed assessment resolution along with other assessments proposed to be levied, it is proposed to levy an assessment against your property for the sum herein stated, or such other sum as the City Commission shall determine to be just and legal.
"Amount of Assessment ____ (Amount)
"Now, therefore, you are hereby notified and requested to be present at said time and place, for the purpose of making objections, if any you may have, to said proposed assessment. If you have no protest, you need not appear.
[2] ORS 223.397 reads as follows:
"(1) Owners of any property against which an assessment for local improvements has been imposed have a right of appeal to the circuit court for the county in which the land is located, or to the circuit court of the county in which the city has its legal situs, by serving a notice of appeal upon the city within 20 days after the passage of the ordinance making assessment against the property of such owners, and not otherwise. Two or more persons may join in the appeal, or separate appeals may be taken. In taking the appeal, no pleading or other papers need be filed in circuit court other than the notice of appeal with proof of service thereof, and a certified copy of that part of the ordinance or assessment roll covering the property of the appellants. The notice of appeal shall set forth the grounds of such appeal.
"(2) The appeal shall operate as a stay of proceedings to collect an assessment against the property involved in the particular assessment appealed from, but not against the balance of the property assessed at the same time, until after a determination of the appeal. A right of trial by jury shall exist. The question to be determined by a court or jury upon the appeal shall be the grounds stated in the notice of appeal, to the extent that remonstrance or objection was duly and timely made prior to the assessment, and, if the grounds of appeal so state, whether or not the property is benefited to the extent of the assessment and whether or not the assessment is fairly and equitably spread, according to benefits upon the property within the district assessed. The judgment upon the appeal shall determine the validity of the assessment, if such validity was a ground of appeal, and the amount of the assessment which shall be lawful and proper against the particular property."
[3] For the general proposition that matters of local concern are preempted by the city charter defendant relies principally upon State ex rel Heinig v. Milwaukie, 74 Or Adv Sh 1115, 373 P2d 680 (1962), where it was said that "the legislative assembly does not have the authority to enact a law relating to city government even though it is of general applicability to all cities in the state unless the subject matter of the enactment is of general concern to the state as a whole, that is to say that it is a matter of more than local concern to each of the municipalities purported to be regulated by the enactment."
[4] "* * * The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * * but such municipality shall within its limits be subject to the provisions of the local option law of the State of Oregon."
[5] 1 Antieau, Municipal Corporation Law, p. 133 (1962). See, 2 McQuillin, Municipal Corporations § 4.83 (3d ed 1949); Conflicts Between State Statutes and Municipal Ordinances, 72 Harv L Rev 737, 740 (1959). Under this view ORS 223.397 would be operative since, as we have indicated, defendant's charter does not conflict with the statute.
[6] Although the language in State ex rel Heinig v. City of Milwaukie, supra, states broadly the inhibition on state legislation relating to local matters, the case stands only for the proposition that a statute is inoperative to the extent that it conflicts with an ordinance on a matter of local concern.
[7] City of Portland v. Welch, 154 Or 286, 298, 59 P2d 228, 106 ALR 1188 (1936). See, 2 Antieau, Municipal Corporation Law, p. 290 (1962), citing cases to the effect that the imposition of a special assessment for municipal improvements is a matter of local concern.
[8] Dell v. City of Lincoln, 170 Neb 176, 102 NW2d 62, 73 (1960) states:
"`The preservation of order, the enforcement of law, the protection of life and property, and the suppression of crime are attributes of state sovereignty and matters of state-wide concern, * * *.'
* * * * *
"As we view it, statutes which are enacted for the transfer or protection of the property rights of every owner of real property in the state, or those in a proper municipal classification in this state, and the compensation which such owners are entitled to receive for the public use or disposal thereof as well, is of state-wide concern."
And in In re Fortune, 138 Ohio St 385, 35 NE2d 442 (1941), a statute permitting an appeal to the courts from the decision of a municipal civil service commission was held to embrace a matter of general concern although in Ohio municipal civil service generally is held to be a matter of local concern.
See also, Ex Parte Shaw, 32 Cal App2d 84, 89 P2d 161, 162 (1939); Schieffelin v. Leary, 219 App Div 660, 220 NYS 587, 594 (1927); Berry v. City of Fort Worth, 124 SW2d 842, 846 (Tex 1939), indicating that the judicial system is a matter of state concern.
[9] As was said in City of Enterprise v. State, 156 Or 623, 632, 69 P2d 953 (1937): "It has been held too many times to require the citation of authority that the power of taxation is a legislative power not a function of the judiciary."
[10] 2 Antieau, Municipal Corporation Law § 14.13 at p. 328 (1962) (collecting cases in text and fn. 57). See, Oregon cases cited in note 11 infra.
[11] The limited scope of review has been recognized in several of our cases. For example, Austin v. Tillamook City, 121 Or 385, 254 P 819 (1927) states that in the absence of fraud or mistake, the determination of the common council as to the amount of the benefit derived from such an improvement is conclusive (collecting cases). And see the quotations from Oregon cases in Killingsworth v. Portland, 93 Or 525, 529, 184 P 248 (1918). | 3cd2d1879b9183ac917160be5c028c7211d068919a632821f89b0a69fbfdd3db | 1963-04-10T00:00:00Z |
bab40515-dabe-49c0-baef-6aaecb945813 | Pemberton v. Bennett | 234 Or. 285, 381 P.2d 705 | null | oregon | Oregon Supreme Court | Affirmed May 15, 1963.
*286 Martin Schedler, Portland, argued the cause for appellant. On the briefs were Schedler & Moore, Portland.
Thomas E. Cooney, Portland, argued the cause for respondents. With him on the brief were Maguire, Shields, Morrison, Bailey & Kester, Portland.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and LUSK, Justices.
AFFIRMED.
DENECKE, J.
The defendants admitted liability and plaintiff recovered a verdict in a personal injury action in the sum of $1,731.55. Plaintiff alleges that she suffered serious injuries and in her complaint she prayed for $45,000 general damages and $1,231.55 special damages. Plaintiff has appealed from the verdict.
Plaintiff assigns as error the trial court's granting of defendants' motion to require plaintiff to be physically examined by a physician selected by the defendants out of the presence of plaintiff's attorney. Defendants' motion was accompanied by an affidavit. It recited that it had been arranged for plaintiff to be examined by a physician; that the plaintiff arrived with her attorney who refused to permit the plaintiff to be examined unless he was present; and that the physician refused to make the examination under these conditions. There is nothing to indicate in what way plaintiff believed her physical examination out of the presence of her attorney would be or was prejudicial *287 to her. The defendants did not offer any testimony at the trial and the physician who examined the plaintiff did not testify.
Other jurisdictions have varied in their solution to this problem; partially depending upon statutes of the jurisdiction and the particular circumstances attendant upon the examination. See Annotation, "Right of party to have his attorney or physician present during his physical examination at instance of opposing party," 64 ALR2d 497 (1959).
This court in Carnine v. Tibbetts, 158 Or 21, 74 P2d 974, held that the requirement of a physical examination by a physician selected by the opposing party is largely within the discretion of the trial court. In that case, however, it was held that the trial court abused its discretion by refusing to order a physical examination. The court there stated, at p 34:
The right of counsel to be present was not discussed.
1. We hold that whether or not counsel can insist on being present at a medical examination of his client by a physician other than the treating physician, is a matter largely within the discretion of the trial court.
The most compelling ground for conditioning the right to a physical examination upon the right of counsel *288 to be present is that when a person retains counsel to represent him in litigation, such counsel ordinarily can be present at all times to advise his client in any matter affecting the lawsuit. On the other hand, a medical examination is not an occasion when the assistance of counsel is normally necessary. This is so because of the nature of a medical examination, which is very different, for example, from an oral discovery examination by opposing counsel. It is also not ordinarily regarded as an adversary proceeding because a medical examiner is not supposed to be, and ordinarily is not, seeking to establish facts favorable to the party who engaged him to make the examination. This is the case even though the examining physician is selected and compensated by the opposing party.[1] Unfortunately, such objectivity is not always present.
The presence of an attorney in an examination would probably tend to prolong the examination and could create an atmosphere in which it would be difficult to determine the examinee's true reactions. This would result in it becoming more difficult to secure a medical examination by the kind of physician whose opinions are particularly desired by the court, i.e., those who regard the examination as an objective attempt to find the facts, regardless of the consequences to any party.
However, there are certain occasions when the trial court might determine that the attorney's presence at all or part of an examination is a reasonable request. The examinee, the examiner, the nature of the proposed examination or the nature of the medical problem, *289 these factors, separately or collectively, could cause the trial court to condition the examination upon the attorney being permitted to be present at all or part of the examination.
2. In the instant case, no reason was advanced why it was desirable or necessary that the attorney for the plaintiff be present at the examination. The trial court had no basis for determining whether or not the examination should be conducted with or without the presence of plaintiff's counsel. This assignment of error is found to be groundless.
3. The defendants attempted to prove at trial that the plaintiff's injuries were not caused by defendants' fault but had been caused by a prior accident. Plaintiff objected to such proof and now contends that its admission was error because such proof was a matter of mitigation of damages and mitigation had not been pleaded by the defendants. This is not a matter of mitigation of damages. Defendants were contending that the plaintiff's condition was not caused by the conduct of the defendants, but rather was caused by a prior accident. This is a contention that may be made under pleadings in which the defendants deny plaintiff's injuries were caused by defendants' conduct.
4. Plaintiff excepted to the court's instruction to the jury that the plaintiff could not recover for an aggravation of a pre-existing injury because the plaintiff had not pleaded aggravation. Plaintiff argues that aggravation was not in the case because she did not plead it and neither did defendants. As above stated, the defendants did urge that the injuries plaintiff was seeking damages for were caused by a prior accident. The physician called by the plaintiff testified that there was some relationship between plaintiff's present *290 physical condition and the prior accident. The trial court was justified in believing, under these circumstances, that an instruction that the plaintiff could not recover for an aggravation of a prior injury was necessary for the clarification of the jury.
Judgment affirmed.
[1] Principles of Medical Ethics, American Medical Association, § 6: "A physician should not dispose of his services under terms or conditions which tend to interfere with or impair the free and complete exercise of his medical judgment and skill or tend to cause a deterioration of the quality of medical care." | 694884be8d2ac061e844589379b35e09c78305f0bc97f1c8db51834b80b2eb17 | 1963-05-15T00:00:00Z |
dfe3a8d5-57f6-4831-afe1-8e671a816bc7 | State v. Otten | 234 Or. 219, 380 P.2d 812 | null | oregon | Oregon Supreme Court | Affirmed April 24, 1963.
John C. Anicker, Jr., Oregon City, argued the cause and submitted a brief for appellant.
*220 Donald B. Bowerman, Deputy District Attorney, Oregon City, argued the cause for respondent. With him on the brief was William E. Schumaker, District Attorney, Oregon City.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
AFFIRMED.
McALLISTER, C.J.
The defendant, Anthony Otten, was convicted by a jury in the circuit court for Clackamas county of the crime of assault and robbery while armed with a dangerous weapon, and sentenced to the penitentiary for life. He appeals.
The two questions presented are whether the court erred in denying defendant's motion for a continuance, and whether a violent and profane outburst by defendant during the district attorney's closing argument entitles defendant to a new trial.
The state offered convincing evidence that defendant and an unidentified accomplice entered the Self Service Market located about seven miles north of Oregon City at about 11:00 o'clock p.m. on April 23, 1962; that defendant pointed a revolver at the cashier, and forced him to hand over the money from the cash register. The defendant and his accomplice fled after forcing the cashier and a customer to lie on the floor at the rear of the store where the customer's wallet was taken from him. The evidence further showed that the defendant and two companions were at the Falls View Tavern in Oregon City on April 23, from about 4:30 p.m. to about 9:30 p.m., when they left and returned again sometime after 11:30 p.m., and remained until closing time. The billfold that was taken from the customer was found on the day following the robbery in the parking lot of the Falls View Tavern.
*221 The defendant relied entirely on the alibi that he was in Albany when the Self Service Market was robbed. Albany is about 70 miles south of the scene of the crime. He testified that he had spent the evening of April 23, at the Lady Gay Tavern in Albany in the company of Jack McReynolds, Nelda Mills, Dotty Thompson, Hank Manning, Dick Spencer and others, and that he had checked into the Albany Hotel about 10:30 p.m. on that day. Subpoenas were issued one week before the trial to the sheriff of Linn county for service on Nelda Mills, Dotty Thompson, Jack McReynolds, Ann Sorensen and Caroline Porter. The latter three appeared for the trial in response to the subpoenas, but the defendant called as witnesses only Jack McReynolds and Caroline Porter. Neither witness was able to corroborate defendant's alibi. McReynolds testified that he had spent some time with defendant in Albany, but could not remember any specific date. Caroline Porter testified that defendant had checked into the Albany Hotel at 11:00 o'clock a.m. on April 23, instead of at about 10:30 p.m. on that day as testified by defendant. Ann Sorensen was not called because she "could add nothing."
The trial commenced on Friday, July 13, 1962, and was concluded on the same day. At about 4:00 o'clock in the afternoon, after presenting all of his testimony then available, defendant moved that the trial be adjourned until the following Monday morning, as follows:
After further colloquy between the court and counsel the court denied the motion as follows:
1. A motion for a continuance is addressed to the sound discretion of the trial court and its ruling thereon will not be disturbed upon appeal except for *223 an abuse of that discretion. State v. Cole, 233 Or 141, 377 P2d 168 (Dec. 31, 1962), State v. Blount, Sr., 200 Or 35, 52, 264 P2d 419, 44 ALR2d 711, cert. denied, 347 US 962, 74 S Ct 711, 98 L Ed 1105 (1954); State v. Finch, 54 Or 482, 487, 103 P 505 (1909); State v. Wong Gee, 35 Or 276, 278, 57 P 914 (1899); State v. Fiester, 32 Or 254, 259, 50 P 561 (1897); State v. O'Neil, 13 Or 183, 185, 9 P 284 (1886).
2. We have carefully reviewed the record and are satisfied that the trial court did not abuse its discretion in refusing to adjourn the trial to permit defendant further time to procure evidence in support of his defense of alibi. There was no showing that the witnesses could have been produced, or that if produced they would have testified to any fact material to the defendant's case.
3. Defendant's second assignment of error alleges that defendant was denied a fair and impartial trial because the jury was incited to passion and prejudice against defendant by his violent and profane outburst directed at the district attorney during his closing argument. The court was not requested to declare a mistrial or to take other remedial action. Defendant's outburst was apparently of brief duration and effectively controlled by the experienced trial judge. If a motion for mistrial had been made and denied, we would find no abuse of discretion, and this court certainly would not be justified in granting a new trial sua sponte.
Defendant offered no objections to any of the evidence offered by the state, and took no exception to the instructions to the jury. He had a completely fair trial, and the judgment of the lower court is affirmed. | 36c39608d7a6f83ff5d447d6fd4237a597ac94a091e9b18889a406d4d455d738 | 1963-04-24T00:00:00Z |
26a2669b-7888-4311-bad3-68ddcd94b664 | Dewey v. AF Klaveness & Co. | 233 Or. 515, 379 P.2d 560 | null | oregon | Oregon Supreme Court | Reargued July 2, 1962.
Reargued February 6, 1963.
Affirmed March 13, 1963.
John G. Holden and Erskine B. Wood, Portland, argued and reargued the cause for appellant. With *516 them on the briefs were Wood, Wood, Tatum, Mosser & Brooke, Portland.
Donald Atchison, Portland, argued the cause for respondent, and reargued on July 2, 1962; Philip A. Levin, Portland, reargued the cause on February 6, 1963. With Levin on the briefs were Pozzi, Levin & Wilson, Portland.
James H. Clarke and William M. Dale, Jr., Portland, each filed a brief as amicus curiae.
Before McALLISTER, Chief Justice, and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, Justices.
AFFIRMED.
SLOAN, J.
Plaintiff, a longshoreman, was injured while working aboard the vessel Bougainville. He brought this action against the owner of the vessel. The case was tried to a jury. However, both parties moved for a directed verdict. The court dismissed the jury and entered findings and judgment in favor of plaintiff. Defendant appeals.
The appeal has been argued three times. The last argument was based on the questions discussed in the concurring opinion filed herewith. As there indicated, the court has also had the advantage of well prepared briefs of amici curiae. It requires no ultra-sensory perception to know that this case has been the subject of more than a considerable amount of discussion within this court.
We have taken the statement of facts as they were tersely stated in appellant's brief:
*518 Defendant concedes that the vessel was unseaworthy. The only assignment brought here was that the court erred in finding that "* * * the insufficient flooring was a proximate cause of plaintiff's injury."
The problem that has divided the court is whether this, and similar cases, should be decided within the more traditional concepts of proximate cause or should the court adopt the ideas expressed in the concurring opinion. Some of the majority believe that the doctrine of proximate cause, as it has become established in this state, is preferable to the theories expressed in the concurring opinion. Others of the majority believe that such a transition, if it is wise to be made at all and if it has enduring merit, should be woven into the trial practice by the evolutionary process that has historically prevented atrophy in the common law. But regardless of reason, the majority prefer to decide this case upon the issues presented to the trial court and in the original arguments here.
Defendant primarily rests its case on Zickrick v. Cooke et al, 1953, 197 Or 87, 252 P2d 185. Defendant claims that Zickrick and this case are undistinguishable. We do not agree. In the Zickrick case the defendant's negligence consisted of the failure to use sufficient binder chains to hold a load of logs on a trailer. After the load had been hauled a short distance from the loading area the logs broke loose from the bindings and caused the trailer to be upset. The plaintiff, Zickrick, came upon the scene and, as a volunteer, endeavored to help relieve the situation. In the process he was injured. Defendant, in the instant case, relies on that part of the Zickrick opinion that holds that the negligence of the defendant Cooke, in that case, had come to rest before Zickrick became an actor. What this defendant overlooks is that Zickrick was a volunteer. *519 Zickrick was in no different situation than any other person who may have chanced along the road and participated in the clean up. The effect of the opinion in that case was to hold that defendant, when he negligently loaded the trailer, was not obliged to anticipate that the natural and probable result of his negligence would be to injure a stranger who might aid in a removal of the debris caused by the negligent loading.
In the instant case the relationship between the parties is distinctly different. A reasonable man could have anticipated that the "walking boards" provided by defendant would not support the loads that were intended to be used upon them. And it would follow as a natural and probable result that when a load did break through that those, including plaintiff, charged with the duty of putting the loads in place would use the available means at hand to remedy the fault. Accordingly defendant could or should have anticipated that one of the workmen could be injured as a result of its negligence. Further, and in contrast to the facts in the Zickrick case, the relationship between plaintiff and defendant was one in which defendant owed a duty "* * * to the plaintiff to conform to a standard of conduct." Prosser, Law of Torts, (1955 2nd Ed), Chapter 9, § 47, 252. The evidence here supports the trial court's findings and the judgment is affirmed.
O'CONNELL, specially concurring.
The long delay in handing down the opinion in this case was occasioned by the court's interest in re-examining the proximate cause formula for the purpose of determining whether that formula should be abandoned. The case was orally argued three times. The last argument concerned only the question of *520 whether the proximate cause "doctrine" should be used in deciding the case at bar. The court was aided in pursuing its study of the matter by very helpful briefs prepared by amici curiae.[1] These briefs were prepared in response to an invitation by the court in which it delineated the area of inquiry by the following statement:
The majority of the court has decided to continue with the conventional proximate cause formula. I would abandon it and adopt, in essence, the approach suggested by Leon Green as explained by him in the references previously noted. The reasons for my position are developed below.
As was noted above, the case was presented along conventional lines. Defendant argues that his tortious conduct was not a proximate cause of the plaintiff's injuries as a matter of law. It is argued that defendant's tortious conduct "spent itself" and "came *522 to rest" when the hand truck fell through the flooring and that plaintiff's act in attempting to extricate the truck was a superseding cause.
Defendant relies principally upon Zickrick v. Cooke, 197 Or 87, 252 P2d 185 (1953). In that case defendants, in loading one of their logging truck trailers, failed to bind the front of the load with the usual three binder chains. As a consequence one of the two binder chains broke and the load tipped over on the highway. The plaintiff, another log hauler, came upon the scene and volunteered aid in the work of clearing the road of the obstruction. With his assistance the trailer was pulled away from the logs and the remaining binder chain was cut. After the chain was cut plaintiff went under the logs to retrieve his tools. At that time a log rolled upon him causing the injuries for which he brought the action.
The court held that "in a legal sense" the defendant's negligence "had nothing to do with the injury which plaintiff suffered," Id. at 91, 252 P2d at 187, because "the logical consequence of the failure to use a third chain, namely, the spilling of the load, was already an accomplished fact before the forces were set in motion which resulted in the injury to the plaintiff." Id. at 95, 252 P2d at 189. The court said:
The court further held that the case did "not in any way involve the rule of superseding cause." Id. at 94, 252 P2d at 188.
Plaintiff attacks defendant's use of the Zickrick case on three fronts: (1) the present case is distinguishable in that in the Zickrick case the plaintiff was a mere volunteer whereas in the present case plaintiff was "charged with the duty of undoing the results of defendant's negligence, and further that defendant owed a duty to provide plaintiff with a safe place to work"; (2) the Zickrick case was incorrectly decided because it failed to recognize the rule stated in 2 Restatement, Torts § 443 (1934), that one who negligently creates a dangerous situation will not be heard to say that the efforts of others to undo the danger could not have been reasonably foreseen; and (3) the Zickrick case is inapplicable because the present case is governed by maritime law which requires the submission of the question of causation to the jury where there is the "faintest scintilla of evidence" on the issue of causation.[3]
Defendant argues that the failure to provide adequate flooring was not the proximate cause of plaintiff's injury. As we have indicated above, defendant contends that plaintiff's conduct was a superseding cause, the negligence of defendant having "spent itself."
If causation is regarded solely as a matter of fact, *524 there would be no issue of causation to submit to the jury in this case because it is clear that the defendant's failure to supply proper dunnage was a substantial factor in bringing about the injury to the plaintiff. Unfortunately, however, the inquiry is made as to whether defendant's conduct is a "proximate cause" of plaintiff's injury not only to determine whether there is an actual causal connection between conduct and injury, but also to determine whether causally connected conduct gives rise to liability in the particular case. The latter inquiry calls for the formulation of policy as to the circumstances under which a person who causes or contributes to the causing of harm should be required to respond in damages. The court and the jury, each in its own sphere, participate in the formulation of this policy by which the existence and the extent of liability is defined. The court performs its function in this respect in deciding whether defendant should be regarded as owing a duty in the type of case before it (e.g., as to whether liability should be imposed upon a person for unintentionally causing nervous shock). The jury in turn decides whether the defendant's conduct meets the minimum standard of reasonable conduct in the community, i.e., the issue of negligence.[4]
Assuming the existence of a duty in the type of case before it, the court also may be called upon to exercise its usual function of determining whether there is sufficient evidence of factual cause or of the defendant's negligence to warrant submitting the case to the jury. It is not always made clear in the cases *525 whether the court is addressing itself to the problem of duty or to the question of sufficiency of evidence to prove a breach of duty. In some cases the conclusion that the defendant's conduct was not the proximate cause of the injury is, in fact, a judicial pronouncement that no duty exists in that class of case. And it seems evident in some of the cases that the conclusion that the defendant's conduct was not a proximate cause of plaintiff's injury is nothing more than a judicial finding that defendant was not negligent. In some of these cases this result is reached by holding, as a matter of law, that a reasonable person could not have foreseen an injury flowing from the particular conduct. It is impossible to determine what basis the court has used in most cases in declaring that the defendant's conduct is or is not the proximate cause of the injury.
The respective functions of court and jury become even more indistinct or confused when, as in the present case, the problem of liability is discussed in terms of intervening cause, i.e., whether the intervening conduct of another breaks the "chain" of causation. Occasionally this may be an inquiry as to whether defendant's conduct was a substantial factor in producing the injury a question of actual causation. More frequently it appears to be a way of saying that although defendant's conduct can be connected with the injury in a substantial way, he may be found to be free from negligence if a reasonable man would not have foreseen the intervening force.
In the case at bar the question is whether defendant should be liable for an injury occurring under circumstances which involve an intervening force. The intervening force here would be plaintiff's conduct in attempting to extricate the cart from the hole. Can it *526 be said, as a matter of law, that there is no duty owing to plaintiff? Assuming a duty is owed, can it be said that a reasonable man could not have foreseen the intervening conduct on the part of the plaintiff in attempting to lift the cart from the hole or that defendant exercised reasonable care?
Defendant's duty seems clear. The type of risk involved here was within the scope of defendant's duty and defendant should be held liable if he was negligent. The only question involved in the present case is whether defendant was negligent.[5] Whether the issue is regarded as one of duty, negligence, or proximate causation, the inquiry is ultimately the same, i.e., how are the limits upon a defendant's liability to be established?
But it is important how these limits upon liability are examined, particularly as to whether the court or the jury has the function of defining them. The proximate cause formula combines in one inquiry the question of whether as a matter of policy liability should be imposed in the class of case before the court (the duty issue); the question of whether defendant's conduct was a substantial factor in producing the injury (the actual or physical cause issue free from any idea *527 of culpability); the question of whether there is sufficient evidence of negligence to submit the case to the jury (the usual court function of ruling upon the sufficiency of evidence); the question of negligence, assuming there is sufficient evidence on the issue to warrant submitting it to the jury (the usual function of the jury to apply the foreseeability test and to determine whether defendant failed to exercise reasonable care under the circumstances). Each of these questions must be considered separately if a negligence case is to receive proper judicial treatment. And this is true whether the inquiry as to the defendant's liability is put in terms of proximate cause or in some other form. I do not say that discarding the proximate cause formula makes it any easier to answer these separate questions. I assert only that the elimination of the formula makes it easier to see the questions which must be answered. But there is less likelihood that the court will confuse its function and the jury's function in setting the limits of a defendant's liability if the term causation is used free from any notions of culpability.
It was argued that the suggested reform simply places old wine in new bottles. The more apt metaphor is that the proposal would put the wine of actual cause in one bottle and the whiskey of culpability in another bottle, and not mix the two as we now do under the proximate cause formula.
Under the theory expressed in the cases decided by this court the scope of defendant's liability is determined by the test of foreseeability. This test is applied not only in determining whether defendant is negligent, but also in determining whether his negligence is the proximate cause of the injury. Our cases generally describe the requirement of foreseeability for *528 negligence and for causation in the same terms, stating that it is not essential that the precise injury be foreseen.[6] If the court and jury apply exactly the same test to determine both proximate cause and negligence, the use of the proximate cause formula is repetitious, unnecessary and confusing.[7] Even if Green's proposal is rejected, the majority of the court should remove from our negligence law the anomaly of speaking of negligence and proximate cause as if they were distinct and yet treating them as if they were one and the same thing.
The question for the jury under the foreseeability test is whether a reasonable person in the position of the defendant would have foreseen that his conduct would probably have created the risk which plaintiff encountered and which caused his injury. The issue on appeal is narrower. We have the authority to decide only whether the trier of fact under the circumstances *529 of this case could reasonably find that the plaintiff's conduct in attempting to lift the cart from the hole was foreseeable.
In our adoption of the test of foreseeability for negligence and proximate cause we purport to draw the line between liability and non-liability upon the basis of fault. Defendant is at fault in failing to conduct himself in a manner to avoid the injury, if a reasonable man could have foreseen it. However, the difficulty in applying this test is that there is little more than intuition to guide one's judgment in deciding whether a risk or an injury is foreseeable.
The controversy in the leading treatises on torts as to what events are foreseeable illustrates the difficulty of arriving at a judicially serviceable formula for deciding whether the evidence is sufficient to go to the jury Which, I repeat, is our only function in these cases.[8] And it seems quite evident in some of the cases where the test of foreseeability is ostensibly applied that liability is not predicated upon foreseeability but rather that foreseeability is ascribed to defendant's conduct after it has been decided upon some other ground that defendant should be required to respond in damages for the injury.[9] In many cases *530 it is clearly recognized that defendant may be held liable for unforeseeable consequences.[10] Thus, applying the formula of causation, it has been recognized that defendant may be held liable where an intervening cause is a normal incident of the risk created, even though the intervening cause is not foreseeable.[11] There *531 are some who take the view that foreseeability is not a sine qua non of liability in accident cases.[12]
It is apparent in many of the cases involving actions brought by an employee against his employer that the employment relation is an important factor in determining the scope of defendant's liability. The rationale of these cases is usually expressed in terms of foreseeability and fault.[13]
*532 Defendant's liability in the case at bar can be measured within the framework of our theory of foreseeability. The jury would be warranted in finding that defendant could have foreseen that the failure to furnish adequate dunnage might have prompted plaintiff to act as he did. It is generally recognized that a defendant is not relieved of liability by an intervening act which is a common human response to the situation created by defendant's conduct.[14] Specifically, the jury could find that the plaintiff's attempt to lift the cart from the hole was a normal response of a workman under the circumstances and, therefore, was foreseeable.[15]
*533 It is possible to distinguish the case at bar from Zickrick v. Cooke, 197 Or 87, 252 P2d 185 (1953), relied upon by defendant. In the Zickrick case plaintiff was a stranger to defendant and to the enterprise in which defendant was engaged; in the instant case plaintiff was employed for the very purpose of furthering the enterprise in which defendant was engaged. In carrying out the work which plaintiff was hired to perform it was necessary for him to use the equipment which defendant was obligated to supply. Thus defendant placed himself in a relationship with plaintiff which imposed upon him the same kind of duty which he would have owed to his own employees; that is to furnish safe equipment and a safe place to work. Having this duty, the question then is whether defendant is negligent. It is not unreasonable to conclude that defendant could have reasonably foreseen the plaintiff's reaction to the situation created by the defective dunnage. This kind of relationship did not exist in the Zickrick case. The court held as a matter of law that defendant was not liable. It appears that the court based its decision upon the theory that defendant owed no duty to plaintiff. It was said that the defendant's "negligence had spent itself"; that plaintiff was injured "as a result of forces completely disassociated from the original negligence"; and that therefore the failure to use a third binder chain "could not have been the proximate cause of the injury for which this action was brought." Id. at 92, 252 P2d at 187-188. This seems to say that defendant's duty did not include the risk that a person would be injured while helping clear *534 the wreck caused by defendant's carelessness. The question of whether the defendant owes a duty to a person in the position of the plaintiff under such circumstances is not answered by saying that defendant's negligence "spent itself." Negligence is not something which can "run out of gas." It is a concept of liability. The proximate cause formula invites the use of such notions as continuity, remoteness and the like and diverts the court from a consideration of the factors which should determine whether there is a basis for liability under the circumstances of the particular case and who, as between court and jury, should decide the question.[16] I am of the opinion that the risk to which plaintiff in the Zickrick case was exposed fell within the ambit of defendant's duty and that the question of defendant's negligence should have been left to the jury.
Plaintiff attempts to bring the present case within the so-called rescue doctrine under which defendant is made liable to those injured in an effort to rescue a person or property imperiled by defendant's negligent conduct.[17] The doctrine does not quite reach the present case. There is a similarity in that defendant's *535 negligent conduct in each instance creates a situation generating in others a compulsion to act. However, the degree of compulsion is not the same in the two types of cases. The humanitarian instinct which strongly impels the rescuer to act is not present in the instant case.[18] If there was compulsion in the present case, it was only in the sense that the job which plaintiff was employed to perform had to be completed and the cart had to be extricated from the hole to complete the work.
Whatever formula we use to establish the limits of defendant's liability we cannot lose sight of the fact that we are simply making an allocation of the appropriate functions of the court and jury. "The sole function of a rule of limitation in these cases is to tell the court that it must not let the case go to the jury." Prosser, Selected Topics in the Law of Torts, p. 234 (1953). The jury should be given wide latitude in setting these limits of liability, whether it be done under a formula of negligence or causation. The differences of opinion evidenced in the adjudicated cases involving negligence or causation suggest that judicial standards for testing liability are probably no more scientific or stable than those employed by the jury. The comment in Jackson v. B. Lowenstein & Bros., 175 Tenn 535, 538, 136 SW2d 495 (1940) is appropriate:
The guiding principle in this class of cases is stated in Prosser, Torts (2d ed 1955), p. 282:
Is there a basis for "a reasonable difference of opinion" as to the foreseeability of plaintiff's conduct in lifting the cart and the consequent injuries arising from his effort? I believe that the question of defendant's liability, either under the formula of negligence *537 or causation, is for the trier of fact in the present case.
There are numerous cases in which liability has been imposed upon a defendant where the intervening act of a plaintiff or a third person was no more foreseeable than plaintiff's act in the instant case. Thus in Cooper v. Richland County, 76 So C 202, 56 SE 958 (1907), the plantiff's horse caught its foot in a hole in defendant's bridge and plaintiff was injured in attempting to extricate the horse when it fell upon him. It was held that a jury question was presented as to whether or not the defendant's negligence in failing to repair the bridge was the proximate cause of the injury. The court said:
The same result was reached on similar facts in Stickney v. Town of Maidstone, 30 Vt 738 (1858) and Page v. Bucksport, 64 Me 51 (1874).[20]
*538 More directly related to the present case are the adjudicated cases in which it is held that an employer is required to anticipate "that workmen who are furnished with a defective appliance may be expected to try to make it work." Prosser, Torts (2d ed 1955), p. 269.[21]
The parties stipulated that the only question was one of proximate cause. The trial court's conclusion is sustainable whether the case be so regarded or the issue treated solely as a question of defendant's negligence as we have suggested. Under either theory the plaintiff's conduct was a foreseeable event. It is a foreseeable intervening cause in the language of proximate cause or foreseeable conduct in the language of negligence.
*539 In the course of this opinion I have noted the confusion which is generated by the use of the language and formula of "proximate cause." I wish to make it clear that I am not suggesting that the use of such language in jury instructions would constitute reversible error or that pleadings cast in the traditional terms of proximate cause are legally defective. I simply wish to open the way for the trial bench and the bar in this state to use the less ambiguous language which is appropriate in clearly separating causation (actual cause) from liability (negligence) without fear that the adoption of such language would not be acceptable upon appeal. In aid of that objective it is appropriate, at the risk of some repetition, to summarize my conclusions in this regard and to indicate briefly how they relate to present practice.
As I have already indicated, the law of causation under existing practice is so ill-defined and confused that it offers little or no aid either to the courts or to the juries in the solution of the problems of liability in the negligence cases. The principal source of confusion is the treatment of causation, both as a factual concept, i.e., as to whether defendant's conduct is physically connected with the injury, and as a liability concept, i.e., as to whether, under the circumstances, the defendant should be held liable for the injury he caused. In present practice these two concepts are fused together in one expression "proximate cause" and as a consequence both concepts become confused. To avoid this confusion I have separated the issue of factual causation from all other questions involved in the case and avoided the use of the term "causation" in any other sense. The issue of factual cause involves only the question of whether defendant's conduct was a substantial factor in producing the injury of which *540 plaintiff complains. That is to be regarded as a pure question of fact. It calls for no judgment as to whether defendant is to be held liable for what he factually caused.[22] In the typical automobile collision case the causal relation in this sense is clear defendant's automobile collides with plaintiff's automobile and as a result plaintiff is injured. Where the fact of collision is established the real issue is not whether defendant caused the injury but rather whether defendant should be held liable for what was admittedly caused by him. As I have already stated, this is a question of evaluating defendant's conduct to determine whether he should be liable, an inquiry which should not be clouded by casting it in terms of "proximate cause" or any other kind of cause. If the fact of cause and effect is not in dispute, the language of causation should vanish from the case. In such case an instruction on the issue only serves to confuse the jury as there is no issue on the fact of actual causation. Obviously, if there is evidence to support the contention that defendant's automobile was not involved in the accident or that it was involved but that its physical involvement was not a substantial factor in producing the injury then, of course, the question would be one for submission to the jury. Thus, if there is evidence that defendant's vehicle was traveling at such a slow speed that the impact could not have caused the type of injury of which plaintiff complains, the jury could find that defendant's conduct was not a substantial factor in producing the injury.
When the question of factual cause is disposed of, the only remaining question is one of defendant's liability. The initial question of liability may be solely for the court. Thus, if plaintiff complains that she *541 suffered nervous shock as a result of defendant's failure to exercise care the court must decide whether, as a matter of policy, recovery should be allowed for that kind of injury. That is a preliminary question of whether the defendant owed any duty whatsoever to the plaintiff with respect to the type of harm suffered by the plaintiff, i.e., in the example used, injury by way of nervous shock. In most cases there is no such question of duty presented. If the duty issue is resolved by the court in favor of the plaintiff, the sole remaining question is whether defendant was negligent. If there is no substantial evidence of negligence, the court will, of course, withhold the case from the jury. If there is evidence of negligence, that issue must be decided by the jury. The form of instruction which guides the jury's deliberation on this issue of negligence is well known to the bench and bar.[23]
Thus there is presented to the jury only two issues: (1) was defendant's conduct a substantial factor in physically producing the injury and (2) was defendant negligent? No further inquiry need be made by the jury as to whether defendant's conduct or negligence *542 was a "proximate cause" of the injury. To the extent that this latter inquiry on "proximate cause" seeks to determine whether defendant actually caused the injury, an instruction relating to actual cause is adequate. And to the extent that the inquiry on "proximate cause" calls for a consideration of defendant's liability, that determination can adequately be made under an instruction which calls upon the jury to decide whether defendant was negligent.[24]
In the case at bar it is argued that plaintiff's conduct was the "proximate cause" of his injury (and that defendant's conduct was not the "proximate cause"). The plaintiff's conduct may be a cause in fact of the injury which he suffers, as it was in the instant case. If plaintiff's conduct is clearly a substantial factor in producing the injury (as it certainly was in the case at bar), no issue of the causal relation between plaintiff's conduct and the injury is presented and no instruction on causation should be given. Plaintiff's contributory negligence may be a legitimate issue, but this is a question distinct from causation.[25] When it is asserted that plaintiff's negligence is an intervening cause, defendant may be contending that (1) plaintiff's conduct is the only actual cause of his injury, meaning that defendant's conduct was not a substantial factor in actually causing the injury; or (2) that defendant was not negligent because a reasonably prudent person in his position could not reasonably have foreseen that plaintiff would act as he *543 did; or (3) that even if it is conceded that defendant was negligent, plaintiff was contributorily negligent. This confusion can be obviated, or at least minimized, by eliminating all language of "proximate cause" from the inquiry as to defendant's negligence.
The negligence instruction relating to defendant's conduct can be phrased free from causation language to call for the determination of whether plaintiff's conduct was a reasonably foreseeable event. It may inform the jury that they may find that defendant was negligent if he, as an ordinary prudent person, should have foreseen plaintiff's conduct under the circumstances but failed to exercise reasonable care to avoid the injury. The same is true where the alleged "intervening" conduct of third persons is involved. If the conduct of two or more persons contributed to plaintiff's injury, the issue of factual cause must be resolved if it is present. The conduct of each of the persons may be a substantial factor in bringing about the injury, or the conduct of only one of them may be the sole cause. The resolution of that issue of fact should not be confused with the separate question of the liability of the person or persons causing the harm. If the conduct of one of the persons is found not to be a substantial factor in producing the injury, he is, of course, free from liability. If the conduct of both persons contributed substantially to the injury, either one, or both may be negligent. It is not necessary to inject ideas of causation into the consideration of which of these persons were negligent.
All of the questions which might arise in instructing the jury without employing language of proximate cause cannot now be anticipated. Whatever difficulty may temporarily be experienced in making the transition suggested by this opinion will be well worth the *544 ultimate good which will result from eradicating the vestigial language of proximate cause from our law.
The emphasis which I have placed upon the problems of instructing the jury should not draw attention away from the more basic problems which face both the trial and appellate judges in negligence cases. Those problems center around the respective functions of the court and jury. A considerable part of the confusion which has attended the treatment of negligence cases, both at the trial and appellate levels, is traceable to the failure to examine carefully the appropriate parts which the courts and the jury should play in deciding the questions of cause and liability. We have not always made clear, in holding that a case should not go to the jury, whether we are excluding the jury because there was no causal connection, or no duty, or no evidence of negligence. To understand what are the proper spheres of court and jury activity requires careful study. It is not an area in which judicial experience in sitting on cases or reviewing them on appeal alone can solve the problems which are constantly presented. Fortunately, there are excellent sources to which we can turn for instruction.[26] Of these, the work of Leon Green most closely relates to the position which I have taken.[27]
In the case at bar there is no issue of actual causation involved. The sole question is whether defendant was negligent. The trial court concluded that defendant's negligence was a proximate cause of the plaintiff's injury, or, stated differently, that plaintiff's conduct *545 was not an intervening cause. This can be regarded as a conclusion by the trier of fact that plaintiff's conduct was a foreseeable event and that, therefore, defendant was negligent. The evidence supports this conclusion. Consequently, I agree with the majority that the judgment should be affirmed.
GOODWIN, J., concurs in this opinion.
DENECKE, J., specially concurring.
I concur in the majority opinion. However, I concur in that part of Mr. Justice O'CONNELL'S opinion pointing out that the terminology of "proximate cause" is misleading and, therefore, on occasion is responsible for erroneous results. Mr. Justice O'CONNELL'S remedy is to abandon the "traditional proximate cause" formula. I am unwilling at this time to do so because I am uncertain whether or not I fully enough comprehend the formula Mr. Justice O'CONNELL proposes so as to visualize the results that would follow from its application to future cases which will be before this court.
Therefore, I would examine future cases of this type with the knowledge that the language of the proximate cause doctrine is deceiving. I would likewise attempt to determine the result which would follow in such cases from the application of the proposal advocated by Mr. Justice O'CONNELL. By such a procedure I would hope to determine whether or not Mr. Justice O'CONNELL'S proposal is preferable to what we now have. It is entirely conceivable that some modification of the present law or the proposed law will be found ultimately to be the most preferable.
PERRY, J., dissenting.
I am unable to agree with the majority. In my opinion the negligence of the defendant had come to *546 rest insofar as the breakage of the dunnage is concerned. After the dunnage broke, it is true, a new situation was created, out of which an injury might occur, but no more so than in attempting to carry out any work of lifting.
The attempt to distinguish the case of Zickrick v. Cooke et al., 197 Or 87, 252 P2d 185, on the basis that in that case the plaintiff was a mere volunteer does not answer the underlying principle of law set forth therein, which is, that negligence, having come to rest, the prior negligence is not a proximate cause in producing the subsequent injury.
The allegations and the evidence in this case disclose that the defendant and others volunteered to lift the truck and its 1,800 pound load. The same situation would have existed had these same men attempted to lift the load whether the dunnage was broken or not.
The plaintiff has relied upon the doctrine that danger invites rescue, but that doctrine only applies in "response to fear or emotional disturbance" caused by a negligent defendant. 2 Restatement of Torts, Causation, § 444, page 1191.
For the above reasons, I dissent.
[1] Amicus curiae briefs were prepared by James H. Clarke and William M. Dale, Jr.
[2] The court then listed the following references: "For Leon Green's point of view referred to above see Green, The Causal Relation Issue in Negligence Law, 60 Mich L Rev 543; Green, Foreseeability in Negligence Law, 61 Colum L Rev 1401. Green has written on this point in other legal periodicals from time to time and has also developed the thesis in a book, Rationale of Proximate Cause. See, also, Green, Judge and Jury. Related references are Malone, Ruminations on Cause-In-Fact, 9 Stan L Rev 60; Gregory, Proximate Cause in Negligence A Retreat from Rationalization, 6 U Chi L Rev 39; Prosser, `Palsgraf Revisited' in Selected Topics on the Law of Torts, 191; Hart and Honore, Causation in the Law (1959); Becht and Miller, The Test of Factual Causation in Negligence and Strict Liability Cases (1961)."
[3] Plaintiff cites Lazzari v. States Marine Corporation, 220 Or 379, 349 P2d 857 (1960), a Jones Act case, in support of this proposition.
[4] It has been asserted that the function of deciding whether particular conduct was a substantial factor in bringing about the result also involves policy formulation. Malone, Ruminations on Cause-In-Fact, 9 Stan L Rev 60 (1956).
[5] That it is not a question of causation, see Prosser, Torts 280 (2d ed 1955):
"It must be apparent that, so far as the problem of intervening causes is concerned, the question is one of the defendant's responsibility for subsequent changes in the situation he has created, brought about by new and independent factors. This is not a question of causation; in all of the cases referred to above, the causal connection between the defendant's conduct and the harm resulting is quite clear. It is a question of negligence of the extent of the defendant's obligation. The decided cases indicate that he will be held responsible for intervening forces which he could have foreseen, or for those which are normal incidents of the risk created."
See also, 2 Harper & James, Torts § 20.5, pp. 1137, 1143 (1956).
[6] Herring v. Springbrook Packing Company Cooperative, 208 Or 191, 299 P2d 604, 300 P2d 473 (1956); Stout v. Madden & Williams, 208 Or 294, 300 P2d 461 (1956); Shelton v. Lowell et al, 196 Or 430, 249 P2d 958 (1952); Schweiger et ux v. Solbeck, 191 Or 454, 230 P2d 175, 29 ALR2d 435 (1951); Arneil v. Schnitzer, 173 Or 179, 144 P2d 707 (1944); Ludwig v. Zidell et al, 167 Or 488, 118 P2d 1073 (1941); Aune v. Oregon Trunk Railway, 151 Or 622, 51 P2d 663 (1935); Mollencop v. City of Salem, 139 Or 137, 8 P2d 783, 83 ALR 315 (1932); Brady v. Oregon Lumber Co., 117 Or 188, 243 P 96, 118 Or 15, 245 P 732, 45 ALR 812 (1926); Voshall v. Northern Pac. Terminal Co., 116 Or 237, 240 P 891 (1925); Miami Quarry Co. v. Seaborg Packing Co., 103 Or 362, 204 P 492 (1922); Poole v. Tilford, 99 Or 585, 195 P 1114 (1921); Chambers v. Everding & Farrell, 71 Or 521, 136 P 885, 143 P 616 (1914); Hartvig v. N.P.L. Co., 19 Or 522, 25 P 358 (1890). Cf., Danner v. Arnsberg et al, 227 Or 420, 362 P2d 758 (1961).
In some jurisdictions negligence is described in terms of the foreseeability of some injury as contrasted with the foreseeability of the precise injury in causation. 2 Harper & James, Torts § 20.5, pp. 1136-37 (1956).
[7] Green, Rationale of Proximate Cause (1927) p. 77, and passim; Green, Proximate Cause in Texas Negligence Law, 28 Tex L Rev 755 (1950).
[8] For example, see 2 Harper & James, Torts § 18.2, p. 1042, n. 38 (1956) disagreeing with Prosser as to who are foreseeable plaintiffs, and see 2 Ibid, § 20.5, p. 1134, 1135, 1140, n. 22, disagreeing with Goodhart and Seavey as to the foreseeability of the event in In re Polemis & Furness, Withy & Co., [1921] 3 K B 560.
[9] Gregory, Proximate Cause in Negligence A Retreat From "Rationalization," 6 U Chi L Rev 39, 50 (1938).
It has been observed that the fact that defendant causes the injury in the conduct of a commercial enterprise is commonly considered in fixing the limits of his liability. "As has been pointed out before, the defendants in these cases of `proximate cause' are in large measure railroads, public utilities, municipal corporations, industrial enterprises, automobile owners and others who are in a position, through rates, taxes or liability insurance, to pass the inevitable damages resulting from their activities on to the general public, or at least to distribute them over a relatively large group. In the decision whether the particular loss is to be borne by such a defendant, originally at fault if only in a lesser way, or by the innocent and helpless plaintiff, it cannot be supposed that this factor will be entirely disregarded by the courts, nor can it be expected that all defendants and all losses will be treated by all courts according to any one formula or rule." Prosser, Selected Topics from the Law of Torts, pp. 238-239 (1953).
See 2 Harper & James, Torts § 20.4, p. 1133 (1956); Loss-Shifting and Quasi-Negligence; A New Interpretation of the Palsgraf Case, 8 U Chi L Rev 729, 732-737 (1941); Gregory, Trespass to Negligence to Absolute Liability, 37 Va L Rev 359 (1951).
[10] Gillilan v. Portland Crematorium Assn., 120 Or 286, 249 P 627 (1927) (marble vault shutter in defendant's mausoleum fell on child; mother died attempting to lift it off); Voshall v. Northern Pac. Terminal Co., 116 Or 237, 240 P 891 (1921) (plaintiff, using oxalic acid polish as part of his job, suffered lung, bronchial and heart diseases which did not affect other persons using the polish). Cf., Baker v. State Industrial Acc. Com., 128 Or 369, 274 P 905 (1929) (employer liable for death during cancer operation because prior to operation plaintiff had been weakened as a result of an injury to his collarbone suffered while on the job). See, Prosser, Torts § 48 (2d ed 1955) pp. 258-266; 2 Harper & James, Torts § 20.5, pp. 1139, 1141 (1956).
[11] Arneil v. Schnitzer, 173 Or 179, 144 P2d 707 (1944) (defendant removed all the fire-fighting equipment from a lumber camp and left piles of debris lying about and a fire was started by a cigarette dropped by a hobo; defendant held liable for damages to adjoining property); Sullivan v. Mount. States Power Co., 139 Or 282, 9 P2d 1038 (1932) (defendant electric company held liable when wind blew a tree on electric wires causing a fire which spread to plaintiff's property); Johnson v. Hoffman et al, 132 Or 46, 284 P 567 (1930) (defendant left a ladder leaning on a marquee over a sidewalk and a third person caught his overcoat on a nail in the ladder and pulled it down on the plaintiff; defendant held liable); Miami Quarry Co. v. Seaborg Packing Co., 103 Or 362, 204 P 492 (1922) (a sunken barge left on the beach was broken up in a storm which blew a portion of the barge into plaintiff's jetty; defendant held liable because it had fastened the barge with light line); Poole v. Tilford, 99 Or 585, 195 P 1114 (1921) (defendant owned building with defective elevator door; held liable when third person moved elevator leaving door open and plaintiff employee stepped into the shaft); Ahern v. Oregon Telephone Company, 24 Or 276, 33 P 403, 35 P 549, 22 LRA 635 (1893) (telephone company held liable for electrocution of plaintiff by loose wire; wire had been moved by electric company from one telephone pole to another and placed in contact with charged electric wire). See, Prosser, Torts § 49 (2d ed 1955) pp. 278-280. Contra, Carpenter, Workable Rules for Determining Proximate Cause, 20 Calif L Rev 229, 396, 471 at 516 (1932).
[12] Ehrenzweig, Negligence Without Fault (1951) (liability predicated upon whether the damages are typical in the enterprise carried on by the defendant); Workable Rules for Determining Proximate Cause, 20 Calif L Rev 229, 396 (1932) (proposal to set up a set of fixed and detailed rules to cover all cases); Legal Cause, 72 Penn L Rev 211, 343 (1924) (proximate cause is a justly attachable cause determined by the "average sense of justice"); Smith, Legal Cause in Action of Tort, 25 Harv L Rev 103, 223, 229 (1911) (defendant's act must be a substantial factor in producing damage).
[13] It has been asserted that liability in this class of cases is imposed not on the ground of foreseeability, but for the reason that it is deemed proper to make the enterprise bear the loss. Ehrenzweig, Negligence Without Fault (1951); Ehrenzweig, Assurance Oblige A Comparative Study, 1950 Law & Contem Prob 445; Malone, This Brave New World A Review of Negligence Without Fault, 25 So Calif L Rev 14 (1951); Loss-Shifting and Quasi-Negligence: A New Interpretation of the Palsgraf Case, 8 U Chi L Rev 729 (1941).
The theory of enterprise liability is, of course, present in the cases involving vicarious liability. See, 2 Harper & James, Torts § 26.7, pp. 1374-1382 (1956); Steffen, Independent Contractor and The Good Life, 2 U Chi L Rev 501, 507 (1935); Douglas, Vicarious Liability and Administration of Risk, 38 Yale L J 584 (1929); Note, 28 Or L Rev 83 (1948).
[14] See, Shelton v. Lowell et al, 196 Or 430, 249 P2d 958 (1952); Mollencop v. City of Salem, 139 Or 137, 8 P2d 783, 83 ALR 315 (1932); Gillilan v. Portland Crematorium Assn., 120 Or 286, 249 P 627 (1927); Salmi v. Columbia & N.R.R. Co., 75 Or 200, 146 P 819, LRA 1915D, 834 (1915); 2 Restatement, Torts § 443 (1934); 2 Harper & James, Torts § 16.12, pp. 940-942 (1956); Hart and Honore, Causation in the Law (1959), pp. 139-140; Prosser, Torts § 49 (2d ed 1955) p. 271.
[15] Ludwig v. Zidell et al, 167 Or 488, 118 P2d 1073 (1941) (jury could find that plaintiff, while operating a pair of motorized metal shears, could be expected to reach into the machinery to pull out a small piece of metal which threatened harm to the machine); Walsh v. Oregon Ry. & Navigation Co., 10 Or 250 (1882) (jury was allowed to find that it could be expected that in response to strange noise plaintiff would stick his head out of the window of moving train); Somogyi v. Cincinnati N.O. & T.P. Ry. Co., 101 F2d 480 (6th Cir 1939) (plaintiff was hit on the head by a pulley and voluntarily backed into a machine and fractured his skull; held, the jury could find that this was a "normal reaction to the stimulation of the situation"); Erie R. Co. v. Caldwell, 264 Fed 947 (6th Cir 1920) (in order to set brakes plaintiff employee of defendant railroad company jumped on a moving railroad car which had become separated because of a defective draw bar; defendant held liable); Chicago & A. Ry. Co. v. Walters, 217 Ill 87, 75 NE 441 (1905) (plaintiff lost his hand while frantically trying to manually open a defective coupling between two converging railroad cars; held, case properly submitted to the jury); Arko v. Shenango Furnace Co., 107 Minn 220, 119 NW 789 (1909) (plaintiff attempted to stop loaded ore car when brakes failed by thrusting pinch bar under the wheel; held, defendant employer liable as he should have anticipated a response of this sort).
[16] For a discussion of the factors which the court may be called upon to consider see Green, Duties, Risks, Causation Doctrines, 41 Tex L Rev 42 (1962).
[17] Opinion of Judge Cardozo, Wagner v. International Ry. Co., 232 NY 176, 133 NE 437, 19 ALR 1 (1921); Annotations: (attempting to save life) 19 ALR 4, 158 ALR 199; (attempting to save property) 64 ALR 515; (attempting to save life and property) 166 ALR 752; (servant attempting to save property) 61 ALR 579; 2 Restatement, Torts § 444, § 290, comment k (1934); 2 Harper & James, Torts § 16.12, p. 940 (1956); Prosser, Torts § 49 (2d ed 1955) pp. 271-272; 32 Cornell L Q 605 (1947); 43 Mich L Rev 980 (1945); 11 Mo L Rev 317 (1946); 3 Okla L Rev 476 (1950); 25 Tex L Rev 688 (1947); 28 Wash U L Q 296 (1943). Cf., Jamerson, Adm'x. v. Witt, Executrix, 215 Or 227, 332 P2d 1054 (1959); Gillilan v. Portland Crematorium Assn., 120 Or 286, 249 P 627 (1927).
[18] Barnett v. Des Moines Electric Co., 10 F2d 111 (8th Cir 1925) (no liability for injury to passerby attempting to remove high voltage wire from street because no danger present to anyone); Illinois Central Railroad Co. v. Oswald, 338 Ill 270, 170 NE 247 (1930) (rescue doctrine held inapplicable to plaintiff who went between two wrecked cars not to offer aid but merely out of curiosity). See also, Devine v. Pfaelzer, 277 Ill 255, 115 NE 126 (1917); Hart and Honore, Causation in the Law, p. 139 (1959).
[19] See also, Rose v. Portland Traction Co., 219 Or 1, 341 P2d 125, 346 P2d 375 (1959); Celorie v. Roberts Bros., Inc., 202 Or 671, 276 P2d 416 (1954); Hicklin v. Anders, 201 Or 128, 253 P2d 897, 269 P2d 521 (1954); Bevin v. O-W R & N Co., 136 Or 18, 298 P 204 (1931), cert. denied, 284 US 639, 52 S Ct 21, 76 L Ed 543; Gillilan v. Portland Crematorium Assn., 120 Or 286, 249 P 627 (1927); Voshall v. Northern Pac. Terminal Co., 116 Or 237, 240 P 891 (1925); Buchanan v. Lewis A. Hicks Co., 66 Or 503, 133 P 780, 134 P 1191 (1913); Hartvig v. N P L Co., 19 Or 522, 25 P 358 (1890). Cf., Wintersteen v. Semler, 197 Or 601, 250 P2d 420, 255 P2d 138 (1953); Shelton v. Lowell et al, 196 Or 430, 249 P2d 958 (1952); Kukacka v. Rock, 154 Or 542, 61 P2d 297 (1936).
[20] See also, Herman v. Markham Air Rifle Co., 258 Fed 475 (E.D. Mich 1918) (defendant manufacturer sold loaded air rifle to wholesaler who sold it to retailer; plaintiff, one of the retailer's clerks, was injured when a prospective customer pulled the trigger); Trapp v. Standard Oil Co., 176 Kan 39, 269 P2d 469 (1954) (firemen, after having been called by defendant to wash away gasoline which defendant had spilled in the street, washed down the street and then touched a lighter to the street to see how effective the washing had been; in the resulting fire plaintiff's auto was damaged); Lynch v. Fisher, 41 So2d 692 (La 1949) (negligence of truck driver in colliding with car of motorist held proximate cause of injury resulting when rescuer of motorist was shot by the motorist who had become temporarily deranged as a result of accident); Hines v. Morrow, 236 SW 183 (Tex Civ App 1921) (plaintiff, in attempting to extricate truck from hole left in road by defendant, broke his sound leg when his wooden leg was trapped); Shafer v. Keeley Ice Cream Co., 65 Utah 46, 234 P 300, 38 ALR 1523 (1925) (plaintiff injured by large crowd attracted by float which defendant had sponsored in parade).
[21] See also, Blaine v. Ross Lbr. Co., 224 Or 227, 355 P2d 461 (1960) (in absence of defendant's winch operator two logging truck drivers attempted to use a log loading winch not equipped with safety catch); Moen v. Aitken, 127 Or 246, 271 P 730 (1928) (plaintiff fell from plank used in carrying on work in elevator shaft, scaffolding not having been provided by employer); Buchanan v. Lewis A. Hicks Co., 66 Or 503, 133 P 780, 134 P 1191 (1913) (plaintiff cut thumb when using power saw not equipped with a guard); Manning v. Portland Ship Building Co., 52 Or 101, 96 P 545 (1908) (workman injured when attempting to use defective tongs provided to hold chisel); Smith v. Shevlin-Hixon Co., 157 F2d 51 (9th Cir 1946); Phillabaum v. Lake Erie & W.R. Co., 315 Ill 131, 145 NE 806 (1924) (plaintiff injured while standing between two railroad cars attempting to adjust a coupler which failed to work); Liberty Mutual Ins. Co. v. Great Northern Ry. Co., 174 Minn 466, 219 NW 755 (1928) (plaintiff injured when he substituted a wrench for a missing ratchet device with which to open dump door of a coal car); Myers v. Little Church by the Side of the Road, 37 Wash2d 897, 227 P2d 165 (1951) (hotel clerk, elevator operator, injured while attempting to run defective elevator).
[22] See again footnote 4 supra.
[23] Oregon Jury Instructions for Civil Cases, No. 10.02, Oregon State Bar (1962) reads as follows:
"In general it is the duty of every person in our society to use reasonable care in order to avoid damage to himself or to another person in any situation in which it could be reasonably anticipated that a failure to use such care might result in such damage.
"Reasonable care is that care which persons of ordinary prudence exercise in the management of their own affairs in order to avoid injury to themselves or others.
"Common law negligence, therefore, is the doing of some act which a reasonably prudent person would not do or the failure to do something which a reasonably prudent person would do, under the same or similar circumstances.
"The care should be in keeping with dangers, apparent or reasonably to be expected at the time and place in question, and not in the light of after effects or hindsight."
[24] For a criticism of the traditional Oregon instruction on proximate cause see the specially concurring opinion of Goodwin, J. in Stoneburner v. Greyhound Corp., 232 Or 567, 375 P2d 812, 816 (1962).
[25] Causation is frequently injected into the contributory negligence issue. See, for example, 2 Harper & James § 22.2, pp. 1199-1201 (1956).
[26] 2 Harper & James §§ 15.1-15.5, 16.10, 17.1, 17.2, 18.8 (1956); Prosser, Torts pp. 191-196, 281 (2d ed 1955).
[27] Green, Judge and Jury (1930); Green, Rationale of Proximate Cause pp. 66-72 (1927); Green, Foreseeability in Negligence Law, 61 Colum L Rev 1401 (1961); Green, The Causal Relation Issue in Negligence Law, 60 Mich L Rev 543 (1961). | 1557ce7318058c38290d2f559274a57051452f330ab0073d84cf8794716d7837 | 1963-03-13T00:00:00Z |
b488c658-f875-4437-847f-c40a8050ebe7 | Johnston v. Gilbert | 234 Or. 350, 382 P.2d 87 | null | oregon | Oregon Supreme Court | Reversed in part, and remanded May 29, 1963.
*351 Norman K. Winslow, Salem, argued the cause and submitted briefs for appellants.
Philip Hayter, Dallas, argued the cause for respondents. On the brief were Hayter & Shetterly, Dallas.
Before McALLISTER, Chief Justice, and ROSSMAN, SLOAN, GOODWIN and LUSK, Justices.
REVERSED IN PART, AND REMANDED.
McALLISTER, C.J.
This case involves a land sale contract between the plaintiffs as vendors and the defendants as purchasers. The lower court decreed that the contract had been rescinded by action of the parties, and no appeal was taken from that part of the decree. Plaintiffs have appealed, however, from another part of the decree claiming that the court erred in failing to restore them to the status quo.
*352 The only question involved is whether the lower court should have decreed restitution by offsetting the amount paid on the purchase price against the reasonable rental value of the property, and entering a judgment in favor of the parties to whom the difference, if any, was owing.
It appears that on February 1, 1956, the plaintiffs, as vendors, entered into an agreement to sell to the defendants, as purchasers, a residence in Polk county for the sum of $17,500, of which $500 was paid down and the balance was payable at the rate of $90 per month, including interest. The contract contained no acceleration clause.
1, 2. In July, 1960, defendants were in default in the payment of seven monthly instalments and certain water charges. The plaintiffs on July 14, 1960 filed in the circuit court for Polk county what the complaint designated as a suit in equity praying that the rights of the defendants in and to the real property be forfeited.[1] Defendants demurred to the complaint and then elected to treat the filing of the complaint as a wrongful repudiation by plaintiffs of the contract, and to effect a rescission of the contract by acquiescing in such repudiation.[2] Defendants, having already *353 surrendered possession, evidenced their election to rescind by tendering plaintifs a deed to the property.
Defendants' demurrer to the original complaint was sustained and plaintiffs then filed an amended complaint praying for strict foreclosure of the contract. A demurrer to that complaint was also sustained and plaintiffs filed a second amended complaint on the law side of the court demanding judgment for the unpaid instalments of the purchase price. To that complaint defendants filed an answer, including the equitable defense that the contract had been rescinded by the wrongful repudiation of the contract by plaintiffs and the acquiescence therein by the defendants. Instead of making a general offer of restitution the defendants complicated the problem by praying that all moneys which they had paid on the contract, and all improvements made to the property by them, be forfeited to the plaintiffs as liquidated damages and as rental for said premises. The plaintiffs filed a reply in which they alleged in effect that defendants should be estopped from claiming a rescission.
The trial court found that plaintiffs' attempt to declare a forfeiture constituted a wrongful repudiation of the contract, and that defendants' acquiescence in said repudiation had resulted in a rescission of the contract by action of the parties. As stated above, no appeal was taken from that portion of the decree declaring the contract rescinded.
3, 4. After decreeing that the contract had been rescinded by action of the parties, the trial court should have provided for the restoration of the status quo.[3]*354 This should have been accomplished in this case by offsetting the amount paid on the purchase price against the reasonable rental value of the premises while in the possession of the defendants and by entering a judgment in favor of the parties to whom the difference, if any, was owing.[4]
5, 6. Instead of ordering restitution in accordance with well established principles, the trial court was apparently led into error by the allegations of defendants' answer, and entered a decree providing that all payments made by defendants pursuant to the contract "are hereby declared to have been forfeited by the defendants to the plaintiffs." In entering such a decree the lower court erred. Forfeiture and rescission are incompatible they will not mix. The concomitant of rescission is restitution, not forfeiture. Where there has been, as here, rescission by conduct of the parties, a purchaser is entitled to restitution of the amount paid on the purchase price less the reasonable rental value of the premises while he has had possession.
7-9. Although defendants have not appealed and may have waived their right to restiution, the plaintiffs have not waived their right to restoration of the status quo. Restitution is an integral part of rescission and defendants cannot have the benefits of rescission without assuming its responsibilities.[5] If the payments on the purchase price of the premises do not equal the rental value of the property, as may be possible in this case, plaintiffs are entitled to recover the difference. *355 If on the other hand, the amount paid on the purchase price exceeds the rental value of the property, the defendants are entitled to a judgment for the difference.
That part of the decree providing for the forfeiture of the amounts paid by the defendants is reversed and the cause remanded with instructions to take such further testimony as the parties may offer on the issue of restitution, and to enter a supplemental decree not inconsistent herewith.
Neither plaintiffs nor defendants shall recover costs in this court.
[1] Equity "will never interpose to declare a forfeiture, that being a matter, if insisted upon, entirely for the law side of the court." Flanagan v. Great Cent. Land Co., 45 Or 335, 342, 77 P 485; Zumstein v. Stockton, 199 Or 633, 642, 264 P2d 455; Howard v. Jackson, 213 Or 447, 459, 324 P2d 757.
[2] "If the vendor wrongfully attempts to declare a forfeiture the purchaser may treat such action as a repudiation of the contract by the vendor and elect to rescind." Macomber v. Waxbom, 213 Or 412, 417, 325 P2d 253; Morrison v. Kandler, 215 Or 489, 499, 334 P2d 459, and cases there cited. Although in Morrison v. Kandler, supra, we referred to such a rescission as a "mutual" rescission, it is more properly described as a rescission by conduct of the parties.
[3] It is a firmly established general rule that restoration of the status quo is an essential element of rescission. Frink v. Thomas, 20 Or 265, 25 P 717; Howard v. Jackson, 213 Or 447, 459, 324 P2d 757, and earlier cases there cited; 3 Black, Rescission and Cancellation (2d ed) 1482, § 616; 12 Am Jur Contracts 1031 § 451.
[4] For the normal mode of effecting restitution when land sale contracts are rescinded see, Share v. Williams, 204 Or 664, 675, 277 P2d 775, 285 P2d 523; Olson v. Pixler, 138 Or 250, 253, 6 P2d 23.
[5] Mascall v. Erikson, 131 Or 509, 515, 283 P 2; 12 Am Jur Contracts 1031, § 451; 3 Black, Rescission and Cancellation (2d ed) 1485, § 617. | 20d798b8d8a6f189ce3027fa371b19c18fd1cccbcff81d017b2227a67f0bc2e5 | 1963-05-29T00:00:00Z |
46dcdcf2-04d6-46e0-8461-85b50d34a43a | Rich v. Cooper | 234 Or. 300, 380 P.2d 613 | null | oregon | Oregon Supreme Court | Affirmed April 10, 1963.
Petition for rehearing denied May 21, 1963.
*302 Charles A. Phipps, The Dalles, argued the cause for appellant. With him on the briefs were Phipps, Phipps & Dunn.
Thomas H. Tongue, Portland, argued the cause for respondent. With him on the brief were William M. Dale, Jr., Charles J. Strader and Hicks, Davis, Tongue & Dale, Portland.
Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, GOODWIN and LUSK, Justices.
AFFIRMED.
O'CONNELL, J.
This is an action for assault and battery alleged to have been committed by defendant, a police officer, in arresting plaintiff. The jury returned a verdict for defendant. Judgment was entered on the verdict. Upon plaintiff's motion the trial court granted a new trial on the ground that the court erred in instructing the jury that plaintiff's character, reputation and habit for turbulence and aggressiveness could be considered *303 on the question of whether plaintiff forcibly resisted defendant's efforts to arrest him. Defendant appeals from the order granting a new trial.
The facts are as follows. Defendant, a police officer of the city of Hood River, observed plaintiff run through a stop sign at one of the street intersections in Hood River at about 7:25 p.m. Defendant pursued plaintiff, sounding his siren and flashing his red light. Plaintiff, being near his home at the time, pulled over to the curb in front of his house. Defendant parked the police car behind plaintiff's automobile, got out, and, after conversing with plaintiff for awhile, concluded that plaintiff had been drinking. Defendant testified that he asked plaintiff to walk a line in the sidewalk in front of the steps leading up to plaintiff's house and plaintiff was not able to walk in a straight line. Defendant testified that he informed plaintiff that he was under arrest for driving under the influence of alcohol; that he took plaintiff by the arm and propelled him eastwardly along the sidewalk and across a parking area down to the curb near the rear door of the police car; that he attempted to put plaintiff in the back seat of the police car but plaintiff resisted, whereupon defendant struck plaintiff three times on the head with a "sap." Defendant also averred that plaintiff then lunged at him and in the struggle that followed defendant forced plaintiff face down on the pavement of a driveway near the police car. In the course of the struggle plaintiff dropped some light bulbs which he was carrying. One shattered on the driveway. According to defendant's version of the episode he eventually got plaintiff into the police car and drove him to the police station where it was discovered that plaintiff's face was covered with blood. Defendant took plaintiff to the hospital for treatment. *304 Thereafter, they returned to the police station where plaintiff was "booked" on a charge of driving under the influence of liquor. There was evidence that just prior to the incident plaintiff had drunk several vodka highballs at the Hood River Elks Club. After leaving the Elks Club plaintiff stopped at the liquor store and purchased a fifth of vodka.
Plaintiff denied that he was under the influence of alcohol when he left the Elks Club. One witness supported this assertion and two witnesses were of the opinion that he was not under the influence immediately after the arrest. Plaintiff contends that defendant never told him that he was under arrest; that defendant ordered plaintiff to walk a straight line and that the latter asked why he should have to do so because he was home. Plaintiff testified that when defendant told him to get into the police car plaintiff said, "Let's talk this over. What is the matter with you?" At this point, defendant allegedly hit him three times on the head with the "sap" without provocation. That was the last thing that plaintiff remembered until he found himself face downward on the street with his hands over his head as defendant beat him on his head with the "sap." Plaintiff testified that he said, "Jesus Christ, Mister, cut it out," and that he did not remember anything thereafter until he regained consciousness in the hospital.
Plaintiff moved for a new trial, assigning five separate grounds in support of the motion. The first of these grounds is that the court erred in giving the following instruction:
Defendant contends that the instruction correctly stated the applicable law.
1-3. Generally, evidence of a person's character is not admissible to prove that he engaged in certain conduct on a particular occasion.[1] To this general rule there are certain exceptions, one of which allows such evidence to be introduced in an action for assault and battery where self-defense is pleaded by the defendant. When defendant has laid a foundation for his claim of self-defense, he may introduce evidence of the plaintiff's reputation for turbulence and violence for the purpose of showing that the plaintiff was the first aggressor.[2]
Under the foregoing circumstances the evidence of the plaintiff's reputation is admissible even though the defendant had no knowledge of it at the time of the assault. Defendant contends that a police officer who injures a person resisting arrest occupies the same position as a defendant who claims self-defense. It is argued that the privilege of a private citizen to use force to protect oneself when assaulted is not essentially different from the duty of a police officer to *306 use force necessary to effect an arrest and that the plaintiff's reputation for turbulence and violence is equally relevant in both situations.
4. The requirement of relevancy is satisfied, but relevancy is not the only factor determining the admissibility of evidence of reputation. Under the general rule such evidence is excluded because its relevancy is outweighed by the harm which is likely to result from its use. As Wigmore puts it, "a doctrine of Auxiliary Policy * * * operates to exclude what is relevant, the policy of avoiding the uncontrollable and undue prejudice, and possible unjust condemnation, which such evidence might induce."[3] I Wigmore, Evidence § 56, p. 454 (3d ed 1940). However, the evidence is admissible as an exception to the general rule if the danger of the prejudicial use of the evidence is outweighed by other considerations. For example, an exception exists where the defendant is charged with murder and alleges that he was forced to kill in self-defense. Evidence that the deceased was a person of violent disposition would be relevant to show that he was the first aggressor. It is felt that defendant should be permitted to show that he acted to protect himself from a person who had habits of violence where his life or liberty is at stake. The exception was extended to civil cases of assault, although the reason for permitting defendant to explain his conduct in such cases is less compelling. The reason for extending the exception to civil actions for assault *307 and battery is not adequately explained. McCormick, Evidence § 159, p. 339 (1954) states that "probably there is in these cases a special need even beyond that in most cases of charges of crime in civil actions, for knowing the dispositions of the parties." Perhaps the exception was extended to civil cases of assault and battery not so much as a matter of need but rather as a way of giving recognition to the strong tradition that a man has a right to use force before he retreats from an aggressor. If we are to extend the exception further to embrace cases such as we have before us, we must find some equivalent consideration of policy warranting the use of reputation evidence.
The evidence of plaintiff's reputation is not sought to be used to show that he was the first aggressor and that defendant was forced to act in the face of danger. Defendant wishes to use the evidence to support an inference that a man is more likely to resist arrest when he has a violent disposition. In both cases, the defendant seeks to use the evidence to justify his conduct in injuring the plaintiff; in one case to show that he was justified in using force to defend himself, and in the other case to show that he was justified in overcoming resistance to arrest. The exception in self-defense cases might be rested upon the ground suggested above, as we have suggested. However, the question here is not whether the self-defense exception is sound but whether we should add another exception to the exclusionary rule in cases involving resistance to arrest. We see no reason for doing so. It would be helpful to police officers, in defending charges of injury incident to an arrest, if they were permitted to use reputation evidence to support the contention that the arrest was resisted. And it may be said that a police officer should not be inhibited in *308 carrying out his duty by the prospect of obstacles of proof. But we see no special need for the exception in spite of this policy consideration. As we shall point out below, a police officer who makes an arrest has the benefit of a presumption that he acted in good faith in determining the amount of force necessary to make the arrest. This evidentiary aid is sufficient to serve the policy noted.
5. We hold that evidence of reputation was not admissible in the present case and that the court correctly granted the motion for a new trial.
The second ground urged in support of the motion for a new trial was that the court erred in giving the following instruction:
Plaintiff testified that defendant struck him when they were at a point directly in front of his house. He also testified that he was carrying three light bulbs and a bottle of vodka at that time. One of the light bulbs was broken. When plaintiff was asked on cross-examination when the light bulb was broken he said, "Evidently it happened in front of the house." Plaintiff introduced photographs taken by the sheriff of Hood River county after the incident which showed the surface of the driveway approximately 20 to 25 feet east of the place where plaintiff claimed he was struck by defendant. The photographs showed that on the surface of the driveway there was a splotch of blood, some glass from a broken light bulb, and two buttons which apparently were from plaintiff's shirt. Defendant *309 argues that these physical facts show incontrovertibly that plaintiff was not struck directly in front of his house and that, therefore, defendant was entitled to the instruction given.
6, 7. We do not regard this as an appropriate case for the application of the so-called incontrovertible physical facts rule. The presence of a splotch of blood on the driveway could be consistent with plaintiff's assertion that he was struck approximately 20 feet away. The presence of the broken glass and buttons are not as readily explained if plaintiff's version of the incident is accepted. But plaintiff could have been first struck in front of his house and thereafter struck again in the area of the driveway. After being struck in front of his house, he may have staggered 20 feet and then dropped the light bulbs. Other explanations consistent with plaintiff's assertion are possible. The incontrovertible physical facts instruction is appropriate only where the facts relied upon conflict irreconcilably with the testimony of the witness.[4] That is not the case here.
As a further ground for the motion for a new trial it is asserted that the court erred in giving the following instruction:
8, 9. It seems clear that ORS 41.360 was not intended by the legislature to constitute an exhaustive list of all possible rebuttable presumptions. As Mr. Justice ROSSMAN pointed out in his special concurring opinion in Bunnell v. Parelius, 166 Or 174, 190, 111 P2d 88 *311 (1941), "Our statute, by preceding the enumeration with the words `The following are of that kind,' indicates that the enumeration is only a partial compilation of the disputable presumptions." We now expressly hold that our statutes do not preclude us from recognizing disputable presumptions other than those enumerated in the statute. Further, we adopt the rule announced in the cases recognizing the presumption that a police officer acts in good faith in determining the amount of force to be used in making an arrest.[7]
10. The instruction in the present case was given as follows: "When making an arrest, a police officer is presumed to act in good faith in determining the amount of force to be used." This instruction correctly stated the law and defendant was entitled to have it given. It is not necessary for us to decide whether the facts of this case are within the presumption recognized in ORS 41.360 (1) (the presumption that "A person is innocent of crime or wrong") or ORS 41.360 (15) (the presumption that "Official duty has been regularly performed").[8]
In cross-examining defendant plaintiff offered in evidence a leaden "sap" which was similar to the one used by defendant upon plaintiff. Defendant differentiated the exhibit from the sap used by him on the ground that his sap had a longer handle and was "a lot more limber." Defendant objected to the exhibit on the ground that it was not the sap used by defendant. The objection was sustained.
11, 12. It is stated generally that the admissibility *312 of demonstrative evidence is within the discretion of the trial court. However, this does not mean that the trial court may arbitrarily exclude such evidence. If the evidence is material and relevant, it must be received unless there is some reason for excluding it.[9] The evidence may be excluded because it may produce undue prejudice, confuse the jury, or if for some other specific policy reason the harm which might result from its reception may outweigh the probative value of the evidence.
13, 14. If plaintiff had offered in evidence a sap of exactly the same type as that used by defendant, the trial court would have erred in excluding it under the circumstances existing in the present case.[10] The same would be true if the sap offered was not exactly the same but was not materially different, having in mind the purpose for which the exhibit was offered. The fact that the sap used by defendant had a longer handle and was "more limber" would not, it would seem, constitute a material difference which would warrant the exclusion of the exhibit. Other differences, such as the relative hardness or sharpness of the two instruments, could be material. Unless these differences are shown, there would be no reason for excluding the exhibit under the facts appearing in the transcript of this case. The trial court's discretion to receive or reject demonstrative evidence is broad and its exercise will not be disturbed on appeal unless it clearly appears arbitrary. Plaintiff has the right to have the exhibit received upon a retrial of the present cause, unless it *313 is shown that there is a material difference between the exhibit and the sap used by defendant.
The judgment of the lower court is affirmed.
PERRY, J., specially concurring.
I concur in the result reached by the majority, but I cannot agree with their statement that "If plaintiff had offered in evidence a sap of exactly the same type as that used by defendant, the trial court would have erred in excluding it under the circumstances existing in the present case."
Duplicates of originals may be used when it appears to be necessary to properly describe some article which is "rare and difficult to describe," or where the nature and properties of an article itself require consideration by a jury, or where, as with models, the model tends to explain how an event may have occurred. Murray v. Firemen's Ins. Co., 121 Or 165, 254 P 817; Perringer v. Lynn Food Co., (Mo App 1941) 148 SW2d 601; See also, 32 CJS 456, 457, Evidence, §§ 605-6, pp 456, 457.
From what has just been stated, then, the trial court's discretion in permitting or denying the admission of duplicates also lies in determining whether or not such duplicates will materially aid a jury in its determination of the facts relevant to the issues presented. Thus, if an article is simple of description so that a person of ordinary understanding would have no difficulty in understanding the qualities of such article by oral description, it cannot be said a court has abused its discretion in refusing the admission of a duplicate article offered.
In my opinion, any person of ordinary understanding would comprehend the nature of a "sap" from an oral description. Therefore, this court ought not to *314 invade the province of the trial court and determine as a matter of law that in all instances the trial court must admit exact duplicates unless they "may produce undue prejudice, confuse the jury, or if for some other specific policy reason the harm which might result from its reception may outweigh the probative value of the evidence."
Mr. Justice LUSK joins in this specially concurring opinion.
[1] McCormick, Evidence § 155, p. 325 (1954).
[2] Linkhart v. Savely, 190 Or 484, 227 P2d 187 (1951); Cain v. Skillin, 219 Ala 228, 121 So 521, 64 ALR 1022 (1929); Mong Ming Club v. Tang, 77 Ariz 63, 266 P2d 1091 (1954); Brown v. Simpson, 293 Ky 755, 170 SW2d 345 (1943); Davenport v. Silvey, 265 Mo 543, 178 SW 168 (1915).
[3] The dangers of using evidence of reputation are more specifically described in Wigmore's treatment of the subject in I Wigmore, Evidence § 56 (3d ed 1940): (1) Each trial would resolve itself into a question of which party could offer more character witnesses; (2) trials would be intolerably tedious and long; and (3) its nature is merely opinion, in which matters men are easily influenced by prejudice and bias.
[4] Oregon Motor Stages v. Portland Traction Co., 198 Or 16, 255 P2d 558 (1953); Cameron v. Goree, 182 Or 581, 189 P2d 596, 605 (1948); Van Zandt v. Goodman, 181 Or 80, 179 P2d 724, 725 (1947).
[5] West v. Nantz' Administrator, 267 Ky 113, 101 SW2d 673, 678 (1937); State v. Nolan, 354 Mo 980, 192 SW2d 1016, 1021 (1946); State v. Pugh, 101 N C 737, 7 SE 757 (1888); Schell v. Collis, 83 NW2d 422, 426 (N D 1957); State ex rel Mullins v. McClung, 123 W Va 682, 17 SE2d 621 (1941); O'Brien v. Snodgrass, 123 W Va 483, 16 SE2d 621, 624 (1941); Thompson v. Norfolk & W. Ry. Co., 116 W Va 705, 182 SE 880, 884 (1935); Barboursville ex rel Bates v. Taylor, 115 W Va 4, 174 SE 485, 92 ALR 1093 (1934).
[6] In Bunnell v. Parelius, 166 Or 174, 183, 111 P2d 88 (1941), a concurring opinion by Lusk, J. regards the Judson case as holding "that in this state the only presumptions are those enumerated in the statute." In a special concurring opinion in the same case, the contrary view is taken by Rossman, J.
In Davis v. Hearst, 160 Cal 143, 116 P 530 (1911), the California statute which is similar to ORS 41.360 appears to have been construed as an exclusive enumeration of the presumptions in that state.
[7] See cases cited in Note 5.
[8] The latter presumption "has been applied to acts of almost every class of officers." 1 Jones, Evidence § 45, p. 78 (5th ed 1958). Dillon v. Haskell, 78 Cal App2d 814, 178 P2d 462 (1947); West v. Nantz' Administrator, 267 Ky 113, 101 SW2d 673 (1937); Schell v. Collis, 83 NW2d 422 (N D 1957).
[9] IV Wigmore, Evidence, § 1151, p. 240 (3d ed 1940); McCormick, Evidence § 179, pp. 385-86 (1954).
[10] Cincinnati N.O. & T.P. Ry. v. Duvall, 263 Ky 387, 92 SW2d 363, 366 (1936); 20 Notre Dame Law 414, 416 (1945). | 399161bc051d732863c347a1d95166d911c4c241da17e52d3ed4e349a6dc2a08 | 1963-04-10T00:00:00Z |